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CASES AND MATERIALS ON CRIMINAL LAW Fourth Edition This new edition of Cases and Materials on Criminal Law has been thoroughly updated to provide a comprehensive selection of key materials drawn from law reports, legislation, Law Commission consultation papers and reports and Home Office publications. Clear and highly accessible, this volume is presented in a coherent structure and provides full coverage of the topics commonly found in the criminal law syllabus. The range of thoughtfully selected materials and authoritative commentary ensures that this book provides an essential collection of materials and analysis to stimulate the reader and assist in the study of this difficult and challenging area of law. New features include: • revised text design with clear page layout, headings and boxed and shaded sections to aid navigation and readability • chapter introductions to highlight the salient features under discussion • short chapter table of contents to enable easier navigation • “Comments and Questions” sections to encourage students to reflect on their reading • expanded further reading to encourage students to engage further with the subject • a Companion Website to provide regular updates to the book This book is an invaluable reference for students on undergraduate or CPE/PG Diploma in Law criminal law courses, particularly those studying independently or on distance learning programmes. Professor Mike Molan, BA, LLM, FHEA, Barrister, is Acting Executive Dean of the Faculty of Arts and Human Sciences at London South Bank University. CASES AND MATERIALS ON CRIMINAL LAW Fourth Edition Mike Molan First edition published 1997 by Cavendish Publishing Limited Second edition published 2001 by Cavendish Publishing Limited Third edition published 2005 by Cavendish Publishing Limited Fourth edition published 2008 by Routledge-Cavendish 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN Simultaneously published in the USA and Canada by Routledge-Cavendish 270 Madison Ave, New York, NY 10016 Routledge-Cavendish is an imprint of the Taylor & Francis Group, an informa business This edition published in the Taylor & Francis e-Library, 2008. “To purchase your own copy of this or any of Taylor & Francis or Routledge’s collection of thousands of eBooks please go to www.eBookstore.tandf.co.uk.” fourth edition © Molan, Mike T 2008 first edition © Taylor, Alan and Hungerford-Welch, Peter 1997 second edition © Molan, Mike T 2001 third edition © Molan, Mike T 2005 All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging in Publication Data A catalog record for this book has been requested ISBN 0-203-88583-X Master e-book ISBN ISBN10: 0–415–42461–5 (pbk) ISBN13: 978–0–415–42461–5 (pbk) PREFACE As with previous editions, this sourcebook seeks to provide a handy set of reference materials for students studying criminal law on undergraduate or CPE programmes. It does not seek to provide the more lengthy discourse one might expect from a traditional textbook, but does provide extended extracts on key topics enabling the reader to gain a better understanding of the rationale for the development of the law and the policy issues underpinning the leading cases. Coverage is therefore provided of the mainstream criminal offences through statutory and case law materials along with a comprehensive selection of key materials drawn from Law Commission consultation papers and reports, and Home Office publications. Since the publication of the 3rd edition there have been a number of significant developments in the field of substantive criminal law and these are reflected in the structure and content of this new edition. The long awaited reform of the law relating to deception offences has now come into effect in the shape of the Fraud Act 2006 and this has had the effect of replacing all the previous deception offences with new offences under the 2006 Act. These changes are fully reflected in the text. Recent decisions of note that are extracted and analysed include R v Kennedy (manslaughter based on supply of heroin); Attorney General for Jersey v Holley (provocation); R v Mark and R v Willoughby (elements of killing by gross negligence); R v Barnes (consent as a defence to sporting injuries); Attorney General’s Reference (No 3 of 2004) (accessorial liability) and R v Hatton (intoxicated mistake in self-defence cases). Consideration is also given to the likely changes to the law relating to corporate manslaughter, at the time of writing contained in the Corporate Manslaughter and Corporate Homicide Bill currently before Parliament. Two major law reform publications are extensively extracted and contextualised in this 4th edition: the Law Commission’s report on Murder, Manslaughter and Infanticide (Law Com No 304) – and the Law Commission’s Report on Inchoate Liability for Assisting and Encouraging Crime (Law Com 300). I would like to extend my thanks to staff at Routledge for their support and encouragement in producing this new edition, and as always love to my ‘pit lane’ crew, Alison, Grace, Joy, Miles and Parker who is still a mad hound. I have endeavoured to state the law as of 1st February 2007 although some later developments have been incorporated where possible. Professor Mike Molan London South Bank University May 2007 OUTLINE CONTENTS Preface Table of Cases Table of Statutes 1 Introduction to criminal law: framework and procedures v xiii xxxi 1 2 Actus reus: the external elements of an offence 54 3 Mens rea: the mental element 72 4 Homicide 145 5 Non-fatal offences against the person 252 6 Sexual offences 323 7 Accessorial liability 358 8 Inchoate offences 426 9 Theft 485 10 The Fraud Act 2006 558 11 Robbery, blackmail, burglary and going equipped 583 12 Criminal damage 610 13 Defences where mens rea is denied 631 14 Defences of compulsion 692 Index 785 DETAILED CONTENTS Preface Table of Cases Table of Statutes v xiii xxxi 1 Introduction to criminal law: framework and procedures 1.1 Introduction 1.2 What is criminal law? 1.3 Sources of criminal law 1.4 Interpreting criminal statutes 1.5 Classification of offences 1.6 The decision to prosecute 1.7 Establishing criminal liability – the burden and standard of proof 1.8 Criminal appeals 1.9 Codification of the criminal law 1.10 The impact of the Human Rights Act 1998 on substantive criminal law 1 1 2 5 7 7 9 16 25 34 2 Actus reus: the external elements of an offence 2.1 Terminology 2.2 A state of affairs amounting to an actus reus 2.3 Codification and law reform proposals 2.4 Actus reus must be voluntary 2.5 Criminal liability for omissions 54 54 55 56 56 57 3 Mens rea: the mental element 3.1 Introduction 3.2 Mens rea: intention – the background to the current law 3.3 Mens rea – recklessness 3.4 The significance of mistake 3.5 Children and proof of mens rea 3.6 Coincidence of actus reus and mens rea 3.7 Transferred malice 39 72 72 72 83 91 96 98 102 DETAILED CONTENTS 3.8 3.9 x Strict liability Corporate bodies and proof of mens rea 110 132 4 Homicide 4.1 Introduction 4.2 The actus reus of homicide – the victim must be a ‘life in being’ 4.3 Causation 4.4 The gap in time between the defendant’s act and the victim’s death 4.5 The mens rea for murder 4.6 Voluntary manslaughter 4.7 Involuntary manslaughter: unlawful act manslaughter 4.8 Involuntary manslaughter: killing by gross negligence 4.9 Causing or allowing the death of a child or vulnerable adult 4.10 Codification and law reform proposals 4.11 Corporate manslaughter 4.12 Reform of corporate manslaughter 145 145 149 153 174 175 186 224 234 243 244 247 249 5 Non-fatal offences against the person 5.1 Introduction 5.2 Section 18 Offences Against the Person Act 1861 – wounding or grievous bodily harm with intent 5.3 Section 20 Offences Against the Person Act 1861 – malicious wounding or grievous bodily harm 5.4 Section 47 Offences Against the Person Act 1861 – assault occasioning actual bodily harm 5.5 Poisoning 5.6 Common assault and battery 5.7 ‘Stalking’ 5.8 Racially motivated assaults and harassment 5.9 Codification and law reform proposals 5.10 Consent to physical harm as a defence 252 252 264 275 279 283 284 287 293 6 Sexual offences 6.1 Introduction 6.2 Rape – the need for reform 6.3 The reformed offence of rape 6.4 ‘Quasi-rape’ – assault by penetration 6.5 Sexual assault 6.6 Causing a person to engage in sexual activity without consent 6.7 Offences against children under the age of 13 6.8 Protection of children between 13 and 16 323 323 325 329 348 349 351 352 353 7 Accessorial liability 7.1 Introduction 358 358 253 257 DETAILED CONTENTS 7.2 7.3 7.4 7.5 7.6 7.7 7.8 7.9 7.10 Modes of participation: counselling Modes of participation: procuring Aiding and abetting Presence at the scene of the crime and failing to prevent the commission of offences How can an accomplice withdraw from participation in the commission of an offence? The mens rea of accomplices Establishing the mens rea of accomplices Where the principal commits acts outside the contemplation of the accomplice The relationship between the liability of the principal and the accomplice 360 361 364 366 372 380 383 389 416 8 Inchoate offences 8.1 Introduction 8.2 Incitement 8.3 Statutory conspiracy 8.4 Attempt 8.5 Doubly inchoate offences – inciting incitement 426 426 426 439 464 481 9 Theft 9.1 9.2 9.3 9.4 9.5 9.6 9.7 9.8 485 485 486 501 522 532 538 545 549 Introduction Property: the statutory definition Appropriation Property belonging to another Dishonesty Intention to permanently deprive Making off without payment Taking a motor vehicle or other conveyance without authority 10 The Fraud Act 2006 10.1 Introduction 10.2 Why was it necessary to replace deception offences with fraud offences? 10.3 Section 2 of the Fraud Act 2006 – fraud by false representation 10.4 Section 3 of the Fraud Act 2006 – fraud by failing to disclose information 10.5 Section 4 of the Fraud Act 2006 – fraud by abuse of position 10.6 Section 11 of the Fraud Act 2006 – dishonestly obtaining services 10.7 Other offences under the Fraud Act 2006 10.8 Should dishonesty have been retained as an element of the Fraud Act 2006 offences? 558 558 559 563 569 571 573 578 579 xi DETAILED CONTENTS 11 Robbery, blackmail, burglary and going equipped 11.1 Introduction: robbery 11.2 Blackmail 11.3 Burglary 11.4 Trespass with intent to commit a sexual offence 11.5 Aggravated burglary 11.6 Going equipped for stealing, etc 583 583 587 591 601 602 606 12 Criminal damage 12.1 Introduction 12.2 Property belonging to another 12.3 Damage or destroy 12.4 Without lawful excuse 12.5 Aggravated criminal damage 12.6 Other offences under the Criminal Damage Act 1971 12.7 Racially motivated criminal damage 610 610 611 612 614 620 628 628 13 Defences where mens rea is denied 13.1 Voluntary intoxication 13.2 Involuntary intoxication 13.3 Codification and law reform proposals 13.4 Sane automatism 13.5 Insane automatism 631 631 645 650 655 666 14 Defences of compulsion 14.1 Introduction 14.2 Duress per minas 14.3 The availability of the defence of duress per minas: murder and attempted murder 14.4 The availability of the defence of duress per minas: where a defendant voluntarily exposes himself to the risk of threats 14.5 Duress by threats – codification and law reform proposals 14.6 Duress of circumstances 14.7 A common law defence of necessity? 14.8 Self-defence 14.9 The statutory defence of reasonable force – Criminal Law Act 1967 14.10 Crown prosecution guidance on self-defence 14.11 The relevance of the defendant’s perception of the need to act in self-defence and the force required 14.12 Self-defence and necessity 14.13 Self-defence – codification and law reform proposals 692 692 693 Index xii 704 710 714 722 730 741 754 755 757 766 768 785 TABLE OF CASES A [2001] UKHL 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 Re A (Children) (Conjoined Twins: Surgical Separation) [2000] 4 All ER 961 . . . . . . 61, 151, 693, 732, 767 A v UK (1999) 27 EHRR 611 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 Abbott v R [1977] AC 755 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 699, 704, 705, 707, 708 Abdul-Hussain and Others [1999] Crim LR 570 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 695, 740, 741 Abdullahi [2006] All ER (D) 334 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 355 Absolom . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 498 Acott [1997] 1 All ER 706 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206 Adams [1995] 1 WLR 52 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 561 Adomako [1994] 3 All ER 79; [1995] 1 AC 171; [1994] 3 WLR 288. . . . . 44, 46, 141, 153, 238, 240 ADT v United Kingdom [2000] Crim LR 1009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 Ahluwalia [1992] 4 All ER 889 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208, 212, 215 Airedale National Health Service Trust v Bland [1993] 1 All ER 82 . . . . . . . . . . . 67, 740, 767 Aitken, Bennet and Barson (1992) 95 Cr App R 304. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 643 Aitken and Others [1992] 1 WLR 1066 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 300 Albert v Lavin [1982] AC 546 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 316 Alford (JF) Transport Ltd; Alford; Payne [1997] 2 Cr App R 326 . . . . . . . . . . . . . . . . . . . . . . . 370 Allan [1965] 1 QB 130 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 370 Allen [1985] AC 1029 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 547 Allen [1988] Crim LR 698 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 645, 646 Allsop 64 Cr App R 29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 458 Alphacell Ltd v Woodward [1972] AC 824 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122 Altham [2006] EWCA Crim 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 728 Ambler [1979] RTR 217 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 554 Anderson; Morris [1966] 2 QB 110 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 396, 397, 398, 399 Anderson [1986] AC 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 441, 443, 446, 448 Anderton v Ryan [1985] AC 560 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 476, 477, 479, 480, 481 Andrews [2003] Crim LR 477 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 231, 233 Andrews v DPP [1937] AC 576 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 232, 238, 241, 623 Andronicou v Cyprus [1998] Crim LR 823 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 TABLE OF CASES Appleyard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 617 Armstrong [2000] Crim LR 379 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 430, 434 Ashford and Smith [1988] Crim LR 682 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 617, 618 Ashingdane v United Kingdom (1985) 7 EHRR 528 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Associated Octel Ltd [1996] 4 All ER 846, [1996] 1 WLR 1543 . . . . . . . . . . . . . . . . . . . . . . . 143 Atakpu and Abrahams [1994] QB 69 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 520 Attorney General for Jersey v Holley (Jersey) [2005] UKPC 23 . . . . . . . . . 213, 220, 714, 721 Attorney General for Northern Ireland’s Ref (No 1 of 1975) [1977] AC 105 . . . . . . . 752, 753 Attorney General for South Australia v Brown [1960] AC 432 . . . . . . . . . . . . . . . . . . . . 649, 659 Attorney General v Lockwood 9 M & W 378 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126 Attorney General’s Reference (No 1 of 1975) [1975] QB 773 . . . . . . . . . . . . . . . . . . . . . . . . . . 361 Attorney General’s Reference (No 1 of 1982) [1983] QB 751 . . . . . . . . . . . . . . . . . . . . . . . . . . 456 Attorney General’s Reference (No 1 of 1983) [1985] QB 182 . . . . . . . . . . . . . . . . . . . . . . . . . . 530 Attorney General’s Reference (No 1 of 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 562 Attorney General’s Reference (No 1 of 1992) [1993] 1 WLR 274 . . . . . . . . . . . . . . . . . . . . . . 465 Attorney General’s Reference (No 2 of 1982) [1984] QB 624 . . . . . . . . . . . . . . . . . . . . . 532, 533 Attorney General’s Reference (No 2 of 1992) [1994] QB 91 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 657 Attorney General’s Reference (No 2 of 1999) [2000] 3 All ER 182 . . . . . . . . . . . 139, 240, 242 Attorney General’s Reference (No 2 of 2004) [2005] EWCA Crim 1415 . . . . . . . . . . . . . . . . 728 Attorney General’s Reference (No 3 of 1992) [1994] 1 WLR 409 . . . . . . . . . . . . 471, 474, 626 Attorney General’s Reference (No 3 of 1994) [1997] 3 All ER 936 . . . . . . 31, 101, 104, 149, 151, 176, 233 Attorney General’s Reference (No 3 of 2004) [2005] EWCA Crim 1882. . . . . . . . . . . 400, 407 Attorney General’s Reference (No 4 of 1980) [1981] 1 WLR 705 . . . . . . . . . . . . . . . . . . . . . . . . 99 Attorney General’s Reference (No 4 of 2004) [2005] EWCA Crim 889 . . . . . . . . . . . . . . . . . 286 Attorney General’s Reference (No 6 of 1980) [1981] QB 715 . . . . . . . . . . . . . . . . . . . . . 295, 304 Attorney General’s Reference (No 28 of 1996) [1997] 2 Cr App R (S) 206 . . . . . . . . . . . . . . 340 Attorney General’s Reference (No 79 of 2006) Whitta [2006] EWCA Crim 2626 . . . . . . 340, 341, 349, 351 Attorney General’s References (Nos 1 and 2 of 1979) [1980] QB 180 . . . . . . . . . . . . . . . . . . . 599 Ayres [1984] AC 447 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 456 Aziz [1993] Crim LR 708 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 545 B (Court of Appeal, Criminal Division) 16 October 2006 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 332 B v DPP [2000] 1 All ER 833 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92, 93, 115 Bailey (1978) 66 Cr App R 31 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193 Bailey (John) [1983] 1 WLR 760 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 641, 655, 663 Baillie [1995] 2 Cr App R 31 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209 Bainbridge [1960] 1 QB 129 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 364, 383, 387 Baker [1994] Crim LR 444 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 380 Baker and Ward [1999] 2 Cr App R 335 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 712 Baker and Wilkins [1997] Crim LR 497 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 619, 629 Baldessare (1930) 22 Cr App R 70 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 390 Ball [1989] Crim LR 730 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 231 xiv TABLE OF CASES Bamborough [1996] Crim LR 744 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 402 Bank of New South Wales v Piper [1897] AC 383 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 Barnes [2004] ECA Crim 3246 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 301, 305, 311 Bateman (1925) 19 Cr App R 8; [1925] All ER Rep 45; [1925] 94 LJKB 791 . . . . . 45, 142, 234, 238, 239, 240, 241 Re Beaney . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 517 Beard [1920] AC 479 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 632, 633, 635, 637, 638, 639, 647, 659 Becerra and Cooper (1975) 62 Cr App R 212 . . . . . . . . . . . . . . . . . . . . . . . . . . . 372, 375, 377, 379 Beckford v R [1988] AC 130 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95, 757, 766, 770 Beech (1912) 7 Cr App R 197 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273 Beecham (1851) 5 Cox CC 181 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 542 Bell [1984] Crim LR 685 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 682 Bell [1992] RTR 335 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 727 Bell v Lever Brothers [1932] AC 161. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 512 Benge (1865) 4 F & F 594 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 Bentley [1999] Crim LR 330 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Betts and Ridley (1930) 22 Cr App R 148 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 390 Bevans (1988) 87 Cr App R 64 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 589 Bingham [1991] Crim LR 433. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 662, 682 Bird [1985] 1 WLR 816 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 747 Blackburn v Bowering [1994] 1 WLR 1324 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95 Black-Clawson International Ltd v Papierwerke Waldhoff-Anschaffenburg AG [1975] AC 591 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 510 Blaue [1975] 1 WLR 1411 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155, 163 Board of Trade v Owen [1957] AC 602 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 463, 464 Bogacki and Others [1973] QB 832 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 551 Boggeln v Williams [1978] 1 WLR 873 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 495 Bolton (1992) 94 Cr App R 74 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 440, 441 Bolton (HL) (Engineering) Co Ltd v T J Graham and Sons Ltd [1957] 1 QB 159 . . . . . . . . 135 Bonner [1970] 1 WLR 838 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 532 Bourhill v Young [1943] AC 92 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 271 Bourne [1939] 1 KB 687 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 422, 734, 737 Bow (1976) 64 Cr App R 54 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 551, 552 Bowden [1993] Crim LR 380 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 645 Bowen [1997] 1 WLR 372 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702, 721 Boyle (1986) 84 Cr App R 270 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 468 Bradish (1990) 90 Cr App R 271 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130 Brady [2006] EWCA Crim 2413 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 262 Bratty v AG for Northern Ireland [1963] AC 386 . . . . . . . . . . . 633, 658, 660, 661, 670, 671, 672, 676, 678 Bravery v Bravery [1954] 3 All ER 59; [1954] 1 WLR 1169 . . . . . . . . . . . . . . . . . . . . . . . . . . . 306 Breaks and Huggan [1998] Crim LR 349 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 531 Briggs [2004] 1 Cr App R 34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 518 British Steel plc [1995] 1 WLR 1356 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141, 143 xv TABLE OF CASES Brooks and Brooks (1982) 76 Cr App R 66 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 546 Broome v Perkins . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 665 Brown [1985] Crim LR 212 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 596, 601 Brown and Others [1994] 1 AC 212 . . . . . . . . . . 235, 296, 299, 300, 304, 306, 307, 311, 312 Brown v Stott [2001] 2 All ER 97 PC; [2001] 2 WLR 817 . . . . . . . . . . . . . . . . . . 21, 39, 42, 49 Brutus v Cozens (1972) 56 Cr App R 799, [1973] AC 854 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 277 Bryce [2004] EWCA Crim 1231 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 385 Bundy [1977] 1 WLR 914 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 607 Burgess [1991] 1 QB 92 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 674 Burns (1973) 58 Cr App R 364 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 653 Burstow [1997] 1 Cr App R 144 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .259, 260, 272 Burton v Islington Health Authority [1993] QB 204 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151 Button 3 Cox CC 229 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 455 Byrne [1960] 2 QB 396; (1960) 44 Cr App R 246 . . . . . . . . . . . . . . . . . . . . . . . . . . . 191, 194, 659 Byrne v Kinematograph Renters Society Ltd [1958] 2 All ER 579 . . . . . . . . . . . . . . . . . . . . . 597 C [2005] EWCA Crim 2817. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 430 C (A Minor) v Eisenhower (sub nom JJC v Eisenhower) [1983] 3 WLR 537 . . . . . . . . . . . . 253 C v DPP [1995] 2 All ER 43; [1996] AC 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 142, 144 Caldwell [1981] 1 All ER 961; [1982] AC 341 . . . . . . . . . . . 83, 142, 262, 610, 623, 640, 641 The Calgarth [1926] P 93 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 598 Calhaem [1985] 1 QB 808 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 360 Cambridge [1994] 2 All ER 760, [1994] 1 WLR 971 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206 Campbell [1997] Crim LR 495 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195 Camplin [1978] AC 705 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207, 211, 213 Carter [1959] VR 105 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 661 Castle [2004] All ER (D) 289 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90 Cato [1976] 1 All ER 260; (1976) 62 Cr App Rep 41; [1976] 1 WLR 110. . . . . . . . . . . . . 226, 227, 277 Chan Wing-Siu v R [1985] AC 168 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 391, 393, 397, 399, 410 Chan-Fook [1994] 1 WLR 689 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 260, 271, 273 Charlson [1955] 1 WLR 317 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 676, 679, 680 Cheshire [1991] 1 WLR 844 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167, 171, 171 Church [1966] 1 QB 59 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101, 232, 408, 633 Churchill [1967] 2 AC 224 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 450 Clarence (1888) 22 QBD 23; [1886] All ER Rep 133. . . . . . . . . . . . . . . . . . . 259, 306, 308, 310 Clarke [1972] 1 All ER 219 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 667 Clarkson and Others [1971] 1 WLR 1402 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 369 Clear [1968] 1 QB 670 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 587, 588 Clegg [1995] 1 AC 482 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 751 Clouden [1987] Crim LR 56 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 585 Codere (1916) 12 Cr App R 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 680 Cogan and Leak [1976] 1 QB 217 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 420 Cole [1994] Crim LR 582 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237, 694, 696, 697 xvi TABLE OF CASES Cole and Others [1993] Crim LR 300 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 644 Collins (1864) 9 Cox CC 497 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 479, 480 Collins (1972) 56 Cr App R 554; [1973] QB 100 . . . . . . . . . . . . . . . . . . . . . . 592, 597, 598, 601 Collins v DPP (1987) The Times, 20 October . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 495 Collins v Wilcock [1984] 1 WLR 1172 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 280 Collister and Warhurst (1955) 39 Cr App Rep 100 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 587 Colohan (2001) The Times, 14 June . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 284 Concannon [2002] Crim LR 213 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 251, 402 Condron [2000] Crim LR 679 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 195 Coney and others (1882) 8 QBD 534. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 295, 365, 366, 369 Conway [1989] 1 QB 290; [1988] 3 WLR 1238; (1989) 88 Cr App R 159 . . . . . . . 693, 723, 724, 725, 726, 738 Cooper and Compton [1947] 2 All ER 701 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 440 Cooper v McKenna ex p Cooper [1960] Qd LR 406 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 659 Corbett [1996] Crim LR 594 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163 Corcoran v Anderton (1980) 71 Cr App R 104 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 584 Cort [2004] QB 388 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 314 Cottle [1958] NZLR 999 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 659, 661 Court [1989] AC 28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 349 Cousins [1982] 1 QB 526 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 742 Cox v Riley (1986) 83 Cr App R 54 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 612, 614 CR v UK (1995) 21 EHHR 363 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 Croft [1944] 1 KB 295 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 373, 376 Cuerrier [1998] 2 SCR 371, [1999] 2 LRC 29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 309 Cullen [1993] Crim LR 936 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 645 Cunningham [1957] 2 QB 396 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84, 85, 261, 278, 303 Cunningham [1982] AC 566 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76, 176 Curley (1909) 2 Cr App R 96 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166 Curr [1968] 2 QB 944 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 428 D [2005] EWCA 1981 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 412 Dalby [1982] 1 All ER 916 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157, 227, 228 Davey v Lee [1968] 1 QB 366 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 465, 468 Davies v Flackett (1972) 116 Sol Jo 526 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 564 Davies v Harvey Law Rep 9 QB 433 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126 Davis (1881) 14 Cox CC 563 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 639 Davis (2000) The Times, 25 July . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Dawson, Nolan and Walmsley (1985) 81 Cr App R 150 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229 Dawson and James (1978) 68 Cr App R 170. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 585 De Freitas (1960) 2 WLR 523 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 743 Denton [1981] 1 WLR 1446 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 616 Dhaliwal [2006] EWCA CRIM 1139 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163 Dias [2002] Crim LR 490 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157, 225 Dica [2004] 3 All ER 593 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 264, 302, 305, 340 xvii TABLE OF CASES Dietschmann [2003] 1 All ER 897 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199 Diggin (1980) 72 Cr App R 204 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 554 Dobson v General Accident Fire and Life Assurance Corp plc [1990] 1 QB 274 . . . . 503, 507 Dobson v North Tyneside Health Authority [1996] 4 All ER 474 . . . . . . . . . . . . . . . . . . . . . . 494 Donovan [1934] 2 KB 498 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 270, 294, 299, 300, 307, 315 Doodeward and Spence (1908) 6 CLR 406 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 492, 494 Doorson v Netherlands (1996) 22 EHRR 330 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Dougal [2005] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 337 Doughty (1986) 83 Cr App R 319 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210 Doukas [1978] 1 WLR 372 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 579 Doyle [2004] EWCA Crim 2714 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 255 DPP (Jamaica) v Bailey [1995] 1 Cr App R 257 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 742 Dryden [1995] 4 All ER 987 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212 Du Cros v Lambourne [1907] 1 KB 40 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 370 Dudley and Stephens (1884) 14 QBD 273 . . . . . . . . . . . . . . 704, 726, 730, 733, 735, 738, 767 Duffy [1949] 1 All ER 932 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205, 208 Dume (1987) The Times, 16 October . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 282 Dunlop [2006] EWCA 1354 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Dunnington (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 482 Duru (1972) 58 CAR 151; [1974] 1 WLR 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 540, 560 Dyke and Munroe [2002] Crim LR 153 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 531 Dytham [1979] QB 722 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 Eagleton (1855) Dears CC 515 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 468 Easom [1971] 2 QB 315 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 543 Edmeads and Others (1828) 3 C & P 390 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 372 Edwards [1975] QB 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Edwards v Ddin [1976] 1 WLR 942 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 545 Eldredge v US (1932) 62 F 2d 449 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 377 Ellames [1974] 1 WLR 1391 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 608 Elliot v C [1983] 1 WLR 939 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83, 86 Elliott (1889) 16 Cox 710 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 Emmett (unreported, 18 June 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 307 Environment Agency v Empress Car Company [1999] 2 AC 22, [1998] 1 All ER 481 . . 157 Re F (Mental Patient: Sterilisation) [1990] 2 AC 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 740 Fagan (1974) unreported, 20 September . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 707, 708 Fagan v Metropolitan Police Commissioner [1969] 1 QB 439 . . . . . . . . . . . . 67, 265, 268, 280 Feely [1973] QB 530 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 458, 536 Fernandez [1996] 1 Cr App R 175 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 540 Fiak [2005] All ER (D) 103 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 614 Finlay [2003] EWCA Crim 3868 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157, 159 Firth (1990) 91 Cr App R 217 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 571 xviii TABLE OF CASES Fitzmaurice [1983] QB 1083 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 431, 483 Fitzpatrick v Kelly Law Rep 8 QB 337 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126 Flatt [1996] Crim LR 576 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702 Forde (1923) 17 Cr App R 99 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119 Francom (2000) The Times, 24 October . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Franklin (1883) 15 Cox CC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226 G [2003] 4 All ER 765; [2003] UKHL 50, [2004] 1 AC 1034. . . . . . . . 84, 88, 89, 186, 237, 241, 610, 623 Gallagher [1963] AC 349 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 633, 637, 647 Gamble [1989] NI 268 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 397, 399, 400, 409 Gammon (Hong Kong) Ltd v AG of Hong Kong [1985] 1 AC 1 . . . . . . . . . . . . . . . . . . . . . . . 125 Gannon (1988) 87 Cr App R 254 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 554 Gantz [2004] All ER (D) 69 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 279 Garwood [1987] 1 WLR 319 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 588 Gateway Foodmarkets Ltd [1997] 3 All ER 78 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143 Gauthier (1943) 29 Cr App R 113 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 659 Geddes (1996) 160 JP 697 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 469 Ghosh [1982] 1 QB 1053 . . . . . . . . . . . . . . . . . . . . 515, 533, 536, 537, 547, 566, 580, 581, 582 Gibbins and Proctor (1918) 13 Cr App R 134 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60, 61 Gilks [1972] 1 WLR 1341 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 526, 529 Gill (1993) 97 Cr App R 215 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 440 Gillard (1988) 87 Cr App R 189 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 276 Gillick v West Norfolk and Wisbech Area Health Authority and Department of Health and Social Security [1986] 1 AC 112 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 388 Gilmour [2000] 2 Cr App R 407 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 406 Gittens [1984] 1 QB 698 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196, 200 Goldman [2001] Crim LR 822 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 430 Goldstein [2004] 2 All ER 589 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 Gomez [1993] AC 442 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 505, 510, 511, 521, 532 Goodfellow (1986) 83 Cr App R 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229 Gotts [1992] 2 AC 412 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 704, 707, 740 Graham [1982] 1 WLR 294; (1981) 74 Cr App R 235 . . . . . . . . . . . . 697, 698, 702, 705, 724 Greatrex and Bates [1999] 1 C App R 126 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 409 Gregory (1981) 77 Cr App R 41 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 600 Grigson [2006] All ER (D) 99 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219 Grundy [1977] Crim LR 543 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 375, 378 Gullefer [1990] 1 WLR 1063 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 465, 468, 469 H (1997) The Times, 2 May . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 666 H [2002] 1 Cr App R 59 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 304 H [2005] All ER (D) 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 349, 350 H (Reasonable Chastisement) (2001) The Times, 18 May . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 Halai [1983] Crim LR 624 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 561 xix TABLE OF CASES Hale (1978) 68 Cr App R 415 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 586, 600 Hall (1972) 56 Cr App R 547 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 526 Hancock and Shankland [1986] 1 AC 455 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73, 77, 81, 392, 393 Handyside v UK (1976) 1 EHRR 737 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 Hardie [1985] 1 WLR 64 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 631, 640, 645, 655 Hardman and Others v The Chief Constable of Avon and Somerset Constabulary [1986] Crim LR 330 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 614 Hargreaves v Diddams Law Rep 10 QB 582 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126 Harley and Murray [1967] VR 526 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 693, 695 Harrow LBC v Shah [1999] 3 All ER 302 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131 Harvey (1980) 72 Cr App R 139 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 588 Hasan [2005] UKHL 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 693, 698, 701, 711 Hashman and Harrup v UK [2000] Crim LR 185 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 Hatton [2005] All ER (D) 308 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 764 Haughton v Smith [1973] 3 All ER 1109 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 476 Haystead v DPP [2000] 2 Cr App R 339 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 282 Hegarty [1994] Crim LR 353 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702 Henderson and Battley (unreported, 29 November 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 612 Hennessy [1989] 1 WLR 287 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 672, 682 Hill; Hall (1989) 89 Cr App R 74 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 617 Hill (1986) 83 Cr App R 386 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 278 Hill v Baxter [1958] 1 QB 277 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 656, 659, 674 Hillen and Pettigrew v ICI (Alkali) Ltd [1936] AC 65 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 598 Hills [2001] Crim LR 318 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 284 Hilton [1997] 2 Cr App R 445 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 519 Hinks [2000] 4 All ER 835; [2000] 2 Cr App R 1; [1998] Crim LR 904 . . . . . 50, 501, 509, 510, 522, 532 HM Advocate v Ritchie 1926 SC (J) 45 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 659 HM Coroner ex p Spooner (1989) 88 Cr App R 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143 Hobson (1997) The Times, 25 June . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195 Holden [1991] Crim LR 478 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 533 Holland (1841) 2 Mood & R 351 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156 Hollinshead [1985] AC 975; [1985] 1 All ER 850 . . . . . . . . . . . . . . . . . . . . . . . . . . 454, 456, 461 Holt and Another [1981] 1 WLR 1000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 563 Hope v Brown [1954] 1 WLR 250 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 468 Horne [1994] Crim LR 584 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702 Horseferry Road Magistrates’ Court ex p K [1997] QB 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 666 Howe and Others [1987] 1 AC 417 . . . . . . . . . . 423, 696, 697, 701, 704, 707, 708, 709, 723, 733, 738, 740, 749 Hudson and Taylor [1971] 2 QB 202 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 694, 696, 698, 738 Hughes (1857) Dears & B 248 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 Hui Chi-Ming v R [1992] 1 AC 34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 393, 404 Humphreys [1965] 3 All ER 689 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 422 Humphreys [1995] 4 All ER 889 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210 xx TABLE OF CASES Hunt (1978) 66 Cr App R 105 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 617 Hunt [1987] AC 352 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Hurst [1995] 1 Cr App R 82 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 696 Husseyn (1977) 67 Cr App R 131 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 599 Hyam v DPP [1975] AC 55 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176, 472 Hyde [1991] 1 QB 134 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 392, 396, 398, 399 Ibrams and Gregory (1981) 74 Cr App R 154 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207 Ilyas (1984) 78 Cr App R 17. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 468 Instan [1893] 1 QB 450 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 Invicta Plastics Ltd and Another v Clare [1976] RTR 251 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 427 Ireland; Burstow [1997] 4 All ER 225 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 258, 267, 270 Jackson [1983] Crim LR 617 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 563 Jaggard v Dickinson [1981] QB 527 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 624, 652 James: Karimi [2006] EWCA 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218 Johnson [1989] 1 WLR 740 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210 Johnson v Youden and Others [1950] 1 KB 544 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 380, 381 Jones; Smith [1976] 1 WLR 672 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 597 Jones [1990] RTR 33 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 727 Jones [2004] EWCA Crim 1981 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 629, 741 Jones [2006] UKHL 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 754 Jones (Kenneth Henry) [1990] 1 WLR 1057 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 465, 466 Jones (Terence) 83 Cr App R 375 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 301 Jordan (1956) 40 Cr App R 152 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167, 168, 170 Julien [1969] 1 WLR 839 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 747, 749 Kai-Whitewind [2005] EWCA Crim 1092 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187 Kansal (2001) The Times, June 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Kelleher [2003] EWCA Crim 2846 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 629 Kelly [1992] 97 Cr app R 245 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 604 Kelly [1999] 2 WLR 384 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 490, 525 Kelt [1977] 1 WLR 1365 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 605, 607 Kemp [1957] 1 QB 399 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 661, 667, 671, 678, 679 Kennedy [1999] Crim LR 65 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226, 227 Kennedy [2005] EWCA Crim 685 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159 Kennedy v HM Advocate 1944 SC (J) 171, 177 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 659 Khan [1990] 1 WLR 813 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 471, 473, 475 Khan [1998] Crim LR 830 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 236 Kimber [1983] 1 WLR 1118 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94, 314 Kingston [1995] 2 AC 355 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 645, 646 Kiszko (1979) 68 Cr App R 62 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194 Kitson (1955) 39 Cr App R 66 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 738 Knuller v DPP [1973] AC 435 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 459 xxi TABLE OF CASES Kohn (1979) 69 Cr App R 395 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 487, 489, 530 Konzani [2005] EWCA Crim 706 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 310, 313 Kumar [2006] EWCA CRIM 1946 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 350 Lacis v Cashmarts [1969] 2 QB 400 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 504 Lamb [1967] 2 QB 981 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226, 231 Lambert [2001] 3 All ER 577; [2001] 1 All ER 1014 . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 48, 195 Lambie [1982] AC 449; [1981] Crim LR 712 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 561, 566 Landy [1981] 1 WLR 355 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 457 Larkin (1942) 29 Cr App R 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 232 Larsonneur (1933) 24 Cr App R 74 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55, 56 Latif & Others [1996] 2 Cr App R 92 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160 Latimer (1886) 17 QB 359 (CCR) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103, 107 Lawrence [1971] 1 QB 373 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 514 Lawrence [1981] 1 All ER 974; [1982] AC 510 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142, 241 Lawrence and Pomroy (1971) 57 Cr App R 64 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 587 Lawrence v Metropolitan Police Commissioner [1972] AC 626 . . . . . . . . . . . . . . . . . . . . . . . . . 501 Le Brun [1992] 1 QB 61 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100 Leahy [1985] Crim LR 99 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 402 Leathley [1979] Crim LR 314 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 591 Lee [2000] Crim LR 991 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 282 Lee Chun-Chuen v R [1963] AC 220. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207 Lee v Simpson 3 CB 871 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126 Lennard’s Carrying Co Ltd v Asiatic Petroleum Co Ltd [1915] AC 705 . . . . . . . . . . . . . . . . . 135 Lewin v CPS [2002] EWHC 1049 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237 Lim Chin Aik v R [1963] AC 160 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116, 127 Linekar [1995] 3 All ER 69 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 340 Linneker [1906] 2 KB 99 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 468 Lipman [1970] 1 QB 152 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 632, 636, 641, 662, 663 Lloyd, Bhuee and Ali [1985] QB 829 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 541 Lloyd [1967] 1 QB 175 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194, 196 Lloyd v Director of Public Prosecutions [1992] 1 All ER 982 . . . . . . . . . . . . . . . . . . . . . . . . . . 629 Lobell [1957] 1 QB 547 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 659 Lolley’s case R & R 237 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126 Lomas (1913) 9 Cr App R 220 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 389 Loughnan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 696 Loukes [1996] 1 Cr App R 444 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 417 Lovesey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 405 Low v Blease [1975] Crim LR 513 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 486 Lowe [1973] QB 702 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57, 224 Luc Thiet Thuan v R [1997] AC 131 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212, 216, 217 Lynch [1975] 1 All ER 913; [1975] AC 653 . . . . . . . . . . . 693, 696, 699, 704, 705, 706, 707, 708, 710 Lynsey [1995] 2 All ER 654 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 264 xxii TABLE OF CASES McAuliffe v R (1995) 69 ALJR 621 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 391 McCann v United Kingdom (1996) 21 EHRR 97 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 McCreadie and Tume (1992) 96 Cr App R 143 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 495 McCready [1978] 1 WLR 1376 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 263 McDavitt [1981] Crim LR 843 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 546, 547 M’Growther (1746) Fost 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 694 McInnes [1971] 1 WLR 1600 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 748, 750 M’Loughlin (1838) 8 Car & P 635 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253 McLoughlin v O’Brian [1983] 1 AC 410 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 271 M’Naghten’s case (1843) 10 Cl & F 200 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 647, 666, 680, 681 M’Pherson (1857) Dears & B 197 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 544 MacPherson [1973] RTR 157 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 554 Maginnis (1987) 85 Cr App R 127 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 277 Majewski [1977] AC 443 . . . . . 392, 624, 625, 633, 640, 641, 643, 645, 647, 648, 663, 765 Majoram [2000] Crim LR 372 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163 Malcherek; Steel [1981] 1 WLR 690 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169 Mandair [1994] 2 WLR 700; [1995] 1 AC 208; [1994] 2 WLR 1376 . . . 257, 259, 260, 264 Marchant and McCallister (1984) 80 Cr App R 361. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 552 Mark [2004] All ER (D) 35 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237 Marks [1998] Crim LR 676 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210 Marsh (1996) 160 JP 721 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 556 Marshall; Coombes; Eren [1998] 2 Cr App R 282 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 538 Martin [1989] 1 All ER 652 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 697, 724, 728, 730, 738, 741 Martin [2001] All ER (D) 435 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 755, 761, 766 Matheson (1958) 42 Cr App R 145; [1958] 2 All ER 87 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193 Matthews; Alleyne [2003] 2 Cr App R 30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79 Maughan (1934) 24 Cr App R 130 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119 Maxwell [1978] 1 WLR 1350 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 387 May [1912] 3 KB 572 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 315 Mazo [1997] 2 Cr App R 518 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 514 Meade [1909] 1 KB 895 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 638 Meade’s and Belt’s Case (1823) 1 Lew CC 184 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 268, 269 Mellor [1996] 2 Cr App R 245 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172 Meridian Global Funds Management Asia v Securities Commission [1995] 3 WLR 413 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137, 140 Metropolitan Police Commissioner v Charles [1997] AC 177. . . . . . . . . . . . . . . . . 561, 565, 566 Middleton (1873) LR 2 CCR 38 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 529 Millard and Vernon [1987] Crim LR 393 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 471, 474 Miller [1954] 2 QB 282 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 270 Miller [1983] 2 AC 161; [1983] 1 All ER 978 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54, 64, 70 Millward [1994] Crim LR 527. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 418, 420 Minor (1955) 15 WWR (NS) 433 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 659 Misra; Srivastava [2004] EWCA Crim 2375 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44, 241 Mitchell [1983] QB 741 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105, 229 xxiii TABLE OF CASES Mitchell [1999] Crim LR 496 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 380, 540 Mitchell and King (1998) 163 JP 75 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 379, 380 Mohammed [2005] EWCA 1880 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218 Mohan [1976] QB 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 472 Moloney [1985] 1 AC 905 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73, 74, 77, 78, 81, 392, 393 Moore (1852) 3 Car & Kir 319 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 638 Moore v I Bresler Ltd [1944] 2 All ER 515 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139 Morden v Porter 7 CB (NS) 641; 29 LJ (MC) 213 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126 Morgan [1975] 2 All ER 347; [1976] AC 182 . . . . . . . . . . . . 92, 94, 118, 315, 326, 341, 343, 421, 624, 632, 634 Morhall [1996] AC 90 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 214 Morris (David) [1984] AC 320. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 504, 539 Morris v Tolman [1923] 1 KB 166 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 417 Moses [1991] Crim LR 617 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 454 Most (1881) 7 QBD 244 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 427 Mousell Brothers Ltd v London and North-Western Railway Co [1917] 2 KB 836 . . . . . . 124 Mowatt [1968] 1 QB 421 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 261, 262, 303 Moynes v Cooper [1956] 1 QB 439 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 529 Multinational Gas and Petrochemical Co v Multinational Gas and Petrochemical Services Ltd [1983] Ch 258 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137 Murphy 6 C & P 103 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 367 Mwai [1995] 3 NZLR 149, [1995] 4 LRC 719 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 309 National Coal Board v Gamble [1959] 1 QB 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 382, 389 Naviede [1997] Crim LR 662 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 519 Navvabi [1986] 1 WLR 1311 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 489 Nedrick [1986] 1 WLR 1025 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74 Newbury and Jones [1977] AC 500 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 232 Newell (1980) 71 Cr App R 331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212 Nicholls (1875) 13 Cox 75 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 Nichols v Hall Law Rep 8 CP 322 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126 Nock [1978] AC 979 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 431, 433, 462, 600 Norfolk Constabulary v Seekings [1986] Crim LR 167 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 591 Oatridge (1992) 94 Cr App R 367 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 758 O’Flaherty; Ryan; Toussaint [2004] EWCA Crim 526 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 378 O’Grady [1987] 1 QB 995 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 645, 653, 764, 765 O’Leary (1986) 82 Cr App R 341 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 603 Olugboja [1982] QB 320 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 325 Ortiz (1986) 83 Cr App R 173 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 693 Owino [1996] 2 Cr App R 128 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 760 Oxford v Moss (1978) 68 Cr App R 183. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 490, 498 P & O European Ferries (Dover) Ltd (1991) 93 Cr App R 72 . . . . . . . . . . . . . . . . . . . . . . 143, 247 xxiv TABLE OF CASES Pagett (1983) 76 Cr App R 279 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164, 172 Palmer v R [1971] AC 814 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 742, 743, 744, 746, 750, 753, 783 Parke Alder [1899] 1 QB 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130 Pawlicki [1992] 1 WLR 827 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 605, 607 Pearman (1984) 80 Cr App R 259 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 471, 472 Pearson 2 Lew 144 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 648 Pembliton (1874) LR 2 CCR 119 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102, 103, 107 Perka et al v R (1985) 13 DLR (4th) 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152, 726, 740 Perman [1996] 1 Cr App R 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 378, 380, 405 Peterson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 405 Pharmaceutical Society of Great Britain v Storkwain Ltd [1986] 1 WLR 903 . . . . . . . . . . . 113 Phekoo [1981] 1 WLR 1117 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94, 316 Pickford [1995] 1 Cr App R 420 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 434 Pilgram v Rice-Smith [1977] 2 All ER 659 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 496 Pitts (1842) C & M 284 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166 Pittwood (1902) 19 TLR 37 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 Podola [1960] 1 QB 325 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 659 Pommell [1995] 2 Cr App R 607 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 696, 697, 725, 738 Powell and Daniels; English [1999] AC 1 . . . . . . . . . . . . . . . . . . . . 176, 391, 402, 406, 409, 410 Pratt v DPP (2001) The Times, 22 August . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 284 Preddy [1996] 3 WLR 255; [1996] AC 815 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 539, 540, 560 Priestnall v Cornish [1979] Crim LR 310 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 766 Prince (1875) LR 2 CCR 154 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117, 119, 121, 126 Quick and Paddison [1973] 1 QB 910 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 660, 673 R [1992] AC 599 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 R (on the application of O) v Coventry Magistrates Court [2004] Crim LR 948 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 430 R (on the application of Rowley) v DPP [2003] EWHC 693 . . . . . . . . . . . . . . . . . . . . . . . . . . . 242 Rabey (1977) 17 OR (2d) 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 676 Race Relations Board v Applin [1973] QB 815 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 427 Rahman and Others [2007] EWCA Crim 342 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 400 Rai [2000] 1 Cr App R 242 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 570 Rance v Mid-Downs HA [1991] 1 QB 587 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 740 Ransford (1874) 13 Cox CC 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 482 Rashford [2005] All ER (D) 192 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 756 Rashid [1977] 1 WLR 298 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 579 Raven [1982] Crim LR 51 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212, 215 Ray [1974] AC 370 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 564 Reed [1982] Crim LR 819 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 441 Reid . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 404, 406 Renouf [1986] 1 WLR 522 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 742 Reynolds [1988] Crim LR 679 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195 xxv TABLE OF CASES Richards [1974] QB 776 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 424 Richardson [1998] 3 WLR 1292 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 313 Richardson and Irwin [1999] 1 Cr App R 392 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 642, 645 Roberts, Stephens and Day [2001] EWCA Crim 1594 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 412 Roberts (1971) 56 Cr App R 95 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161, 273, 275 Roberts v Egerton Law Rep 9 QB 494 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126 Robinson [1915] 2 KB 342 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 468 Robinson [1977] Crim LR 173 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 585 Rodger and Another (1997) The Times, 30 July . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 728 Roe v Kingerlee [1986] Crim LR 735 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 614 Roger and Rose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 697 Rogers [2003] 1 WLR 1374 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228 Rogers [2005] EWCA Crim 2863 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 286 Rook [1993] 1 WLR 1005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 375, 386 Rook [1997] Cr App R 327 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 409 Rossiter [1994] 2 All ER 752 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206 Rouse (William) v The Bradford Banking Co Ltd [1894] AC 586 . . . . . . . . . . . . . . . . . . . . . . 488 Rowland [2003] EWCA Crim 3636 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213 Rowley (1992) 94 Cr App R 95 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 482 Rubie v Faulkner [1940] 1 KB 571 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 371 Russell v HM Advocate [1946] SC (J) 37 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 659 Ryan (1996) 160 JP 610 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 596 S v UK App No 17634/91 (2 September 1991, unreported) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 Saik [2006] UKHL 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 442, 449 St George (1840) 9 C & P 483 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 266 St George’s Healthcare NHS Trust v S [1999] Fam 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 740, 741 Salabiaku v France (1988) 13 EHRR 379 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 20, 43 Salisbury [1976] VR 452 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259, 260 Sanders (1991) 93 Cr App R 245 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193 Sanderson (1994) 98 Cr App R 325 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197 Santana-Bermudez [2003] All ER (D) 168 (Nov) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 Sargeant (1997) 161 JP 127 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 351 Saric v Denmark Application 31913/96 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 Saunders and Archer (1573) 2 Plowd 473 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106, 372, 402 Savage; Parmenter [1992] 1 AC 699; [1991] 4 All ER 698 . . . 262, 263, 274, 275, 303, 643 Scarlett [1993] 4 All ER 629 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 760, 761 Scott v Metropolitan Police Commissioner [1975] AC 819 . . . . . . . . . . . . . . 454, 458, 561, 562 Seaboard Offshore Ltd v Secretary of State for Transport [1994] 2 All ER 99; [1994] 1 WLR 541 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141 Seaboyer (1991) 83 DLR (4th) 193 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 347 Secretary of State for the Home Department ex p Simms [1999] 3 WLR 328 . . . . . . . . . . . 115 Self [1992] 1 WLR 657 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 282 Shadbolt (1833) 5 Car & P 504 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254 xxvi TABLE OF CASES Shannon (1980) 71 Cr App R 192 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 743, 746 Sharp (1857) Dears & Bell 160 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 494 Sharp [1987] 1 QB 853 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 710 Shaw (Norman) v R [2002] Crim LR 140 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 766 Shaw v DPP [1962] AC 220 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 459 Shayler [2001] All ER (D) 99 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 741 Sheldrake v Director of Public Prosecutions [2003] 2 All ER 497 . . . . . . . . . . . . . . . . . . . . . . . . 22 Shendley [1970] Crim LR 49 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 585 Sheppard [1981] AC 395 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 Sherras v De Rutzen [1895] 1 QB 918 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122, 123, 124, 126 Shivpuri [1987] 1 AC 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 476, 477 Shohid and another [2003] All ER (D) 216 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167 Shortland [1996] 1 Cr App Rep 116 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 577 Silverman (1988) 86 Cr App R 213 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 564 Singh [1999] Crim LR 582 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237 Siracusa (1990) 90 Cr App R 340 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 441, 443, 446, 482 Sirat (1986) 83 Cr App R 41 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 482, 483 Skelton [1995] Crim LR 635 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 419 Small (1988) 86 Cr App R 170 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 535 Smethurst (2001) The Times, 13 April . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 Smith [1959] 2 QB 35 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154, 168 Smith [1961] AC 290 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73, 255 Smith [1979] Crim LR 251 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 Smith [2001] 1 CAR 31 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 762, 763 Smith [2004] All ER (D) 79 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 427 Smith [2006] All ER (D) 69 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 270 Smith (David Raymond) [1974] QB 354 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95, 623 Smith (Morgan) [2000] 4 All ER 289 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204, 212, 220 Smith (Roger) [1975] AC 476 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 433, 481 Smith (Sandie) [1982] Crim LR 531 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 663 Smith v Chief Superintendent, Woking Police Station (1983) 76 Cr App R 234 . . . . . . . . . 266 Smith (Wesley) [1963] 1 WLR 1200 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 391 Sodeman v The King [1936] 2 All ER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 667 Sofroniou [2004] 1 Cr App R 35 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 575 Southwark LBC v Williams [1971] 1 Ch 734 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 696, 733 Spriggs [1958] 1 QB 270 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192 Spriggs [1994] RTR 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 552 Steer [1988] AC 111 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 620, 622 Stephens Law Rep 1 QB 702 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126 Stephenson [1979] QB 695 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 625 Stewart [1995] 4 All ER 999 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206 Stewart and Schofield [1995] 3 All ER 159 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 403, 407 Stone and Dobinson [1977] QB 354 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62, 69, 237, 240 Stone and West London Coroner, ex parte Grey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 241 xxvii TABLE OF CASES Stonehouse [1978] AC 55 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 468, 471 Stones [1989] 1 WLR 156 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 603 Subramaniam v Public Prosecutor [1956] 1 WLR 965 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 695 Sullivan [1981] Crim LR 46 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 264 Sullivan [1984] 1 AC 156 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 669, 674, 676 Sunday Times v UK (1979) 2 EHRR 245. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 In Re Supply of Ready Mixed Concrete (No 2) [1995] 1 AC 456 . . . . . . . . . . . . . . . . . . 138, 139 SW v United Kingdom (1996) 21 EHRR 363 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43, 52 Sweet v Parsley [1970] AC 132 . . . . . . . . . . . . . 93, 94, 95, 111, 113, 116, 118, 121, 122, 124, 125, 128, 242 T [1990] Crim LR 256 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 663 T v United Kingdom; V v United Kingdom (1999) The Times, 17 December. . . . . . . . . . . . 96 Tabassum [2000] Crim LR 686; [2000] 2 Cr App R 328 . . . . . . . . . . . . . . . . . . . . . . . . . . 313, 350 Tandy [1989] 1 WLR 350 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195 Tarling (1978) 70 Cr App R 77 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 561 Taylor; Little [1992] 1 QB 645 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 279 Taylor (1779) 1 Leach 214 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 457 Terry [1984] AC 374 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 461 Tesco Ltd v Nattrass [1971] 2 All ER 127; [1972] AC 153 . . . . . . . . . . . . . 132, 138, 141, 142 Thabo Meli and Others v R [1954] 1 WLR 228 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98, 100 Thomas v R (1937) 59 CLR 279 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119 Thomson v HM Advocate (1983) SCCR 368 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 707 Thornton v Mitchell [1940] 1 All ER 339 (KBD) . . . . . . . . . . . . . . . . . . . . . . . . . . . 416, 418, 420 Togher and Others (2000) The Times, 21 November . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Tolson (1889) 23 QBD 168; [1886] All ER Rep 26 . . . . . . . . . . . . . . . . . . 54, 93, 113, 315, 658 Torkington v Magee [1902] 2 KB 427 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 486 Troughton v The Metropolitan Police [1987] Crim LR 138 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 546 Tuck v Robson [1970] 1 WLR 741 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 370, 371 Turner (1973) 57 Cr App R 932; [1974] AC 357 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 487 Turner (No 2) [1971] 1 WLR 901 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 522, 525 Tyler and Price (1838) 8 C & P 616 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 704 Tyrrell [1894] 1 QB 710 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 371 Uddin [1998] 2 All ER 744 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 401 United States v King 34 F302, 309 (CCEDKY 1888) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 347 Vasquez v The Queen [1994] 1 WLR 1304 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 Velumyl [1989] Crim LR 299 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 544 Venna [1976] QB 421 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 274, 315, 635 Vickers [1957] 2 QB . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175, 176 Vincent [2001] Crim LR 488 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 549 W and another [2006] All ER (D) 76 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 262 xxviii TABLE OF CASES Wacker [2002] Crim LR 839 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 234 Wai Yu-Tsang v R [1992] 1 AC 269 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 458, 562 Wain [1995] 2 Cr App R 660 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 528 Wakely [1990] Crim LR 119 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 396 Walkington [1979] 1 WLR 1169 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 591, 598 Waltham (1849) 3 Cox CC 442 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254 Walton and Ogden (1863) Le & Ca 288 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 588 Walton v R (1978) 66 Cr App R 25; [1978] AC 788 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194 Warburton and another [2006] EWCA Crim 627. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155 Warner (1970) 55 Cr App R 93 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 540 Watkins [1989] QB 821 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Watson [1989] 1 WLR 684 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167, 230, 233 Webster and Others; Warwick [1995] 2 All ER 168 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 621 Welham v DPP [1961] AC 103 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 454, 457, 458 Weller [2004] 1 Cr App R 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213 Wheelhouse [1994] Crim LR 756 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 419 Whelan [1934] IR 518 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 694 White [1908] All ER Rep 340 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153 Whitefield (1983) 79 Cr App R 36 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 375 Whitehouse [1995] 1 Cr App R 420. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 431 Whitehouse (alias Savage) (1941) 1 WWR 112 . . . . . . . . . . . . . . . . . . . . . . . . . 373, 375, 376, 379 Whiteley (1991) 93 Cr App R 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 613, 614 Whittaker and Another v Campbell [1984] QB 318 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 553 Whyte [1987] 3 All ER 416 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 746 Whyte (1988) 51 DLR 4th 481 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Widdowson (1986) 82 Cr App R 314 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 468 Wilcox v Jeffery [1951] 1 All ER 464 (KBD). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 364 Willer (1986) 83 Cr App R 225 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 722, 723, 725, 726, 738 Williams [1980] Crim LR 589 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 532 Williams [1984] 3 All ER 411 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 761 Williams and Another [1992] 1 WLR 380 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162 Williams (Gladstone) (1984) 78 Cr App R 276 . . . . . . . . . . . . . . . . 94, 280, 757, 764, 770, 772 Williamson (1807) 3 C&P 635 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 Willoughby [2004] All ER (D) 79 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237 Wilson, Jenkins & Jenkins (1984) 77 Cr App R 319 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 264 Wilson [1996] 3 WLR 125 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 299, 304 Wilson (Clarence) [1984] AC 242 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 257, 259 Wilsons and Clyde Coal Co Ltd v English [1937] 3 All ER 628, [1938] AC 57 . . . . . . . . . 143 Windle [1952] 2 QB 526 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 681 Wingrove v UK (1996) 1 BHRC 509 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 Wings Ltd v Ellis [1985] AC 272 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123 Winza Chief Constable of Kent (1983) The Times, 28 March . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 Withers [1975] AC 751 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 455 Woodage v Moss (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 726 xxix TABLE OF CASES Woodman [1974] 2 All ER 955 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 523 Woodrow 15 M & W 404 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126 Woodward [1995] Crim LR 487 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 419 Woollin [1999] 1 AC 82; [1998] 4 All ER 103 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75, 174, 255 Woolmington v DPP [1935] AC 462 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 25, 680 Wright [2000] Crim LR 510 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 693 X Ltd v UK (1982) 28 DR 77 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 Yip Chiu-Cheung v R [1994] 3 WLR 514 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 447 Young [1984] 1 WLR 654 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 653 Yule (1963) 47 Cr App R 229 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 527 xxx TABLE OF STATUTES Abortion Act 1967 . . . . . . . . . . . . . . . . . . . . 737 s 1(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 737 s 1(1)(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 739 Accessories and Abettors Act 1861 s 8 . . . . . . . . . . . . . . 359, 362, 363, 422, 443 Administration of Justice Act 1960 s 1(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 282 Adulteration Acts . . . . . . . . . . . . . . . . . . . . . . 126 Anatomy Act 1832 . . . . . . . . . . . . . . . 492, 525 Anti–Terrorism, Crime and Security Act 2001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 621 s 39. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 284 Aviation Security Act 1982 s 1(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 695 Building Materials and Housing Act 1945 . . 381, 382 s 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 381 s 7(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 381 s 7(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 382 Children and Young Persons Act 1933 . . . 57 s 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 s 1(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225 s 50 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 Children and Young Persons Act 1963 s 16(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 Computer Misuse Act 1990 . . . . . . . . . . . . 614 Crime and Disorder Act 1998 . . . . . . . . . . 284 s 28 . . . . . . . . . . . . . . . . . . . . . . . . . . . 286, 629 s 28(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 284 s 28(1)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 285 s 28(2)–(3) . . . . . . . . . . . . . . . . . . . . . . . . . . 284 s 28(4) . . . . . . . . . . . . . . . . . . . . 284, 285, 286 s 28(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 284 s 29(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 284 s 29(2) . . . . . . . . . . . . . . . . . . . . . . . . . 284, 285 s 29(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 285 s 30. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 629 s 30(1)–(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 628 s 30(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 629 s 31(1)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 285 s 32(1)–(6) . . . . . . . . . . . . . . . . . . . . . . . . . . 285 s 34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 Criminal Appeal Act 1907 s 4(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193 Criminal Appeal Act 1968 . . . . . . . . . . . . . . 26 s 1(2)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 642 s 2(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 s 2(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 421 s 3(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 262 s 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 s 12. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 674 s 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 s 33 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 s 33(1)–(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 s 34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 s 34(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 32 Criminal Appeal Act 1995 . . . . . . . . . . 26, 27 s 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 s 5(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 28 s 5(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 s 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 159 s 9(1)–(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 TABLE OF STATUTES s 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 s 11(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 s 11(2)–(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 s 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 s 13(1)–(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 s 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 s 14(1)–(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 s 14(4)–(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Criminal Attempts Act 1981 . . . . . 434, 461, 464, 465, 469, 476, 477, 484, 485 s 1 . . . . . . . . . . . . . . . . . . . 446, 466, 477, 478 s 1(1) . . . . . . 464, 466, 467, 468, 469, 478 s 1(2) . . . . . . 464, 475, 476, 478, 479, 544 s 1(3) . . . . . . . . . . . 464, 465, 476, 480, 544 s 1(3)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 480 s 1(4)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 482 s 1A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 471 s 1A(1)–(5) . . . . . . . . . . . . . . . . . . . . . . . . . 471 s 4(3) . . . . . . . . . . . . . . . . . . . . . . . . . . 465, 466 Criminal Damage Act 1971 . . . . 83,90, 610, 612, 614, 620, 629 s 1. . . . . . . . . 85, 86, 87, 88, 610, 614, 623 s 1(1). . . . . . . 64, 65, 67, 85, 86, 241, 442, 443, 474, 610, 611, 615, 616, 617, 620, 621, 623, 624, 625, 628 s 1(2). . . . . . . 85, 241, 442, 474, 475, 611, 620, 621, 622, 623, 626, 627 s 1(2)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 621 s 1(2)(b) . . . . . . . . . . . . . . . . . . . . . . . 621, 621 s 1(3) . . . . . . . . . . . . . . . . . . . . . . 64, 610, 615 s 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .615, 628 s 3 . . . . . . . . . . . . . . . . . . . . . . . . .64, 615, 616 s 5. . . . . . . . . 614, 615, 617, 624, 629, 772 s 5(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 614 s 5(2) . . . . . . 614, 617, 618, 624, 625, 629 s 5(2)(b) . . . . . . . . 618, 619, 620, 737, 771, 772, 774 s 5(2)(b)(i) . . . . . . . . . . . . . . . . . . . . . . . . . . 617 s 5(3) . . . . . . . . . . . . . . . . . . . . . 615, 624, 625 s 5(4) . . . . . . . . . . . . . . . . . . . . . . . . . . 615, 774 s 5(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 615 s 10(1)–(3) . . . . . . . . . . . . . . . . . . . . . . . . . . 611 xxxii Criminal Justice Act 1967 s 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73, 77 s 8(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78 Criminal Justice Act 1972. . . . . . . . . . . . . . . 31 s 36 . . . . . . . . . . . . 105, 140, 361, 408, 533 s 36(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 474 Criminal Justice Act 1987 s 12. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 459 Criminal Justice Act 1988 . . . . . . . . . . . . . 280 s 35 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 s 36 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 342 s 36(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 s 36(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 s 39 . . . . . . . . . . . . . . . . . 279, 280, 281, 282 s 40 . . . . . . . . . . . . . . . . . . . . . . . . . . . 264, 281 s 93. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 449 s 93A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 450 s 93C(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 449 Criminal Justice Act 1993 . . . . . . . . 435, 452, 471, 472 Criminal Justice Act 1994 s 34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Criminal Justice Act 2003 . . . . . . . 30, 32, 33 s 58. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163 Criminal Justice and Police Act 2001 . . . 284 s 42. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 284 Criminal Justice and Public Order Act 1994 s 60(8)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 s 142 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 325 Criminal Justice (Terrorism and Conspiracy) Act 1998 . . . . . . . . . . . . . . . . . . . . . . . . . 452 s 5(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 453, 454 s 5(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 454 Criminal Law Act 1967 . . . . . 482, 483, 693, 754, 782 s 1 . . . . . . . . . . . . . . . . . . . . . . . . 362, 422, 483 s 3 . . . . . . . . . . . . . . . . . . . 754, 772, 775, 778 s 3(1) . . . . . . . . . . . 741, 750, 754, 766, 771 s 5(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 483 s 5(7) . . . . . . . . . . . . . . . . . . . . . . . . . . 482, 483 s 6(3) . . . . . . . . . . . . . . . . . . . . . 257, 263, 275 Criminal Law Act 1977 . . . . . . . . . . 439, 443, 451, 461 s 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 447 TABLE OF STATUTES s 1(1) . . . . . . 439, 442, 443, 445, 446, 450 s 1(1A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 452 s 1(2) . . . . . . . . . . . 439, 448, 451, 452, 453 s 1(3)–(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . 452 s 1(8) . . . . . . . . . . . . . . . . . . . . . . . . . . 453, 454 s 1(9)–(14) . . . . . . . . . . . . . . . . . . . . . . . . . . 454 s 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 442 s 4(5)–(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . 454 s 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 442 s 5(1)–(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . 439 s 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 483 Criminal Law Act (Northern Ireland) 1967 s 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 751, 752 s 3(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 751 Criminal Procedure (Insanity) Act 1964 s 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 670 Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 . . . . . . 666 Customs and Excise Management Act 1979 s 170(1)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 477 s 170(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 447 Dangerous Drugs Act 1965 s 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111–13 Data Protection Act 1984 . . . . . . . . . . . . . . 499 Domestic Violence, Crime and Victims Act 2004 . . . . . . . . . . . . . . . . . . . . . . . . . 666 s 5 . . . . . . . . . . . . . . . . . . . . . . . . . 62, 243, 371 s 5(1)(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243 s 5(1)(d)(i)–(iii) . . . . . . . . . . . . . . . . . . . . . . 371 s 5(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243 s 5(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243 s 10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 283 Education Act 1944 s 39(2)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 737 Family Allowances Act 1945 . . . . . . 429, 430 Female Genital Mutilation Act 2003 . . . 304 s 1(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 304 Fire Services Act 1947 s 30(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 737 Firearms Act 1968 s 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130 s 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130 s 5(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130 s 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . 605, 606 s 57(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130 Food Act 1984 s 100. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Fraud Act 2006 . . . 5, 6, 501, 545, 558, 559, 563, 565, 578, 606 s 2 . . . . . . . . 235, 456, 487, 501, 502, 545, 546, 549, 554, 559, 563, 564, 565, 566, 567, 573, 574, 578, 579, 606 s 2(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 563 s 2(2)–(3) . . . . . . . . . . . . . . . . . . . . . . 563, 564 s 2(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 563 s 3 . . . . . . . . 235, 456, 487, 502, 559, 569, 570, 571, 573, 578, 606 s 4 . . . . . . . . 235, 456, 487, 502, 559, 571, 572, 573, 578, 606 s 4(1)–(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 571 s 5 . . . . . . . . . . . . . . . . . . . . . . . . 563, 564, 566 s 5(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 566 s 5(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 566 s 5(3)–(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . 566 s 6 . . . . . . . . . . . . . . . . . . . . . . . . 578, 579, 606 s 6(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 578 s 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 579 s 11 . . . . . . . 499, 559, 573, 574, 575, 578 s 11(1)–(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 574 Health and Safety at Work Act 1974 . . . . . . . . . . . . . . . . . . . . . . . . . 57, 249 s 3(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 141, 249 s 33(1)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 141 Homicide Act 1957 . . . . 175, 176, 177, 178, 181, 182, 183, 200, 201, 219 s 1 . . . . . . . . . . . . . . . . . . . . . . . . 175, 176, 183 s 2 . . . . . . . . . . . . . . 190, 191, 201, 215, 640 s 2(1) . . . . . . . . . . . . . . . . 193, 196, 199, 200 s 2(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195 s 2(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199 s 3 . . . 205, 208, 209, 211, 212, 215, 217 s 4(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190 s 4(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190 xxxiii TABLE OF STATUTES Human Fertilisation and Embryology Act 1990 s 37(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152 Human Rights Act 1998 . . . . 1, 26, 39, 324 s 2(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 s 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 s 3(1) . . . . . . . . . . . . . . . . . 20, 21, 27, 48, 49 Indecency with Children Act 1960 . . . . . 120 s 1 . . . . . . . . . . . . . . . . . . . . . . . . 118, 119, 120 s 1(1) . . . . . . . . . . . 115, 116, 117, 118, 121 Indictments Act 1915 s 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 544 Infant Life (Preservation) Act 1929 . . . . . 149 s 1(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 737, 738 s 1(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 Infanticide Act 1938 . . . . . . . . . . . . . . 187, 188 s 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187 s 1(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187 Larceny Act 1916 s 20(1)(iv) . . . . . . . . . . . . . . . . . . . . . . . . . . . 527 Law Reform (Year and a Day Rule) Act 1996 s 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174 s 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174 s 2(2)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174 Licensing Act 1872 s 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 Magistrates’ Courts Act 1980 s 17– s 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 s 44(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 359 s 101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 25 s 108(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 29 Malicious Damage Act 1861 . . . . . . . . . . . 610 s 51 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 Medicines Act 1968 . . . . . . . . . . . . . . . . . . . 113 s 45(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113 s 46(1)–(3) . . . . . . . . . . . . . . . . . . . . . . . . . . 113 s 52–s 53 . . . . . . . . . . . . . . . . . . . . . . . . . . . 113 s 58 . . . . . . . . . . . . . . . . . . . . . . . . . . . 113, 114 s 58(2)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 113 s 58(2)(b) . . . . . . . . . . . . . . . . . . . . . . 113, 233 s 58(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113 xxxiv s 58(4)(a) . . . . . . . . . . . . . . . . . . . . . . 113, 114 s 58(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113 s 63–s 65 . . . . . . . . . . . . . . . . . . . . . . . . . . . 113 s 67(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113 s 121 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113 Mental Health Act 1959 s 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 687 Mental Health Act 1983 . . . . . 649, 688, 689 s 12. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 683 Misuse of Drugs Act 1971 . . . . . . . . . 17, 226, 228, 728 s 3(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 477 s 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 433, 462 s 4(1)–(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 462 s 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 s 5(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 20 s 5(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 s 28 . . . . . . . . . . . . . . . . . . . . . . 17, 18, 19, 20 s 28(2). . . . . . . . . . . . . . . . . . . . . . . . 18, 20, 21 s 28(3). . . . . . . . . . . . . . . . . . . . . . . . 18, 20, 21 s 28(3)(b)(i) . . . . . . . . . . . . . . . . . . . . . . . . . . 21 s 28(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 National Health Service Act 1977 s 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 388 Northern Ireland (Emergency Provisions) Act 1973 . . . . . . . . . . . . . . . . . . . . . . . . . 388 Offences Against the Person Act 1861 . . . . . . . . 5, 6, 120, 287, 290, 291, 292, 308, 317 s 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 482 s 18 . . . 82, 252, 255, 257, 258, 259, 260, 261, 263, 264, 271, 272, 273, 298, 303, 309, 311, 404, 442, 631, 669 s 20 . . . . . . . 252, 253, 254, 255, 257, 258, 259, 260, 261, 262, 263, 264, 271, 272, 273, 274, 275, 296, 297, 298, 300, 301, 303, 305, 308, 309, 310, 311, 631, 636, 642, 643, 669 s 23 . . . . . . . . 84, 159, 161, 225, 226, 227, 228, 233, 275, 276, 277 s 24 . . . . . . . . . . . . 233, 275, 276, 277, 278 s 38. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 282 TABLE OF STATUTES s 39. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 275 s 42. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 281 s 47 . . . . . 8, 41, 252, 258, 262, 263, 264, 268, 269, 270, 271, 272, 273, 274, 275, 280, 281, 296, 297, 298, 299, 313, 636 s 50–s 51 . . . . . . . . . . . . . . . . . . . . . . . . . . . 117 s 55. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118 s 58. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 737 Police Act 1996 s 89(1)–(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 282 Police and Criminal Evidence Act 1984 . . . . . . . . . . . . . . . . . . . . . 7, 282, 779 s 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 s 24(4)–(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 s 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Prevention of Corruption Acts 1889 to 1916 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 499 Prosecution of Offences Act 1985 . . . . . . . . . 9 Protection from Harassment Act 1997 . . . . . . . . . . . . . . . . . . . . . 6, 283, 285 s 1(1)–(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . 283 s 2(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 283 s 4(1)–(3) . . . . . . . . . . . . . . . . . . . . . . 283, 284 Protection of Children Act 1978 s 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 Public Order Act 1985 s 1–s 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253 Public Order Act 1986 s 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 568 s 6(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 655 Regulation of Investigatory Powers Act 2000 s 53(2)–(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Rivers (Prevention of Pollution) Act 1951 . . . . . . . . . . . . . . . . . . . . . . . . 122, 123 s 2(1)(a) . . . . . . . . . . . . . . . . . . . . . . . . 122, 123 Road Safety Act 2006 . . . . . . . . . . . . . . . . . . 242 Road Traffic Act 1930 s 11(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 656 s 12(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 416 s 49(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 656 Road Traffic Act 1972 s 6(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 361, 362 s 36(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 737 Road Traffic Act 1988 s 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242, 418 s 2A(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 418 s 2A(2) . . . . . . . . . . . . . . . . . . . . . . . . 418, 420 s 2A(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 419 s 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 s 5(1)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 s 5(2) . . . . . . . . . . . . . . . . . . . . . . . . . 22, 23, 24 s 170(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 Road Traffic Act 1991 . . . . . . . . . . . . . . 89, 418 Road Traffic (Regulation) Act 1967 s 79. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 737 Sex Offenders Act 1997 . . . . . . . . . . . 118, 601 Sch 1 para 1(1)(b) . . . . . . . . . . . . . . . . . . . . . . . 118 Sexual Offences Act 1956 . . . 119, 120, 121, 335, 336, 345, 350, 473 s 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 325 s 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116, 120 s 6 . . . . . . . . . . . . . . . . . . . . . . . . 116, 120, 354 s 6(3) . . . . . . . . . . . . . . . . . . . . . . . . . . 119, 120 s 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 315 s 7(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120 s 9(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120 s 14 . . . . . . . . . . . . . . . . . 116, 119, 315, 345 s 14(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120 s 15 . . . . . . . . . . . . . . . . . . . . . . 116, 119, 345 s 26. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116 s 27(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121 s 28. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116 s 29(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121 s 45. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 315 Sexual Offences Act 2003 . . . . . . . 5, 92, 115, 305, 325, 330, 332, 335, 336, 338, 346, 349, 350, 352, 473 s 1 . . . 325, 329, 338, 340, 341, 342, 348, 349, 350, 352, 353 s 1(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 329 s 1(1)(c) . . . . . . . . . . . . . . . . . . . . . . . . 342, 346 s 1(2) . . . . . . . . . . . . . . . . . . . . . 329, 340, 347 xxxv TABLE OF STATUTES s 1(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 329 s 2 . . . . . . . . 325, 341, 342, 348, 349, 350, 351, 352 s 2(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 348 s 2(1)(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 342 s 2(2)–(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . 348 s 3 . . . . . . . . . . . . . 314, 325, 342, 349, 350, 351, 352 s 3(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 350 s 3(1)(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 342 s 3(2)–(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . 350 s 4 . . . . . . . . . . . . . . . . . . . . . . . . 325, 351, 352 s 4(1)–(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . 351 s 5 . . . . . . . . . . . . . . . . . . . 352, 353, 355, 356 s 5(1)–(2) . . . . . . . . . . . . . . . . . . . . . . 352, 353 s 6 . . . . . . . . . . . . . . . . . . . . . . . . 352, 353, 356 s 6(1)–(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 353 s 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 353, 356 s 7(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 353 s 7(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 353 s 8 . . . . . . . . . . . . . . . . . . . . . . . . 352, 353, 356 s 8(1)–(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . 353 s 9 . . . . . . . . . . . . . . . . . . . 352, 353, 354, 356 s 9(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 354 s 9(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 354 s 9(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 354 s 10 . . . . . . . . . . . . . . . . . 352, 353, 354, 356 s 10(1)–(3) . . . . . . . . . . . . . . . . . . . . . 354, 355 s 11 . . . . . . . . . . . . 352, 353, 354, 356, 431 s 11(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 355 s 11(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 355 s 12 . . . . . . . . . . . . . . . . . 353, 354, 355, 356 s 12(1)–(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 355 s 13 . . . . . . . . . . . . . . . . . . . . . . 353, 354, 356 s 13(1)–(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 356 s 16–s 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . 355 s 63. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 602 s 63(1)–(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 602 s 68. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 591 s 74 . . . . . . . 332, 333, 334, 335, 337, 339, 340, 349 s 75 . . . . . . . 329, 331, 332, 333, 336, 339, 340, 341, 348, 349 s 75(2)(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . 335 xxxvi s 75(2)(f) . . . . . . . . . . . . . 333, 334, 335, 336 s 76 . . . . . . . 329, 331, 332, 333, 340, 341, 348, 349 s 76(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 332 s 78. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 349 s 78(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 351 s 79(2)–(3) . . . . . . . . . . . . . . . . . . . . . . . . . . 329 s 79(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 350 Sexual Offences (Amendment) Act 1976 . . . . . . . . . . . . . . . . . . . . . . . . . 344 Sexual Offences (Amendment) Act 2000 . . . . . . . . . . . . . . . . . . . . . . . . . 356 Sexual Offences (Conspiracy And Incitement) Act 1996 s 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 435 s 2(1)–(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . 435 Sexual Offences (Conspiracy and Incitement) Act 1996 . . . . . . . . . . . . . . . . . . . . . . . . . 452 Terrorism Act 2000 . . . . . . . . . . . . . . . . . . . . . 22 s 11(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 s 57(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 s 118(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Theft Act 1968 . . . . . . 5, 487, 488, 490, 494, 495, 497, 502, 509, 516, 524, 525, 532, 536, 549, 558, 562, 563, 566, 595, 599, 601 s 1 . . . 485, 499, 508, 509, 510, 514, 517, 531, 536, 539, 546, 568, 574, 583, 586, 607 s 1(1) . . . . . 485, 502, 503, 505, 506, 507, 508, 509, 510, 514, 515, 516 s 1(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 501, 544 s 1(3) . . . . . . . . . . . . . . . . . . . . . 485, 508, 544 s 2 . . . . . . . . 510, 514, 517, 533, 534, 535, 536, 583 s 2(1) . . . . . . 502, 514, 517, 532, 536, 537 s 2(1)(a) . . . . . . . . 512, 513, 517, 532, 533, 534, 536 s 2(1)(b) . . . 508, 514, 515, 532, 534, 536 s 2(1)(c) . . . . . . . . . . . . . . . . . . . 532, 535, 536 s 2(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 536, 537 s 3 . . . . . . . . 501, 510, 514, 517, 539, 545, 583, 586 TABLE OF STATUTES s 3(1) . . . . . 501, 502, 504, 506, 507, 511, 512, 517, 520, 521, 524, 538, 539, 545, 547, 584, 600 s 3(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 501, 545 s 4. . . . . . . . . 487, 494, 495, 508, 517, 583 s 4(1) . . . . . . . . . . . . . . . . 486, 490, 508, 530 s 4(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 486, 508 s 4(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 486 s 4(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . 95, 487 s 5 . . . 493, 508, 516, 517, 525, 526, 583 s 5(1) . . . . . 508, 517, 522, 523, 524, 525, 532, 539 s 5(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 531 s 5(3) . . . . . . . . . . . 522, 526, 527, 528, 531 s 5(4) . . . . . . . . . . 517, 522, 526, 529, 530, 531, 532 s 6 . . . . . . . . . . . . . . . . . . . 517, 538, 540, 583 s 6(1) . . . . . . 538, 539, 540, 541, 542, 544 s 6(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 538, 540 s 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 485, 583 s 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 583, 586 s 8(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 583, 584 s 8(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 583 s 9 . . . . . . . . . . . . . . 591, 594, 597, 599, 607 s 9(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 591, 596 s 9(1)(a) . . . 230, 591, 599, 601, 603, 604 s 9(1)(b) . . . 591, 597, 600, 603, 604, 605 s 9(2)–(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . 591 s 10 . . . . . . . . . . . . . . . . . . . . . . 602, 605, 607 s 10(1) . . . . . . . . . . . . . . . . . . . . 602, 603, 604 s 10(1)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 605 s 10(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 602 s 11(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 508 s 12 . . . . . . . . . . . . 550, 552, 553, 554, 607 s 12(1) . . . . . 508, 550, 551, 553, 554, 555 s 12(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 549 s 12(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 550 s 12(6) . . . . . . . . . . . . . . . . . . . . . . . . . 550, 554 s 12(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 550 s 12(7)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 550 s 12A . . . . . . . . . . . . . . . . . . . . . . . . . . 554, 556 s 12A(1) . . . . . . . . . . . . . . . . . . . . . . . 555, 556 s 12A(2) . . . . . . . . . . . . . . . . . . . . . . . 555, 556 s 12A(2)(a)–(d) . . . . . . . . . . . . . . . . . 555, 556 s 12A(3)–(6) . . . . . . . . . . . . . . . . . . . . . . . . 555 s 12A(7)–(8) . . . . . . . . . . . . . . . . . . . . . . . . 556 s 13 . . . . . . . . . . . . . . . . . 486, 495, 496, 508 s 13(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 495 s 15 . . . . . . . 248, 501, 505, 508, 509, 537, 558, 559, 560, 565, 568, 606 s 15(1) . . . . . . . . . . 502, 503, 504, 507, 564 s 15(4) . . . . . . . . . . . . . . . . . . . . . . . . . 564, 568 s 15A . . . . . . . . . . . . . . . . . . . . . 558, 559, 560 s 15B . . . . . . . . . . . . . . . . . . . . . . . . . . 558, 559 s 16 . . . . . . . . . . . . . . . . . . . . . . 248, 558, 559 s 17. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 248 s 18. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 248 s 20. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 560 s 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . 566, 587 s 21(1) . . . . . . . . . . . . . . . . . . . . . . . . . 587, 589 s 21(2)–(3) . . . . . . . . . . . . . . . . . . . . . . . . . . 587 s 24. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 521 s 25 . . . . . . . . . . . . . . . . . . . . . . 578, 606, 608 s 25(1) . . . . . . . . . . . . . . . . . . . . 579, 606, 608 s 25(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 606 s 25(3) . . . . . . . . . . . . . . . . . . . . . . . . . 606, 608 s 25(4)–(5) . . . . . . . . . . . . . . . . . . . . . . . . . . 606 s 34(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 508 s 34(2)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 566 Theft Act 1978 . . . . . . . . . . . . . . . . 5, 558, 573 s 1 . . . . . . . . . . . . . 499, 546, 558, 559, 573, 575, 578 s 1(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 570, 575 s 1(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 575, 577 s 1(3) . . . . . . . . . . . . . . . . . . . . . . . . . . 575, 576 s 2 . . . . . . . . . . . . . . 456, 461, 558, 559, 563 s 2(1)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 563 s 3 . . . . . . . . . . . . . . . . . . . 545, 547, 548, 549 s 3(1) . . . . . . . . . . . . . . . . . . . . . 545, 547, 548 s 3(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 545 s 3(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 545 Theft (Amendment) Act 1996 . . . . . . . . . . 558 Trade Descriptions Act 1968 . . . . . 123, 124, 132, 136 s 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124 s 11. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124 s 11(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132 s 12. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124 xxxvii TABLE OF STATUTES s 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . 123, 124 s 14(1)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 123 s 23. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124 s 24. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124 s 24(1) . . . . . . . . . . . . . . . . . . . . 132, 133, 137 s 24(1)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 133 s 24(1)(b) . . . . . . . . . . . . . . . . . . . . . . 133, 136 s 24(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133 Transport Act 1968 . . . . . . . . . . . . . . . . . . . . 370 s 99(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 370 Trial of Lunatics Act 1883 s 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 670, 671 Wireless Telegraphy Act 1949 s 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 427 s 1(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 427 Youth Justice and Criminal Evidence Act 1999 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 345 Secondary legislation Aliens Order 1920 Art 1(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 364 Art 1(4) . . . . . . . . . . . . . . . . . . . . . 364, 365 Art 18(2) . . . . . . . . . . . . . . . . . . . . . . . . . 364 Medicines (Prescription Only) Order 1980 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114 Art 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . 114 Art 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . 114 Art 13(1) . . . . . . . . . . . . . . . . . . . . . . . . . 114 Art 13(2) . . . . . . . . . . . . . . . . . . . . . . . . . 114 Art 13(3) . . . . . . . . . . . . . . . . . . . . . . . . . 114 International legislation Convention on the Rights of the Child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 Art 40(3) . . . . . . . . . . . . . . . . . . . . . . 97, 98 European Convention on Human Rights . . . . . . . . . . . . . . . . . . . . 20, 39, 324 Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Art 2(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 xxxviii Art 3 . . . . . . . . . . . . 41, 97, 98, 304, 728 Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . 41, 50 Art 6. . . . . . . . . 26, 41, 44, 50, 194, 402 Art 6(2) . . . . . . . . . . . . 16, 17, 21, 22, 42 Art 7 . . . . . . 43, 44, 46, 50, 51, 52, 242 Art 7(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . 46, 52 Art 8(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 Art 8(2). . . . . . . . . . . . . . . . . . . . . . . . 51, 52 Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . 47, 50 Art 10 . . . . . . . . . . . . . . 38, 47, 50, 52, 53 Art 10(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 52 Art 10(2) . . . . . . . . . . . . . . . . . . . . . . 51, 52 Art 11 . . . . . . . . . . . . . . . . . . . . . . . . . 48, 50 Art 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Art 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 Art 27(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 48 Art 46 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 New Zealand Securities Amendment Act 1988 s 20 . . . . . . . . . . . . . . . . . . . . . . . . . 137, 139 s 20(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . 139 s 20(4)(e) . . . . . . . . . . . . . . . . . . . . . . . . . 139 Singapore Immigration Ordinance . . . 127 s 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127 s 6(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128 s 6(3). . . . . . . . . . . . . . . . . . . . . . . . 127, 128 s 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127 s 16(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . 128 s 18(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . 128 s 19(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 128 s 29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128 s 31(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 128 s 41(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 128 s 56(d)–(e) . . . . . . . . . . . . . . . . . . . . . . . . 128 United States Constitution First Amendment . . . . . . . . . . . . . . . . . . 40 Universal Declaration of Human Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Art 29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 CHAPTER 1 INTRODUCTION TO CRIMINAL LAW: FRAMEWORK AND PROCEDURES CONTENTS 1.1 1.2 1.3 1.4 1.5 1.6 1.7 1.8 1.9 1.10 Introduction What is criminal law? Sources of criminal law Interpreting criminal statutes Classification of offences The decision to prosecute Establishing criminal liability – the burden and standard of proof Criminal appeals Codification of the criminal law The impact of the Human Rights Act 1998 on substantive criminal law 1 2 5 7 7 9 16 25 34 39 1.1 INTRODUCTION As a source of reference materials this is not a book designed to be read from beginning to end in a linear fashion. Most readers will dip into the chapters that follow in search of material relating to a specific aspect of the substantive criminal law. The substantive criminal law does not, however, exist in a vacuum. It is hard to have an effective understanding of the doctrinal aspects of criminal law without also having a grasp of the operational context. The materials that follow in this first chapter, therefore, provide a brief overview of the sources of criminal law, the approach taken by the courts in applying criminal statutes, the procedural options open to the prosecuting authorities, and the appeals processes that give rise to many of the precedents forming the backbone of the substantive law. The materials also illustrate the impact of the Human Rights Act 1998 on the operation of domestic substantive criminal law, and the contribution of the Law Commission to the on-going programme of law reform. There are many other interesting aspects of the criminal justice system that could be considered, such as punishment, crime prevention, and theories of deviancy, but they lie beyond the scope of this text. CASES AND MATERIALS ON CRIMINAL LAW 1.2 WHAT IS CRIMINAL LAW? Attempts to define criminal law are generally unhelpful if they stray far beyond restating the obvious – that criminal laws are prohibitions backed up by penal sanctions imposed on the actions of individuals (and corporate bodies) by those who hold sovereignty within the state. Attempting to find some moralistic basis for criminal law proves more elusive. It is not difficult to think of immoral activities that are not criminal (arguably infidelity), and activities that are criminal that one would hesitate to denounce as immoral (e.g. failing to display a car tax disc). In any event, notions of immorality are something of a moveable feast – consider the way in which the law relating to homosexual activity between consenting adult males has changed since 1967. How does criminal law differ from other areas of law, and how does one define the subject? In terms of purpose criminal law is properly seen as falling within the sphere of public, as opposed to private, law. Whereas the law of negligence is largely concerned with determining liability to financially compensate the victim of a tort, criminal law looks at the broader issues – should the defendant’s wrongdoing be labelled as criminal; if so, what should be the degree of fault required for liability; what punishment should be imposed to ensure that others are deterred from similar wrongdoing and the public protected from the defendant? In short there are considerations that arise in criminal law that have no direct counterpart in private law. Whereas in a negligence action the victim is at the core of the case in terms of compensation, the interests of the victim in a criminal case are very much a secondary consideration. A negligence action cannot proceed unless the victim wants it to. A criminal case can proceed even with a reluctant or unwilling victim because the prosecution is in the hands of the state and its agencies. The proceedings are fulfilling a public purpose. Criminal Law Doctrine and Theory – William Wilson (2nd ed, 2003) p 6 The major concerns of the criminal law may be expressed, therefore, as follows: A B 2 The support of public interests in: 1 preventing physical injury. This accounts for the crimes of murder, manslaughter, arson and other crimes of violence; also certain road traffic offences and those relating to public health and safety. 2 proscribing personal immorality deemed injurious to society’s well-being. This accounts for crimes such as bigamy, incest, sado-masochism, bestiality and obscenity, drug possession and supply. 3 preventing the moral corruption of the young through crimes such as gross indecency with children and unlawful sexual intercourse. 4 maintaining the integrity of the state and the administration of justice through crimes such as treason, perjury, perverting the course of justice, tax evasion. 5 maintaining public order and security through offences such as riot, affray, breach of the peace, public drunkenness. That citizens remaining free from: INTRODUCTION TO CRIMINAL LAW: FRAMEWORK AND PROCEDURES (a) undesired physical interference through crimes such as rape, assault, sexual assault, false imprisonment, harassment; (b) offence through crimes such as indecent exposure, indecency in public, solicitation; (c) undesired interference with property through crimes such as theft, robbery, taking and driving away a road vehicle, deception. The Definition of Crime – Glanville Williams (1955) Current Legal Problems 107 Is the effort [to define crime] worth making? The answer is that lawyers must try to clarify the notion of ‘crime’, because it suffuses a large part of the law. For example: there is generally no time limit for criminal proceedings, whereas civil proceedings are commenced differently, and often in different courts. A criminal prosecutor generally need not be the victim of the wrong, and a private criminal prosecutor is for many purposes not regarded as a party to the proceedings; he is certainly not ‘master’ of the proceedings in the sense that he can drop them at will; these rules are different in civil cases. The law of procedure may generally be waived in civil but not in criminal cases. There are many differences in the law of evidence, and several in respect of appeal . . . . . . The common-sense approach is to consider whether there are any intrinsic differences between the acts constituting crimes and civil wrongs respectively. It is perhaps natural to suppose that since ‘a crime’ differs from ‘a civil wrong’, there must be something in a crime to make it different from a civil wrong. As everybody knows, there is one serious hindrance to a solution of this kind. This is the overlap between crime and tort. Since the same act can be both a crime and a tort, as in murder and assault, it is impossible to divide the two branches of the law by reference to the type of act. So also it is impossible to divide them by reference to the physical consequences of the act, for if the act is the same the physical consequences must be the same. It has occurred to some that there is a possible escape from this difficulty. Although the act, and its consequences, are the same, the act and consequences have a number of different characteristics or aspects; and it may be possible to identify some of these characteristics as criminal and some as civil. Pursuing this line of thought, two separate aspects have been seized upon as identifying crime: the aspect of moral wrong and the aspect of damage to the public . . . The proposition that crime is a moral wrong may have this measure of truth: that the average crime is more shocking, and has graver social consequences, than the average tort. Yet crimes of strict responsibility can be committed without moral wrong, while torts and breaches of trust may be, and often are, gross moral wrongs. Even where a forbidden act is committed intentionally, a court deciding that it is a crime is not committed to the proposition that it is a moral wrong . . . The second intrinsic difference between crimes and civil wrongs found by some writers is in respect of the damage done. In tort there is almost invariably actual damage to some person, whereas in crime such damage is not essential, the threat being to the community as a whole . . . Again there are formidable objections. Some torts do not require damage (such as trespass and libel), while many crimes do involve private damage. Some crimes are punished as an affront to the moral feelings of the community although they cause no damage to the community as a whole. This is true of the group of crimes having in differing degrees a religious aspect: blasphemy, attempted suicide, abortion, bigamy. It is also largely true of obscenity and adult 3 CASES AND MATERIALS ON CRIMINAL LAW homosexuality. Even murder need not cause public damage: for example, when a mother kills her infant child. This creates no general sense of insecurity; the only material loss to society is the loss of the child, and whether that is economically a real loss or a gain depends on whether the country is under- or over-populated at the time. Evidently, the social condemnation of infant-killing rests on non-utilitarian ethics . . . . . . We have rejected all definitions purporting to distinguish between crimes and other wrongs by reference to the sort of thing that is done or the sort of physical, economic or social consequences that follow from it. Only one possibility now remains. A crime must be defined by reference to the legal consequences of the act. We must distinguish, primarily, not between crimes and civil wrongs but between criminal and civil proceedings. A crime then becomes an act that is capable of being followed by criminal proceedings, having one of the types of outcome (punishment, etc) known to follow these proceedings . . . As stated at the outset, there are many differences of procedure between crimes and civil wrongs. Often these differences are of no help in distinguishing between the two, because they are consequential differences – it is only when you know that the act is a crime or a civil wrong respectively that you know which procedure to select. However, some elements in procedure do assist in making the classification. When Parliament passes a statute forbidding certain conduct, it may refer in terms to certain procedural matters – such as trial on indictment, or summary conviction – which indicate that the act is to be a crime. Again, when it is disputed whether a given proceeding, such as a proceeding for a penalty, is criminal or civil, a point can be scored by showing that this proceeding has been held in the past to be governed by some procedural rule which is regarded as indicative of a criminal or civil proceeding, as the case may be . . . Since the courts thus make use of the whole law of procedure in aid of their task of classification, an attempt to define crime in terms of one item of procedure only is mistaken. This remark applies to the test of crime adopted by Kenny, following Austin and Clark, which links crime with the ability of the Crown to remit the sanction. This test tells you whether an act is a crime only if you already know whether the sanction is remissible by the Crown. Almost always, however, the latter has to be deduced from the former, instead of vice versa. Thus Kenny defines ignotum per ignotius. This objection would not be open if Kenny’s chosen procedural test were made available along with all the others. The procedural test does not give full assistance unless one is allowed to use the whole law of procedure. . . . In short, a crime is an act capable of being followed by criminal proceedings having a criminal outcome, and a proceeding or its outcome is criminal if it has certain characteristics which mark it as criminal. In a marginal case the court may have to balance one feature, which may suggest that the proceeding is criminal, against another feature, which may suggest the contrary. Walker, Crime and Criminology: A Critical Introduction (1987) pp 140–141 Objectives of the criminal law Is it possible to discuss the proper content of the criminal law in general terms? If the contents of criminal codes are examined with a sociological eye, no fewer than fourteen different objectives can be discerned: (a) the protection of human persons (and to some extent animals also) against intentional violence, cruelty, or unwelcome sexual approaches; 4 INTRODUCTION TO CRIMINAL LAW: FRAMEWORK AND PROCEDURES (b) the protection of people against some forms of unintended harm (for example from traffic, poisons, infections, radiation); (c) the protection of easily persuadable classes of people (that is, the young or the weakminded) against the abuse of their persons or property (for example by sexual intercourse or hire-purchase); (d) the prevention of acts which, even if the participants are adult and willing, are regarded as ‘unnatural’ (for example incest, . . . bestiality, drug ‘trips’); (e) the prevention of acts which, though not included under any of the previous headings, are performed so publicly as to shock other people (for example public nakedness, obscene language, or . . . copulation between consenting adults); (f) the discouragement of behaviour which might provoke disorder (such as insulting words at a public meeting); (g) the protection of property against theft, fraud, or damage; (h) the prevention of inconvenience (for example the obstruction of roads by vehicles); (i) the collection of revenue (for example keeping a motor car or television set without a licence); (j) the defence of the State (for example espionage or – in some countries – political criticism); (k) the enforcement of compulsory benevolence (for example the offence of failing to send one’s children to school); (l) the protection of social institutions, such as marriage or religious worship (for example by prohibiting bigamy or blasphemy); (m) the prevention of unreasonable discrimination (for example against ethnic groups, religions, the female sex); (n) the enforcement of the processes regarded as essential to these other purposes (for example offences connected with arrest, assisting offenders to escape conviction, and testimony at trials). 1.3 SOURCES OF CRIMINAL LAW The criminal law of England and Wales is made up of a patchwork of common law and statutory offences. Offences such as theft, burglary, robbery and fraud are based on comparatively recent statutory enactments; see the Theft Acts 1968, 1978 and the Fraud Act 2006. Sexual offences are now governed by the Sexual Offences Act 2003. Other offences, whilst statute based, are somewhat venerable – see for example grievous bodily harm, wounding and actual bodily harm – all offences still governed by the Offences Against the Person Act 1861. Problems inevitably arise when trying to apply such antiquated legislation to situations that the Victorian draftsman cannot possibly have contemplated; see further Chapter 5. Perhaps surprisingly some very serious offences are not creatures of statute at all, the most notable example being murder. It would be foolish to assume that there is any particular rhyme or reason as to whether or not an offence has the common law or statute as its source. The plain fact is that legislation to create or amend criminal offences has to wait its turn in the queue for parliamentary time. Most governments in recent years have struggled to find the time to act upon proposals for fundamental reform put forward by the Law Commission; see 1.8 below. All too often parliamentary time is made available on the basis of expediency for legislation 5 CASES AND MATERIALS ON CRIMINAL LAW dealing with a narrow matter that happens to be exciting the general public at that particular time. Hence there has been legislation to deal with ‘stalking’ – see the Protection from Harassment Act 1997 (Chapter 5.6) – but no thoroughgoing reform of the Offences Against the Person Act 1861. Deception has been placed on a new statutory footing by means of the Fraud Act 2006 (see Chapter 10), but the complexities and anomalies of secondary liability at common law continue to confound juries, judges and students of criminal law (see Chapter 7). There is a significant constitutional issue at stake here in terms of who should be creating the criminal law. In a parliamentary democracy there is a very cogent argument that new criminal offences should only be created by Parliament, and that major changes in substantive criminal law should only be sanctioned by Parliament. For judges to effect such changes is an apparent breach of the separation of powers. The reality, however, is that there are occasions where the judges feel that, given the failure of Parliament to take the initiative, they have little choice but to act. In Shaw v DPP [1962] AC 220, the defendant was charged, inter alia, with conspiracy to corrupt public morals. The House of Lords held, by a majority, that such an offence existed, notwithstanding that there was no clear precedent to that effect. Endorsing the view of the majority that the courts could ‘discover’ new offences at common law if necessary, Viscount Simonds observed: Need I say my Lords, that I am no advocate of the right of judges to create new criminal offences . . . But . . . in the sphere of criminal law, I entertain no doubt that there remains in the courts of law a residual power to enforce the supreme and fundamental purpose of the law, to conserve not only the safety and order but also the moral welfare of the state, and that it is their duty to guard it against attacks which may be the more insidious because they are novel and unprepared for. Against this, Lord Reid (dissenting) issued this clear warning: I think, or at least I hope, that it is now established that the courts cannot create new offences by individuals . . . when there is sufficient support from public opinion, Parliament does not hesitate to intervene. Where Parliament fears to tread it is not for the courts to rush in . . . In the course of his speech in C v DPP [1996] AC 1, Lord Lowry reviewed the principles upon which judges ought to reflect before engaging in judicial activism. In particular he expressed the view that judges: • should not be quick to impose their own remedies where the solution was doubtful; • should be reluctant to act where Parliament had clearly declined to do so, or had legislated in the area without dealing with the difficulty presented by the case in hand; 6 INTRODUCTION TO CRIMINAL LAW: FRAMEWORK AND PROCEDURES • should not lightly overturn fundamental legal doctrines; • should bear in mind that issues of social policy should be left for determination by the legislature; • should not venture dynamic solutions unless finality was likely to result. 1.4 INTERPRETING CRIMINAL STATUTES Where the issue is the correct interpretation of a statute, judges will often seek to substantiate their decisions by opining that they are simply giving effect to the intention of Parliament. This response masks the fact that, parliamentary sovereignty notwithstanding, judges in the higher courts have considerable discretion as to whether or not they will intervene and develop the law in new and bold directions. As Lord Reid observed in Black-Clawson International Ltd v Papierwerke Waldhoff-Anschaffenburg AG [1975] AC 591 (at 613): We often say that we are looking for the intention of Parliament, but that is not quite accurate.We are seeking the meaning of the words which Parliament used.We are seeking not what Parliament meant but the true meaning of what they said. What principles of interpretation can be identified? In theory any ambiguity in a criminal statute should be construed in favour of the defendant, although this may have to give way to wider public policy interests if the restrictive interpretation allows a patently culpable defendant to escape liability. As Ashworth observed in ‘Interpreting criminal statutes: a crisis of legality?’ (1991) 107 LQR 419: It would not stretch the truth too far to suggest that the typical academic approach has been to emphasise liberal values and the traditional judicial approach to emphasise what they regard as social values . . . values of both kinds do and should form part of criminal law doctrine. The next step is to recognise that they will frequently conflict and that, whilst careful discussion of the principles and policies will give some indication as to how conflicts should be resolved, situations will occur in which the courts must make that choice. This makes it crucial that the policies and principles are openly discussed, rather than concealed behind high-sounding phrases about ‘legislative intent’,‘public policy’ or ‘the principle of legality’. 1.5 CLASSIFICATION OF OFFENCES For the purposes of the powers given to police officers and citizens to effect the arrest of suspects, the Police and Criminal Evidence Act 1984 distinguishes between those offences 7 CASES AND MATERIALS ON CRIMINAL LAW where a power to arrest is provided without an arrest warrant having been issued (arrestable offences – see s 24), and those offences that are ‘non-arrestable’, that is, where a warrant would normally be required. POLICE AND CRIMINAL EVIDENCE ACT 1984, s 24 (4) Any person may arrest without a warrant (a) anyone who is in the act of committing an arrestable offence (b) anyone whom he has reasonable grounds for suspecting to be committing such an offence. (5) Where an arrestable offence has been committed, any person may arrest without a warrant (a) anyone who is guilty of the offence (b) anyone whom he has reasonable grounds for suspecting to be guilty of it. (6) Where a constable has reasonable grounds for suspecting that an arrestable offence has been committed, he may arrest without a warrant anyone whom he has reasonable grounds for suspecting to be guilty of the offence. (7) A constable may arrest without a warrant (a) anyone who is about to commit an arrestable offence (b) anyone whom he has reasonable grounds for suspecting to be about to commit an arrestable offence. For these purposes an arrestable offence is one: • in relation to which the sentence is fixed by law (for example, murder); • in relation to which a person of 21 years of age or over (not previously convicted) may be sentenced to imprisonment for a term of five years (such as theft and robbery); • otherwise specifically cited as coming within the scope of the s 24 powers, for example sexual assault, going equipped for stealing, s 60(8)(b) of the Criminal Justice and Public Order Act 1994 – failing to comply with requirement to remove a mask, etc. Section 25 of the Police and Criminal Evidence Act 1984 goes on, however, to specify circumstances where a police officer can exercise a power of arrest in respect of a non-arrestable offence, notwithstanding the absence of a warrant. Under s 25 a police constable may arrest a suspect on suspicion of having committed a non-arrestable offence if satisfied that any of the general arrest conditions specified in that section are satisfied. These largely relate to circumstances that make the issuing of a summons to attend court impracticable, such as the suspect having no fixed abode, or failing to supply plausible personal details. Criminal offences in England and Wales can also be classified by reference to the procedure used at trial. According to this taxonomy there are three types of offence: • Indictable offences – such as rape, robbery and murder; • Summary offences – such as insulting behaviour and common assault; • Offences triable either way – such as theft, criminal damage (depending on the value of the property damaged), assault occasioning bodily harm contrary to s 47 of the Offences Against the Person Act 1861, and sexual assault. 8 INTRODUCTION TO CRIMINAL LAW: FRAMEWORK AND PROCEDURES Indictable offences are triable only in the Crown Court before a judge and jury. Summary offences are triable only in the magistrates’ court. Offences triable either way may be tried before either court, depending on the circumstances, in particular the seriousness of the offence and the preferences expressed by the prosecution and defendant; see further s 14 of the Criminal Law Act 1977, as re-enacted by ss 17–25 of the Magistrates’ Courts Act 1980. 1.6 THE DECISION TO PROSECUTE Since the enactment of the Prosecution of Offences Act 1985 the decision to institute criminal proceedings, and the decision as to the offence to be charged has rested with the Crown Prosecution Service (CPS). The criteria borne in mind by the CPS in determining whether or not to prosecute have been published in the form of the Code for Crown Prosecutors. The current version was published in 2004. 1 INTRODUCTION 1.1 The decision to prosecute an individual is a serious step. Fair and effective prosecution is essential to the maintenance of law and order. Even in a small case a prosecution has serious implications for all involved — victims, witnesses and defendants. The Crown Prosecution Service applies the Code for Crown Prosecutors so that it can make fair and consistent decisions about prosecutions. 1.2 The Code helps the Crown Prosecution Service to play its part in making sure that justice is done. It contains information that is important to police officers and others who work in the criminal justice system and to the general public. Police officers should apply the provisions of this Code whenever they are responsible for deciding whether to charge a person with an offence. 1.3 The Code is also designed to make sure that everyone knows the principles that the Crown Prosecution Service applies when carrying out its work. By applying the same principles, everyone involved in the system is helping to treat victims, witnesses and defendants fairly, while prosecuting cases effectively. 2 GENERAL PRINCIPLES 2.1 Each case is unique and must be considered on its own facts and merits. However, there are general principles that apply to the way in which Crown Prosecutors must approach every case. 2.2 Crown Prosecutors must be fair, independent and objective. They must not let any personal views about ethnic or national origin, disability, sex, religious beliefs, political views or the sexual orientation of the suspect, victim or witness influence their decisions. They must not be affected by improper or undue pressure from any source. 2.3 It is the duty of Crown Prosecutors to make sure that the right person is prosecuted for the right offence. In doing so, Crown Prosecutors must always act in the interests of justice and not solely for the purpose of obtaining a conviction. 9 CASES AND MATERIALS ON CRIMINAL LAW 2.4 Crown Prosecutors should provide guidance and advice to investigators throughout the investigative and prosecuting process. This may include lines of inquiry, evidential requirements and assistance in any pre-charge procedures. Crown Prosecutors will be proactive in identifying and, where possible, rectifying evidential deficiencies and in bringing to an early conclusion those cases that cannot be strengthened by further investigation. 2.5 It is the duty of Crown Prosecutors to review, advise on and prosecute cases, ensuring that the law is properly applied, that all relevant evidence is put before the court and that obligations of disclosure are complied with, in accordance with the principles set out in this Code. 2.6 The Crown Prosecution Service is a public authority for the purposes of the Human Rights Act 1998. Crown Prosecutors must apply the principles of the European Convention on Human Rights in accordance with the Act. 3 THE DECISION TO PROSECUTE 3.1 In most cases, Crown Prosecutors are responsible for deciding whether a person should be charged with a criminal offence, and if so, what that offence should be. Crown Prosecutors make these decisions in accordance with this Code and the Director’s Guidance on Charging. In those cases where the police determine the charge, which are usually more minor and routine cases, they apply the same provisions. 3.2 Crown Prosecutors make charging decisions in accordance with the Full Code Test (see section 5 below), other than in those limited circumstances where the Threshold Test applies (see section 6 below). 3.3 The Threshold Test applies where the case is one in which it is proposed to keep the suspect in custody after charge, but the evidence required to apply the Full Code Test is not yet available. 3.4 Where a Crown Prosecutor makes a charging decision in accordance with the Threshold Test, the case must be reviewed in accordance with the Full Code Test as soon as reasonably practicable, taking into account the progress of the investigation. 4 REVIEW 4.1 Each case the Crown Prosecution Service receives from the police is reviewed to make sure that it is right to proceed with a prosecution. Unless the Threshold Test applies, the Crown Prosecution Service will only start or continue with a prosecution when the case has passed both stages of the Full Code Test. 4.2 Review is a continuing process and Crown Prosecutors must take account of any change in circumstances. Wherever possible, they should talk to the police first if they are thinking about changing the charges or stopping the case. Crown Prosecutors should also tell the police if they believe that some additional evidence may strengthen the case. This gives the police the chance to provide more information that may affect the decision. 4.3 The Crown Prosecution Service and the police work closely together, but the final responsibility for the decision whether or not a charge or a case should go ahead rests with the Crown Prosecution Service. 5 THE FULL CODE TEST 5.1 The Full Code Test has two stages. The first stage is consideration of the evidence. If the case does not pass the evidential stage it must not go ahead no matter how important or serious it may 10 INTRODUCTION TO CRIMINAL LAW: FRAMEWORK AND PROCEDURES be. If the case does pass the evidential stage, Crown Prosecutors must proceed to the second stage and decide if a prosecution is needed in the public interest. The evidential and public interest stages are explained below. THE EVIDENTIAL STAGE 5.2 Crown Prosecutors must be satisfied that there is enough evidence to provide a ‘realistic prospect of conviction’ against each defendant on each charge. They must consider what the defence case may be, and how that is likely to affect the prosecution case. 5.3 A realistic prospect of conviction is an objective test. It means that a jury or bench of magistrates or judge hearing a case alone, properly directed in accordance with the law, is more likely than not to convict the defendant of the charge alleged. This is a separate test from the one that the criminal courts themselves must apply. A court should only convict if satisfied so that it is sure of a defendant’s guilt. 5.4 When deciding whether there is enough evidence to prosecute, Crown Prosecutors must consider whether the evidence can be used and is reliable. There will be many cases in which the evidence does not give any cause for concern. But there will also be cases in which the evidence may not be as strong as it first appears. Crown Prosecutors must ask themselves the following questions: Can the evidence be used in court? (a) Is it likely that the evidence will be excluded by the court? There are certain legal rules which might mean that evidence which seems relevant cannot be given at a trial. For example, is it likely that the evidence will be excluded because of the way in which it was gathered? If so, is there enough other evidence for a realistic prospect of conviction? Is the evidence reliable? (b) Is there evidence which might support or detract from the reliability of a confession? Is the reliability affected by factors such as the defendant’s age, intelligence or level of understanding? (c) What explanation has the defendant given? Is a court likely to find it credible in the light of the evidence as a whole? Does it support an innocent explanation? (d) If the identity of the defendant is likely to be questioned, is the evidence about this strong enough? (e) Is the witness’s background likely to weaken the prosecution case? For example, does the witness have any motive that may affect his or her attitude to the case, or a relevant previous conviction? (f) Are there concerns over the accuracy or credibility of a witness? Are these concerns based on evidence or simply information with nothing to support it? Is there further evidence which the police should be asked to seek out which may support or detract from the account of the witness? 5.5 Crown Prosecutors should not ignore evidence because they are not sure that it can be used or is reliable. But they should look closely at it when deciding if there is a realistic prospect of conviction. THE PUBLIC INTEREST STAGE 5.6 In 1951, Lord Shawcross, who was Attorney General, made the classic statement on public interest, which has been supported by Attorneys General ever since: ‘It has never been the rule in 11 CASES AND MATERIALS ON CRIMINAL LAW this country — I hope it never will be — that suspected criminal offences must automatically be the subject of prosecution.’ (House of Commons Debates, volume 483, column 681, 29 January 1951.) 5.7 The public interest must be considered in each case where there is enough evidence to provide a realistic prospect of conviction. Although there may be public interest factors against prosecution in a particular case, often the prosecution should go ahead and those factors should be put to the court for consideration when sentence is being passed. A prosecution will usually take place unless there are public interest factors tending against prosecution which clearly outweigh those tending in favour, or it appears more appropriate in all the circumstances of the case to divert the person from prosecution (see section 8 below). 5.8 Crown Prosecutors must balance factors for and against prosecution carefully and fairly. Public interest factors that can affect the decision to prosecute usually depend on the seriousness of the offence or the circumstances of the suspect. Some factors may increase the need to prosecute but others may suggest that another course of action would be better. The following lists of some common public interest factors, both for and against prosecution, are not exhaustive. The factors that apply will depend on the facts in each case. Some common public interest factors in favour of prosecution 5.9 The more serious the offence, the more likely it is that a prosecution will be needed in the public interest. A prosecution is likely to be needed if: (a) (b) (c) (d) (e) (f) (g) (h) (i) (j) (k) (l) (m) (n) (o) a conviction is likely to result in a significant sentence; a conviction is likely to result in a confiscation or any other order; a weapon was used or violence was threatened during the commission of the offence; the offence was committed against a person serving the public (for example, a police or prison officer, or a nurse); the defendant was in a position of authority or trust; the evidence shows that the defendant was a ringleader or an organiser of the offence; there is evidence that the offence was premeditated; there is evidence that the offence was carried out by a group; the victim of the offence was vulnerable, has been put in considerable fear, or suffered personal attack, damage or disturbance; the offence was committed in the presence of, or in close proximity to, a child; the offence was motivated by any form of discrimination against the victim’s ethnic or national origin, disability, sex, religious beliefs, political views or sexual orientation, or the suspect demonstrated hostility towards the victim based on any of those characteristics; there is a marked difference between the actual or mental ages of the defendant and the victim, or if there is any element of corruption; the defendant’s previous convictions or cautions are relevant to the present offence; the defendant is alleged to have committed the offence while under an order of the court; there are grounds for believing that the offence is likely to be continued or repeated, for example, by a history of recurring conduct; (p) the offence, although not serious in itself, is widespread in the area where it was committed; or (q) a prosecution would have a significant positive impact on maintaining community confidence. 12 INTRODUCTION TO CRIMINAL LAW: FRAMEWORK AND PROCEDURES Some common public interest factors against prosecution 5.10 A prosecution is less likely to be needed if: (a) the court is likely to impose a nominal penalty; (b) the defendant has already been made the subject of a sentence and any further conviction would be unlikely to result in the imposition of an additional sentence or order, unless the nature of the particular offence requires a prosecution or the defendant withdraws consent to have an offence taken into consideration during sentencing; (c) the offence was committed as a result of a genuine mistake or misunderstanding (these factors must be balanced against the seriousness of the offence); (d) the loss or harm can be described as minor and was the result of a single incident, particularly if it was caused by a misjudgement; (e) there has been a long delay between the offence taking place and the date of the trial, unless: the offence is serious; the delay has been caused in part by the defendant; the offence has only recently come to light; or the complexity of the offence has meant that there has been a long investigation; (f) a prosecution is likely to have a bad effect on the victim’s physical or mental health, always bearing in mind the seriousness of the offence; (g) the defendant is elderly or is, or was at the time of the offence, suffering from significant mental or physical ill health, unless the offence is serious or there is real possibility that it may be repeated. The Crown Prosecution Service, where necessary, applies Home Office guidelines about how to deal with mentally disordered offenders. Crown Prosecutors must balance the desirability of diverting a defendant who is suffering from significant mental or physical ill health with the need to safeguard the general public; (h) the defendant has put right the loss or harm that was caused (but defendants must not avoid prosecution or diversion solely because they pay compensation); or (i) details may be made public that could harm sources of information, international relations or national security. 5.11 Deciding on the public interest is not simply a matter of adding up the number of factors on each side. Crown Prosecutors must decide how important each factor is in the circumstances of each case and go on to make an overall assessment. The relationship between the victim and the public interest 5.12 The Crown Prosecution Service does not act for victims or the families of victims in the same way as solicitors act for their clients. Crown Prosecutors act on behalf of the public and not just in the interests of any particular individual. However, when considering the public interest, Crown Prosecutors should always take into account the consequences for the victim of whether or not to prosecute, and any views expressed by the victim or the victim’s family. 5.13 It is important that a victim is told about a decision which makes a significant difference to the case in which they are involved. Crown Prosecutors should ensure that they follow any agreed procedures. 6 THE THRESHOLD TEST 6.1 The Threshold Test requires Crown Prosecutors to decide whether there is at least a reasonable suspicion that the suspect has committed an offence, and if there is, whether it is in the public interest to charge that suspect. 13 CASES AND MATERIALS ON CRIMINAL LAW 6.2 The Threshold Test is applied to those cases in which it would not be appropriate to release a suspect on bail after charge, but the evidence to apply the Full Code Test is not yet available. 6.3 There are statutory limits that restrict the time a suspect may remain in police custody before a decision has to be made whether to charge or release the suspect. There will be cases where the suspect in custody presents a substantial bail risk if released, but much of the evidence may not be available at the time the charging decision has to be made. Crown Prosecutors will apply the Threshold Test to such cases for a limited period. 6.4 The evidential decision in each case will require consideration of a number of factors including: the evidence available at the time; the likelihood and nature of further evidence being obtained; the reasonableness for believing that evidence will become available; the time it will take to gather that evidence and the steps being taken to do so; the impact the expected evidence will have on the case; the charges that the evidence will support. 6.5 The public interest means the same as under the Full Code Test, but will be based on the information available at the time of charge which will often be limited. 6.6 A decision to charge and withhold bail must be kept under review. The evidence gathered must be regularly assessed to ensure the charge is still appropriate and that continued objection to bail is justified. The Full Code Test must be applied as soon as reasonably practicable. 7 SELECTION OF CHARGES 7.1 Crown Prosecutors should select charges which: (a) reflect the seriousness and extent of the offending; (b) give the court adequate powers to sentence and impose appropriate post-conviction orders; and (c) enable the case to be presented in a clear and simple way. This means that Crown Prosecutors may not always choose or continue with the most serious charge where there is a choice. 7.2 Crown Prosecutors should never go ahead with more charges than are necessary just to encourage a defendant to plead guilty to a few. In the same way, they should never go ahead with a more serious charge just to encourage a defendant to plead guilty to a less serious one. 7.3 Crown Prosecutors should not change the charge simply because of the decision made by the court or the defendant about where the case will be heard. 8 DIVERSION FROM PROSECUTION ADULTS 8.1 When deciding whether a case should be prosecuted in the courts, Crown Prosecutors should consider the alternatives to prosecution. Where appropriate, the availability of suitable rehabilitative, reparative or restorative justice processes can be considered. 8.2 Alternatives to prosecution for adult suspects include a simple caution and a conditional caution. 14 INTRODUCTION TO CRIMINAL LAW: FRAMEWORK AND PROCEDURES Simple caution 8.3 A simple caution should only be given if the public interest justifies it and in accordance with Home Office guidelines. Where it is felt that such a caution is appropriate, Crown Prosecutors must inform the police so they can caution the suspect. If the caution is not administered, because the suspect refuses to accept it, a Crown Prosecutor may review the case again. Conditional caution 8.4 A conditional caution may be appropriate where a Crown Prosecutor considers that while the public interest justifies a prosecution, the interests of the suspect, victim and community may be better served by the suspect complying with suitable conditions aimed at rehabilitation or reparation. These may include restorative processes. 8.5 Crown Prosecutors must be satisfied that there is sufficient evidence for a realistic prospect of conviction and that the public interest would justify a prosecution should the offer of a conditional caution be refused or the offender fail to comply with the agreed conditions of the caution. 8.6 In reaching their decision, Crown Prosecutors should follow the Conditional Cautions Code of Practice and any guidance on conditional cautioning issued or approved by the Director of Public Prosecutions. 8.7 Where Crown Prosecutors consider a conditional caution to be appropriate, they must inform the police, or other authority responsible for administering the conditional caution, as well as providing an indication of the appropriate conditions so that the conditional caution can be administered. YOUTHS 8.8 Crown Prosecutors must consider the interests of a youth when deciding whether it is in the public interest to prosecute. However Crown Prosecutors should not avoid prosecuting simply because of the defendant’s age. The seriousness of the offence or the youth’s past behaviour is very important. 8.9 Cases involving youths are usually only referred to the Crown Prosecution Service for prosecution if the youth has already received a reprimand and final warning, unless the offence is so serious that neither of these were appropriate or the youth does not admit committing the offence. Reprimands and final warnings are intended to prevent re-offending and the fact that a further offence has occurred indicates that attempts to divert the youth from the court system have not been effective. So the public interest will usually require a prosecution in such cases, unless there are clear public interest factors against prosecution. 9 MODE OF TRIAL 9.1 The Crown Prosecution Service applies the current guidelines for magistrates who have to decide whether cases should be tried in the Crown Court when the offence gives the option and the defendant does not indicate a guilty plea. Crown Prosecutors should recommend Crown Court trial when they are satisfied that the guidelines require them to do so. 9.2 Speed must never be the only reason for asking for a case to stay in the magistrates’ courts. But Crown Prosecutors should consider the effect of any likely delay if they send a case to the Crown Court, and any possible stress on victims and witnesses if the case is delayed. 10 ACCEPTING GUILTY PLEAS 10.1 Defendants may want to plead guilty to some, but not all, of the charges. Alternatively, they may want to plead guilty to a different, possibly less serious, charge because they are admitting 15 CASES AND MATERIALS ON CRIMINAL LAW only part of the crime. Crown Prosecutors should only accept the defendant’s plea if they think the court is able to pass a sentence that matches the seriousness of the offending, particularly where there are aggravating features. Crown Prosecutors must never accept a guilty plea just because it is convenient. 10.2 In considering whether the pleas offered are acceptable, Crown Prosecutors should ensure that the interests of the victim and, where possible, any views expressed by the victim or victim’s family, are taken into account when deciding whether it is in the public interest to accept the plea. However, the decision rests with the Crown Prosecutor. 10.3 It must be made clear to the court on what basis any plea is advanced and accepted. In cases where a defendant pleads guilty to the charges but on the basis of facts that are different from the prosecution case, and where this may significantly affect sentence, the court should be invited to hear evidence to determine what happened, and then sentence on that basis. 10.4 Where a defendant has previously indicated that he or she will ask the court to take an offence into consideration when sentencing, but then declines to admit that offence at court, Crown Prosecutors will consider whether a prosecution is required for that offence. Crown Prosecutors should explain to the defence advocate and the court that the prosecution of that offence may be subject to further review. 10.5 Particular care must be taken when considering pleas which would enable the defendant to avoid the imposition of a mandatory minimum sentence. When pleas are offered, Crown Prosecutors must bear in mind the fact that ancillary orders can be made with some offences but not with others. 1.7 ESTABLISHING CRIMINAL LIABILITY – THE BURDEN AND STANDARD OF PROOF In a criminal trial the defendant is presumed to be innocent and it is for the prosecution to prove guilt. This effectively means that the prosecution has to prove each element of the offence (actus reus and mens rea). Where the burden of proof rests upon the prosecution, the standard of proof is beyond all reasonable doubt. Normally a defendant bears only an evidential burden of proof. This means that he has to raise evidence that justifies a particular defence being left to the jury – for example, evidence that he was provoked will lead to a trial judge in a murder case directing the jury as to the availability of the defence of provocation. It will then be for the prosecution to prove beyond all reasonable doubt that the defendant was not provoked. In those exceptional cases where the defendant bears the legal burden of proof, the standard of proof is balance of probabilities. Woolmington v DPP [1935] AC 462 Lord Sankey LC: Throughout the web of the English criminal law one golden thread is always to be seen . . . that it is the duty of the prosecution to prove the prisoner’s guilt . . . If, at the end of and on the 16 INTRODUCTION TO CRIMINAL LAW: FRAMEWORK AND PROCEDURES whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the [elements of the offence have been made out] the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained. 1.7.1 REVERSING THE BURDEN OF PROOF A statutory provision that seeks to place a legal burden of proof on a defendant presents difficulties in light of the fact that Art 6(2) of the European Convention on Human Rights provides that everyone charged with a criminal offence shall be presumed to be innocent until proven guilty. To survive scrutiny under the terms of the Convention any legislative provision purporting to derogate from the presumption of innocence must be a justifiable, proportionate and legitimate measure. In practical terms this means that it must infringe upon the presumption of innocence no more than is strictly necessary, must be based on clear legal authority, and must be justified by a public interest that outweighs the potential unfairness to the individual defendant. If all of these criteria are satisfied the measure in question may be held to reverse the burden of proof (although the standard of proof will still be the balance of probabilities). If the court rules that the interference with the presumption of innocence is not justified, the measure can be ‘read down’ so as to operate on the level of placing an evidential burden on the defendant, as opposed to a legal burden. R v Lambert [2001] 3 All ER 577 Lambert appealed against his conviction for possession of cocaine contrary to the Misuse of Drugs Act 1971, contending that s 5(4) and s 28, which required a defendant charged with possession of a controlled drug to prove, on the balance of probabilities certain exculpatory facts, was incompatible with the presumption of innocence in Art 6(2) of the European Convention on Human Rights. The House of Lords held that to ensure compliance with Art 6(2) the provisions of the 1971 Act had to be read as imposing only an evidential burden on the defendant. Lord Steyn: . . . in a constitutional democracy limited inroads on presumption of innocence may be justified. The approach to be adopted was stated by the European Court of Human Rights in Salabiaku v France (1988) 13 EHRR 379, 388 (para 28) as follows: Presumptions of fact or of law operate in every legal system. Clearly the Convention does not prohibit such presumptions in principle. It does, however, require the Contracting States to remain within certain limits in this respect as regards criminal law. Article 6(2) does not therefore regard presumptions of fact or of law provided for in the criminal law 17 CASES AND MATERIALS ON CRIMINAL LAW with indifference. It requires States to confine them within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence. This test depends upon the circumstances of the individual case. It follows that a legislative interference with the presumption of innocence requires justification and must not be greater than is necessary. The principle of proportionality must be observed. Does section 5(3) read with section 28(2) and (3) make an inroad on article 6.2? Counsel for the appellant submitted that the defence put forward by the appellant under section 28 is an ingredient of the offence under section 5(3). His argument was that knowledge of the existence and control of the contents of the container is the gravamen of the offence for which the legislature prescribed a maximum sentence of life imprisonment.The contrary argument advanced on behalf of the Director of Public Prosecutions relied on the observation of Lord Woolf CJ in the Court of Appeal [2001] 2 WLR at 221F that ‘What the offence does is to make the defendant responsible for ensuring that he does not take into his possession containers which in fact contain drugs.’ Taking into account that section 28 deals directly with the situation where the accused is denying moral blameworthiness and the fact that the maximum prescribed penalty is life imprisonment, I conclude that the appellant’s interpretation is to be preferred. It follows that section 28 derogates from the presumption of innocence. I would, however, also reach this conclusion on broader grounds. The distinction between constituent elements of the crime and defensive issues will sometimes be unprincipled and arbitrary. After all, it is sometimes simply a matter of which drafting technique is adopted: a true constituent element can be removed from the definition of the crime and cast as a defensive issue whereas any definition of an offence can be reformulated so as to include all possible defences within it. It is necessary to concentrate not on technicalities and niceties of language but rather on matters of substance. I do not have in mind cases within the narrow exception ‘limited to offences arising under enactments which prohibit the doing of an act save in specified circumstances or by persons of specified classes or with specified qualifications or with the licence or permission of specified authorities’; R v Edwards [1975] QB 27; R v Hunt [1987] AC 352; section 101 of the Magistrates’ Courts Act 1980. There are other cases where the defence is so closely linked with mens rea and moral blameworthiness that it would derogate from the presumption to transfer the legal burden to the accused, e.g. the hypothetical case of transferring the burden of disproving provocation to an accused. In R v Whyte (1988) 51 DLR 4th 481 the Canadian Supreme Court rejected an argument that as a matter of principle a constitutional presumption of innocence only applies to elements of the offence and not excuses. Giving the judgment of the court Dickson CJC observed (at 493): The real concern is not whether the accused must disprove an element or prove an excuse, but that an accused may be convicted while a reasonable doubt exists. When that possibility exists, there is a breach of the presumption of innocence. The exact characterization of a factor as an essential element, a collateral factor, an excuse, or a defence should not affect the analysis of the presumption of innocence. It is the final effect of a provision on the verdict that is decisive. If an accused is required to prove some fact on the balance of probabilities to avoid conviction, the provision violates the presumption of innocence because it permits a conviction in spite of a reasonable doubt in the mind of the trier of fact as to the guilt of the accused. I would adopt this reasoning. In the present case the defence under section 28 is one directly bearing on the moral blameworthiness of the accused. It is this factor alone which could justify a maximum sentence of life imprisonment. In my view there is an inroad on the presumption even if an issue under section 28 is in strict law regarded as a pure defence. 18 INTRODUCTION TO CRIMINAL LAW: FRAMEWORK AND PROCEDURES It is now necessary to consider the question of justification for the legislative interference with the presumption of innocence. I am satisfied that there is an objective justification for some interference with the burden of proof in prosecutions under section 5 of the 1971 Act. The basis for this justification is that sophisticated drug smugglers, dealers and couriers typically secrete drugs in some container, thereby enabling the person in possession of the container to say that he was unaware of the contents. Such defences are commonplace and they pose real difficulties for the police and prosecuting authorities. That is, however, not the end of the matter.The burden is on the state to show that the legislative means adopted were not greater than necessary. Where there is objective justification for some inroad on the presumption of innocence the legislature has a choice. The first is to impose a legal burden of proof on the accused. If such a burden is created the matter in question must be taken as proved against the accused unless he satisfies the jury on a balance of probabilities to the contrary: The Eleventh Report of the CrLRC, para 138. The second is to impose an evidential burden only on the accused. If this technique is adopted the matter must be taken as proved against the accused unless there is sufficient evidence to raise an issue on the matter but, if there is sufficient evidence, then the prosecution have the burden of satisfying the jury as to the matter beyond reasonable doubt in the ordinary way: The Eleventh Report of the CrLRC, para 138. It is important to bear in mind that it is not enough for the defence merely to allege the fact in question: the court decides whether there is a real issue on the matter:The Eleventh Report of the CrLRC, para 138. A transfer of a legal burden amounts to a far more drastic interference with the presumption of innocence than the creation of an evidential burden of the accused. The former requires the accused to establish his innocence. It necessarily involves the risk that, if the jury are faithful to the judge’s direction, they may convict where the accused has not discharged the legal burden resting on him but left them unsure on the point.This risk is not present if only an evidential burden is created. The principle of proportionality requires the House to consider whether there was a pressing necessity to impose a legal rather than evidential burden on the accused.The effect of section 28 is that in a prosecution for possession of controlled drugs with intent to supply, although the prosecution must establish that prohibited drugs were in the possession of the defendant, and that he or she knew that the package contained something, the accused must prove on a balance of probabilities that he did not know that the package contained controlled drugs. If the jury is in doubt on this issue, they must convict him. This may occur when an accused adduces sufficient evidence to raise a doubt about his guilt but the jury is not convinced on a balance of probabilities that his account is true. Indeed it obliges the court to convict if the version of the accused is as likely to be true as not. This is a far reaching consequence: a guilty verdict may be returned in respect of an offence punishable by life imprisonment even though the jury may consider that it is reasonably possible that the accused had been duped. It would be unprincipled to brush aside such possibilities as unlikely to happen in practice. Moreover, as Justice has pointed out in its valuable intervention, there may be real difficulties in determining the real facts upon which the sentencer must act in such cases. In any event, the burden of showing that only a reverse legal burden can overcome the difficulties of the prosecution in drugs cases is a heavy one. A new realism in regard to the problems faced by the prosecution in drugs cases has significantly reduced their scope. First, the relevant facts are usually peculiarly within the knowledge of the possessor of the container and that possession presumptively suggests, in the absence of exculpatory evidence, that the person in possession of it in fact knew what was in the container. This is simply a species of circumstantial evidence. It will usually be a complete answer to a no case submission. It is also a factor which a judge may squarely place before the jury. After all, it is 19 CASES AND MATERIALS ON CRIMINAL LAW simple common sense that possession of a package containing drugs will generally as a matter of simple common sense demand a full and adequate explanation. Secondly, the statutory provisions enabling a judge to comment on an accused’s failure to mention facts when questioned or charged has strengthened the position of the prosecution: section 34 of the Criminal Justice Act 1994 . . . [Having reviewed a number of Commonwealth authorities, his Lordship continued:] The jurisprudence in Canada and South Africa reinforces the view that a reverse legal burden is a disproportionate means of addressing the legislative goal of easing the task of the prosecution in cases under section 5(3) of the Misuse of Drugs Act 1971. In these circumstances I am satisfied that the transfer of the legal burden in section 28 does not satisfy the criterion of proportionality. Viewed in its place in the current legal system section 28 of the 1971 Act is a disproportionate reaction to perceived difficulties facing the prosecution in drugs cases. It would be sufficient to impose an evidential burden on the accused. It follows that section 28 is incompatible with convention rights. [Lord Hope considered the obligations of the domestic courts under s 3(1) of the Human Rights Act 1998 to ensure, in so far at it was possible to do so, that the interpretation of domestic legislation was consistent with the demands of the European Convention on Human Rights, and continued:] Lord Hope: The haphazard way in which reverse burden of proof provisions have been introduced into legislation by Parliament has been identified and persuasively criticised: . . . The lack of clarity and the inconvenience of applying a different rule to defences created by statute is obvious in the present case. Section 28(4) of the 1971 Act provides that nothing in that section shall prejudice any defence which it is open to a person when charged with an offence to which that section applies to raise apart from that section. In this case the appellant did raise such a defence. It was his defence of duress.That defence was intimately bound up with his defence under the statute, as it depended entirely upon what the jury made of his evidence. But the trial judge had to direct the jury that the onus as regards the defence of duress rested on the prosecution. The jury were not told why there was a difference as to where the onus lay. There was no need for this information to be given to them. But it would not be surprising if they found it hard to maintain a clear distinction between the two positions as to onus when they examined the evidence. There is no doubt that it is possible, in the light of section 3(1) of the Human Rights Act 1998, to read sections 28(2) and 28(3) of the 1971 Act in such a way as to impose no more than an evidential burden on the accused. As it is a rule of construction, the exercise which section 3(1) prescribes makes it necessary to identify the words used by the legislature which would otherwise be incompatible with the Convention right and then to say how these words are to be construed according to the rule to make them compatible. But in this case there is no difficulty . . . [Lord Hope referred to Salabiaku v France, as had Lord Steyn in his speech, and continued:] Mr Owen [for the appellant] said that the court was not concerned in the Salabiaku case with a provision applicable to a person charged with a serious criminal offence which placed the burden 20 INTRODUCTION TO CRIMINAL LAW: FRAMEWORK AND PROCEDURES of proof on him with respect to an essential element of it.That is true, but I do not think that this deprives it of value as a statement of principle. What it means is that, as the article 6(2) right is not absolute and unqualified, the test to be applied is whether the modification or limitation of that right pursues a legitimate aim and whether it satisfies the principle of proportionality: Ashingdane v United Kingdom (1985) 7 EHRR 528; see also Brown v Stott [2001] 2 WLR 817. It is now well settled that the principle which is to be applied requires a balance to be struck between the general interest of the community and the protection of the fundamental rights of the individual. This will not be achieved if the reverse onus provision goes beyond what is necessary to accomplish the objective of the statute. The statutory objective is to penalise the unauthorised possession of dangerous or otherwise harmful drugs. But the statute recognises, among other things, that it would be wrong to penalise those who neither knew nor suspected nor had reason to suspect the existence of some fact alleged by the prosecution which it is necessary for the prosecution to prove if he is to be convicted of the offence charged (section 28(2)) or that the substance or product in question is a controlled drug (section 28(3)(b)(i)). That being so, it is hard to see why a person who is accused of the offence of possessing a controlled drug and who wishes to raise this defence should be deprived of the full benefit of the presumption of innocence. The systems of control and prosecution might well be in jeopardy if there were to be an initial onus on the prosecution to establish that the accused knew these things. The right to silence and the covert and unscrupulous nature of drug-related activities must be taken into account in the assessment as to whether a fair balance had been achieved. But we are not concerned here with the initial onus. As I have said in my answer to the first issue, the prosecution do not need to prove that the accused knew that the thing in his possession was a controlled drug.This is a matter which must be raised by the defence. The choice then is between a persuasive burden, which is what the ordinary meaning of the statutory language lays down, and an evidential burden, which is the meaning which it is possible to give to the statutory language under section 3(1) of the 1998 Act. If the evidential burden were to be so slight as to make no difference – if it were to be enough, for example, for the accused merely to mention the defence without adducing any evidence – important practical considerations would suggest that in the general interest of the community the burden would have to be a persuasive one. But an evidential burden is not to be thought of as a burden which is illusory. What the accused must do is put evidence before the court which, if believed, could be taken by a reasonable jury to support his defence. That is what Professor Glanville Williams envisaged when he was giving this meaning to the words ‘unless the contrary is proved’: ‘The Logic of “Exceptions” ’ [1988] CLJ 261, 265 . . . It is what the common law requires of a defendant who wishes to invoke one of the common law defences such as provocation or duress. The practical effect of reading section 28(2) and section 28(3) as imposing an evidential burden only on the accused and not a persuasive burden as they have been understood to impose hitherto is likely in almost every case that can be imagined to be minimal . . . The change in the nature of the burden is best understood by looking not at the accused and what he must do, but rather at the state of mind of the judge or jury when they are evaluating the evidence.That is why, in the interests of clarity and convenience as well as on grounds of principle, a fair balance will be struck by reading and giving effect to these subsections as imposing an evidential burden only on the accused. It is worth noting in this connection that Parliament itself has recently recognised the force of the argument that as a general rule statutory provisions which require the accused to prove something as a defence to the offence with which he has been charged should be read and given 21 CASES AND MATERIALS ON CRIMINAL LAW effect to as if they imposed only an evidential burden on him and not a probative one. The Terrorism Act 2000 contains several provisions which say that it shall be a defence for a person charged with an offence to prove something. For example, section 57(2) provides that it shall be a defence for him to prove that his possession of an article was not for a purpose connected with the commission, preparation or instigation of an act of terrorism. But section 118(2), which applies to a number of provisions in the Act including section 57(2) which say that it is a defence for a person to prove something, provides: ‘If the person adduces evidence which is sufficient to raise an issue with respect to the matter the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not.’ Section 53(3) of the Regulation of Investigatory Powers Act 2000 is to the same effect. It provides a defence to the offence of possession described in section 53(2). It places the onus of proving the contrary beyond a reasonable doubt on the prosecutor if sufficient evidence of that fact is adduced to raise an issue with respect to it. It is not unreasonable to think that, if Parliament were now to have an opportunity of reconsidering the words used in section 28(2) and (3) of the 1971 Act, it would be content to qualify them in precisely the same way. I would therefore read the words ‘to prove’ in section 28(2) as if the words used in the subsection were ‘to give sufficient evidence’, and I would give the same meaning to the words ‘if he proves’ in section 28(3). The effect which is to be given to this meaning is that the burden of proof remains on the prosecution throughout. If sufficient evidence is adduced to raise the issue, it will be for the prosecution to show beyond reasonable doubt that the defence is not made out by the evidence. Sheldrake v Director of Public Prosecutions [2003] 2 All ER 497 Sheldrake was charged with being in charge of a motor car in a public place whilst over the legal drink drive limit, contrary to s 5(1)(b) of the Road Traffic Act 1988. Section 5(2) of the 1988 Act, so far as material, provides that it is a defence for a person charged with an offence under subsection (1)(b) to prove that at the time he is alleged to have committed the offence the circumstances were such that there was no likelihood of his driving the vehicle whilst the proportion of alcohol in his breath, blood or urine remained likely to exceed the prescribed limit. The key issue before the House of Lords was whether s 5(2) was compliant with Art 6(2) of the European Convention on Human Rights to the extent that it placed a legal burden of proof on the defendant. Reversing the decision of the Divisional Court the House of Lords held that s 5(2) was consistent with Art 6(2) even though it did impose a legal burden of proof. Lord Bingham: [1] Sections 5(2) of the Road Traffic Act 1988 and 11(2) of the Terrorism Act 2000, conventionally interpreted, impose a legal or persuasive burden on a defendant in criminal proceedings to prove the matters respectively specified in those subsections if he is to be exonerated from liability on the grounds there provided. That means that he must, to be exonerated, establish those matters on the balance of probabilities. If he fails to discharge that burden he will be convicted. In this appeal by the Director of Public Prosecutions and this reference by the Attorney General these reverse burdens (‘reverse’ because the burden is placed on the defendant and not, as ordinarily in 22 INTRODUCTION TO CRIMINAL LAW: FRAMEWORK AND PROCEDURES criminal proceedings, on the prosecutor) are challenged as incompatible with the presumption of innocence guaranteed by Art 6(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd 8969). Thus the first question for consideration in each case is whether the provision in question does, unjustifiably, infringe the presumption of innocence. If it does the further question arises whether the provision can and should be read down in accordance with the courts’ interpretative obligation under s 3 of the Human Rights Act 1998 so as to impose an evidential and not a legal burden on the defendant. An evidential burden is not a burden of proof. It is a burden of raising, on the evidence in the case, an issue as to the matter in question fit for consideration by the tribunal of fact. If an issue is properly raised, it is for the prosecutor to prove, beyond reasonable doubt, that that ground of exoneration does not avail the defendant. [His Lordship referred to the relevant Strasbourg case law and continued]: [21] From this body of authority certain principles may be derived. The overriding concern is that a trial should be fair, and the presumption of innocence is a fundamental right directed to that end. The Convention does not outlaw presumptions of fact or law but requires that these should be kept within reasonable limits and should not be arbitrary. It is open to states to define the constituent elements of a criminal offence, excluding the requirement of mens rea. But the substance and effect of any presumption adverse to a defendant must be examined, and must be reasonable. Relevant to any judgment on reasonableness or proportionality will be the opportunity given to the defendant to rebut the presumption, maintenance of the rights of the defence, flexibility in application of the presumption, retention by the court of a power to assess the evidence, the importance of what is at stake and the difficulty which a prosecutor may face in the absence of a presumption. Security concerns do not absolve member states from their duty to observe basic standards of fairness. The justifiability of any infringement of the presumption of innocence cannot be resolved by any rule of thumb, but on examination of all the facts and circumstances of the particular provision as applied in the particular case. [His Lordship then proceeded to explain why it was in the public interest that s 5(2) should be read as imposing a legal burden of proof on the defendant]: [40] . . . There is an obvious risk that a person may cause death, injury or damage if he drives or attempts to drive a car when excessive consumption of alcohol has made him unfit . . . That is why such conduct has been made a criminal offence. There is also an obvious risk that if a person is in control of a car when unfit he may drive it, with the consequent risk of causing death, injury or damage already noted. That is why it has been made a criminal offence to be in charge of a car in that condition . . . But the ingredients of the offence make no reference to doing a preparatory act towards driving or forming an intention to drive. The 1872 and 1930 Acts criminalised the conduct of those who were in charge of carriages and cars respectively when drunk or unfit, but made no reference to the likelihood of driving. There could, as I understood counsel to accept, be no ground of complaint if the offence of being unfit when in charge of a motor vehicle, as laid down in 1930, had remained unaltered. As has been shown, Parliament has modified that provision in favour of the defendant. If he can show that there was no likelihood of his driving while unfit, he is deemed not to have been in charge for purposes of s 4 of the 1988 Act and has a defence under s 5(2). There appears to be no very good reason (other than history) for the adoption of these different legislative techniques, but the outcome is effectively the same. The defendant 23 CASES AND MATERIALS ON CRIMINAL LAW can exonerate himself if he can show that the risk which led to the creation of the offence did not in his case exist. If he fails to establish this ground of exoneration, a possibility (but not a probability) would remain that he would not have been likely to drive. But he would fall squarely within the class of those whose conduct Parliament has, since 1930, legislated to criminalise. In DPP v Watkins [1989] QB 821 it was recognised, in my view rightly, that the offence does not require proof that a defendant is likely to drive: see pp 829D, 832E, 833A. This is not in my view an oppressive outcome, since a person in charge of a car when unfit to drive it may properly be expected to divest himself of the power to do so (as by giving the keys to someone else) or put it out of his power to do so (as by going well away). It may be, as was submitted in argument and suggested by Taylor LJ in DPP v Watkins at p 830, that the words ‘in charge’ have been too broadly interpreted and applied, but that is not a question which falls for decision in this appeal. [41] It may not be very profitable to debate whether s 5(2) infringes the presumption of innocence. It may be assumed that it does. Plainly the provision is directed to a legitimate object: the prevention of death, injury and damage caused by unfit drivers. Does the provision meet the tests of acceptability identified in the Strasbourg jurisprudence? In my view, it plainly does. I do not regard the burden placed on the defendant as beyond reasonable limits or in any way arbitrary. It is not objectionable to criminalise a defendant’s conduct in these circumstances without requiring a prosecutor to prove criminal intent. The defendant has a full opportunity to show that there was no likelihood of his driving, a matter so closely conditioned by his own knowledge and state of mind at the material time as to make it much more appropriate for him to prove on the balance of probabilities that he would not have been likely to drive than for the prosecutor to prove, beyond reasonable doubt, that he would. I do not think that imposition of a legal burden went beyond what was necessary. If a driver tries and fails to establish a defence under s 5(2), I would not regard the resulting conviction as unfair, as the House held that it might or would be in R v Lambert. I find no reason to conclude that the conviction of Mr Sheldrake was tainted by any hint of unfairness. 1.7.2 CODIFICATION AND LAW REFORM PROPOSALS – THE BURDEN AND STANDARD OF PROOF Clause 13 of the Draft Criminal Code Bill (Law Com 177 Vol I – see 1.8 below for an overview of the Law Commission’s criminal law reform project) sought to codify the law relating to burden and standard of proof in criminal trials thus: 13(1) Unless otherwise provided – (a) the burden of proving every element of an offence and any other fact alleged or relied on by the prosecution is on the prosecution; (b) where evidence is given (whether by the defendant or by the prosecution) of a defence or any other fact alleged or relied on by the defendant the burden is on the prosecution to prove that an element of the defence or such other fact did not exist. (2) Evidence is given of a defence or any other fact alleged or relied on by the defendant when there is such evidence as might lead a court or jury to conclude that there is a reasonable possibility that the elements of the defence or such other fact existed. 24 INTRODUCTION TO CRIMINAL LAW: FRAMEWORK AND PROCEDURES (3) The burden is on the defendant to prove any fact necessary to establish – (a) any plea made by him in bar to an indictment or any corresponding plea on summary trial; (b) the competence of any witness called by him; or (c) the admissibility of any evidence tendered by him. (4) Unless otherwise provided – (a) where the burden of proof is on the prosecution the standard of proof required is proof beyond reasonable doubt; (b) where the burden of proof is on the defendant the standard of proof required is proof on the balance of probabilities, except where subsection (5) applies. (5) Where an element of a defence is the fact that another person is guilty and liable to conviction of the offence in the same proceedings, the standard required for proof of that element is proof beyond reasonable doubt. The commentary on these clauses observed (Law Com 177 Vol II): 6.1 Burden of proof: the general rule. Subsection (1) states the general rule in Woolmington v DPP . . . When the evidential burden is satisfied, the burden is on the prosecution to disprove the fact in question. The nature of the evidential burden is described in subsection (2). Unless such evidence is already before the court, the defendant must adduce evidence which might lead a court or jury to conclude that there is a reasonable possibility that the fact alleged existed. 6.2 Exceptions to the general rule. The general rule applies ‘unless otherwise provided’, whether expressly or by necessary implication, and subject to subsections (3) and (6). Subsection (3) provides for three cases where, under the present law, the burden of proof is, or probably is and, in our opinion, ought to be, on the defendant: to establish any fact necessary to prove (a) a plea in bar, (b) the competence of a witness called by him, (c) the admissibility of evidence tendered by him.The House of Lords in Hunt . . . has confirmed that section 101 of the Magistrates’ Courts Act 1980 imposes the burden of proving certain defences on the defendant at a summary trial and that there is a corresponding common law rule of interpretation which achieves the same effect at a trial on indictment. Subsection (6) preserves these rules. 6.3 Standard of proof: Subsection (4) states the general rule for standard of proof – for the prosecution, proof beyond reasonable doubt and, for the defendant, proof on the balance of probabilities. The general rule applies ‘unless otherwise provided’, whether expressly or by necessary implication, and subject to subsection (5). This is concerned with the rare case of a special defence of the kind found in the Food Act 1984, section 100. An element of the defence is that a third person is guilty and liable to conviction in the same proceedings. The third person ought not to be convicted of the offence unless his guilt is proved beyond reasonable doubt and it is therefore necessary that that should be the standard of proof for this element of the defence. 1.8 CRIMINAL APPEALS A defendant convicted before a magistrates’ court may appeal to the Crown Court – a procedure that normally involves a complete rehearing of the case. Whatever the outcome of such proceedings, it does not normally have any value in terms of precedent, thus does not contribute to the development of the substantive criminal law. Alternatively a defendant 25 CASES AND MATERIALS ON CRIMINAL LAW convicted in the magistrates’ court can appeal to the Divisional Court on a point of law – known as proceeding by way of case stated. This would be appropriate, for example, where the facts are not in dispute. This avenue of appeal is also available to the prosecution if a magistrates’ court dismisses the case against a defendant. Rulings of the Divisional Court do create precedents binding on trial courts. Where a defendant has exercised his right to appeal from the magistrates’ court to the Crown Court, he still has the option of proceeding by way of case stated in relation to a point of law, before the Divisional Court. Appeal from the Divisional Court in case stated proceedings lies directly to the House of Lords. 1.8.1 THE DEFENDANT’S OPTIONS – APPEALING AGAINST CONVICTION (FOLLOWING TRIAL ON INDICTMENT) FROM THE CROWN COURT TO THE COURT OF APPEAL Most of the important appeal cases that give rise to developments in substantive criminal law arise where a defendant who has been convicted in the Crown Court, following trial on indictment, appeals against that conviction (as opposed to appealing against the sentence) to the Court of Appeal (Criminal Division). The statutes that govern this process are the Criminal Appeal Act 1968, and the Criminal Appeal Act 1995. Under the 1968 Act, an accused can appeal as of right against conviction if the trial judge grants a certificate to the effect that the case is fit for appeal. In all other cases the accused will have to obtain leave to appeal from the Court of Appeal. Applications for leave are normally determined by a single judge of the Court of Appeal on the basis of written submissions. Appeal against a refusal of leave will be considered by a full court sitting of the Court of Appeal. Essentially leave should be granted if the appeal indicates that the accused has an arguable case. Section 2(1) of the 1968 Act, as amended by the 1995 Act, provides that the Court of Appeal ‘shall allow an appeal against conviction if they think that the conviction is unsafe . . . and shall dismiss such an appeal in any other case’. The use of the criterion ‘unsafe’ replaces the more detailed approach under the 1968 Act as originally enacted, although it is doubtful that Parliament intended to change the scope of the grounds for allowing an appeal. To this end it is instructive to note that, prior to the 1995 Act, an appeal could be allowed because of a wrong ruling on the law, material irregularity, or because (taking into account all the circumstances) the conviction was unsafe or unsatisfactory. The extent to which a conviction can be regarded as ‘safe’, notwithstanding unfairness in the trial process, has had to be reconsidered following the enactment of the Human Rights Act 1998, and the decision of the European Court of Human Rights in R v Condron [2000] Crim LR 679. The result is that the Court of Appeal should not disengage the issue of the fairness of the trial from the issue of whether or not the conviction is safe. In essence significant violations of the right to a fair trial provided by Art 6 of the European Convention on Human Rights are, of themselves, likely to render a conviction unsafe; see further R v Francom (2000) The Times, 24 October. In R v Togher and Others (2000) The Times, 21 November, Lord Woolf CJ went so far as to observe that the approach of the Court of Appeal should be in step with that of the European Court of Human Rights, with the result that the denial of a fair trial contrary to Art 6 would 26 INTRODUCTION TO CRIMINAL LAW: FRAMEWORK AND PROCEDURES now inevitably lead to a finding that the resulting conviction was unsafe. Such a conclusion is a direct result of the obligation created by s 3(1) of the Human Rights Act 1998 to the effect that domestic legislation, such as the Criminal Appeal Act 1995, should be read, so far as possible, in a manner that gives effect to Convention rights. R v Davis (2000) The Times, 25 July, whilst not departing from this broad proposition, emphasises that it may still be necessary to look at the circumstances of a particular case before concluding that a violation of Art 6 has rendered a conviction unsafe – it will be a matter of fact and degree. Even if an appeal against conviction succeeds, the accused may still face a retrial. The Court of Appeal has the discretion to order a retrial under s 7 of the 1968 Act if it appears to the court that the interests of justice so require. If there has been a total mistrial the Court of Appeal can issue a writ of venire de novo – setting events back to where they were before the irregularity occurred that rendered the trial a mistrial. Some appeals against conviction will be partially successful in that the Court of Appeal can allow the appeal but substitute a conviction for a lesser-included offence – an obvious example being the quashing of a murder conviction and the substitution of a conviction for manslaughter. 1.8.2 THE DEFENDANT’S OPTIONS – CRIMINAL CASES REVIEW COMMISSION Prior to the enactment of the Criminal Appeal Act 1995 the Home Secretary had the power to refer cases to the Court of Appeal if there was evidence to suggest that a miscarriage of justice had occurred. The significance of this discretion lay in the fact that it could be exercised notwithstanding that the time limits for lodging an appeal to the court had expired long ago. Following criticisms of the involvement of politicians in this aspect of the criminal justice process, the 1995 Act withdrew the Home Secretary’s powers of referral and instead vested them in an independent body, the Criminal Cases Review Commission. Under s 5 of the 1995 Act (amending s 23 of the Criminal Appeal Act 1968) the Court of Appeal can ask the Criminal Cases Review Commission to investigate a particular case on its behalf: CRIMINAL APPEAL ACT 1995 5(1) After section 23 of the 1968 Act insert – Power to order investigations. 23A(1) On an appeal against conviction the Court of Appeal may direct the Criminal Cases Review Commission to investigate and report to the Court on any matter if it appears to the Court that – (a) the matter is relevant to the determination of the case and ought, if possible, to be resolved before the case is determined; (b) an investigation of the matter by the Commission is likely to result in the Court being able to resolve it; and (c) the matter cannot be resolved by the Court without an investigation by the Commission. (4) Where the Commission have reported to the Court of Appeal on any matter which they have been directed under subsection (1) above to investigate, the Court – (a) shall notify the appellant and the respondent that the Commission have reported; and 27 CASES AND MATERIALS ON CRIMINAL LAW (b) may make available to the appellant and the respondent the report of the Commission and any statements, opinions and reports which accompanied it. The powers of the Commission to refer possible miscarriages of justice to the Court of Appeal of their own volition (as regards criminal proceedings in England and Wales) are provided by ss 9 (referral following trial on indictment), 11 (referral following summary trial), 13 (basis for making a referral) and 14 (further issues relating to referral) of the 1995 Act. CRIMINAL APPEAL ACT 1995 9(1) Where a person has been convicted of an offence on indictment in England and Wales, the Commission – (a) may at any time refer the conviction to the Court of Appeal, and (b) (whether or not they refer the conviction) may at any time refer to the Court of Appeal any sentence (not being a sentence fixed by law) imposed on, or in subsequent proceedings relating to, the conviction. (2) A reference under subsection (1) of a person’s conviction shall be treated for all purposes as an appeal by the person under section 1 of the 1968 Act against the conviction. (3) A reference under subsection (1) of a sentence imposed on, or in subsequent proceedings relating to, a person’s conviction on an indictment shall be treated for all purposes as an appeal by the person under section 9 of the 1968 Act against – (a) the sentence, and (b) any other sentence (not being a sentence fixed by law) imposed on, or in subsequent proceedings relating to, the conviction or any other conviction on the indictment. (4) On a reference under subsection (1) of a person’s conviction on an indictment the Commission may give notice to the Court of Appeal that any other conviction on the indictment which is specified in the notice is to be treated as referred to the Court of Appeal under subsection (1). (5) Where a verdict of not guilty by reason of insanity has been returned in England and Wales in the case of a person, the Commission may at any time refer the verdict to the Court of Appeal; and a reference under this subsection shall be treated for all purposes as an appeal by the person under section 12 of the 1968 Act against the verdict. (6) Where a jury in England and Wales has returned findings that a person is under a disability and that he did the act or made the omission charged against him, the Commission may at any time refer either or both of those findings to the Court of Appeal; and a reference under this subsection shall be treated for all purposes as an appeal by the person under section 15 of the 1968 Act against the finding or findings referred. ... 11(1) Where a person has been convicted of an offence by a magistrates’ court in England and Wales, the Commission – (a) may at any time refer the conviction to the Crown Court, and (b) (whether or not they refer the conviction) may at any time refer to the Crown Court any sentence imposed on, or in subsequent proceedings relating to, the conviction. (2) A reference under subsection (1) of a person’s conviction shall be treated for all purposes as an appeal by the person under section 108(1) of the [1980 c 43] Magistrates’ Courts Act 1980 against the conviction (whether or not he pleaded guilty). (3) A reference under subsection (1) of a sentence imposed on, or in subsequent proceedings 28 INTRODUCTION TO CRIMINAL LAW: FRAMEWORK AND PROCEDURES (4) (5) (6) (7) relating to, a person’s conviction shall be treated for all purposes as an appeal by the person under section 108(1) of the Magistrates’ Courts Act 1980 against – (a) the sentence, and (b) any other sentence imposed on, or in subsequent proceedings relating to, the conviction or any related conviction. On a reference under subsection (1) of a person’s conviction the Commission may give notice to the Crown Court that any related conviction which is specified in the notice is to be treated as referred to the Crown Court under subsection (1). For the purposes of this section convictions are related if they are convictions of the same person by the same court on the same day. On a reference under this section the Crown Court may not award any punishment more severe than that awarded by the court whose decision is referred. The Crown Court may grant bail to a person whose conviction or sentence has been referred under this section; and any time during which he is released on bail shall not count as part of any term of imprisonment or detention under his sentence. ... 13(1) A reference of a conviction, verdict, finding or sentence shall not be made under [ss 9 or 11] unless – (a) the Commission consider that there is a real possibility that the conviction, verdict, finding or sentence would not be upheld were the reference to be made, (b) the Commission so consider – (i) in the case of a conviction, verdict or finding, because of an argument, or evidence, not raised in the proceedings which led to it or on any appeal or application for leave to appeal against it, or (ii) in the case of a sentence, because of an argument on a point of law, or information, not so raised, and (c) an appeal against the conviction, verdict, finding or sentence has been determined or leave to appeal against it has been refused. (2) Nothing in subsection (1)(b)(i) or (c) shall prevent the making of a reference if it appears to the Commission that there are exceptional circumstances which justify making it. 14(1) A reference of a conviction, verdict, finding or sentence may be made under [ss 9 or 11] either after an application has been made by or on behalf of the person to whom it relates or without an application having been so made. (2) In considering whether to make a reference of a conviction, verdict, finding or sentence under [ss 9 or 11] the Commission shall have regard to – (a) any application or representations made to the Commission by or on behalf of the person to whom it relates, (b) any other representations made to the Commission in relation to it, and (c) any other matters which appear to the Commission to be relevant. (3) In considering whether to make a reference under [ss 9] the Commission may at any time refer any point on which they desire the assistance of the Court of Appeal to that Court for the Court’s opinion on it; and on a reference under this subsection the Court of Appeal shall consider the point referred and furnish the Commission with the Court’s opinion on the point. (4) Where the Commission make a reference under [ss 9 or 11] the Commission shall – (a) give to the court to which the reference is made a statement of the Commission’s reasons for making the reference, and 29 CASES AND MATERIALS ON CRIMINAL LAW (b) send a copy of the statement to every person who appears to the Commission to be likely to be a party to any proceedings on the appeal arising from the reference. (5) Where a reference under [ss 9 or 11] is treated as an appeal against any conviction, verdict, finding or sentence, the appeal may be on any ground relating to the conviction, verdict, finding or sentence (whether or not the ground is related to any reason given by the Commission for making the reference). (6) In every case in which – (a) an application has been made to the Commission by or on behalf of any person for the reference under [ss 9 or 11] of any conviction, verdict, finding or sentence, but (b) the Commission decide not to make a reference of the conviction, verdict, finding or sentence, the Commission shall give a statement of the reasons for their decision to the person who made the application. It may be the case that the Commission refer a case to the Court of Appeal many years after the initial conviction. In the intervening years there may have been changes in statute, common law and decisions made by the European Court of Human Rights relating to the criminal process. The way in which such factors should be dealt with by the Court of Appeal was considered in R v Bentley [1999] Crim LR 330, and R v Kansal (2001) The Times, June 11. Any changes in statute law between the date of the conviction and the referral, unless expressly declared to be retrospective, will be ignored. Changes in the common law, however, will be taken into account on the basis that the common law as currently stated is assumed to reflect what the law was at the time of the conviction – this may involve changes that now render a conviction unsafe. Potentially the same is true of the effect of rulings by the European Court of Human Rights. In R v Kansal the Court of Appeal noted that, once a case is referred to it by the Commission, it has no discretion but to hear the appeal. This, coupled with the fact that there is no time limit applicable to the convictions that can be referred by the Commission (i.e. it could refer any past conviction that meets the criteria for referral), suggests a potentially huge case load for the Court of Appeal unless the Commission clarify their policy on referral. 1.8.3 PROSECUTION APPEAL OPTIONS – APPEAL AGAINST A TRIAL JUDGE’S RULING Whilst the prosecution cannot appeal against a jury’s ‘not guilty’ verdict, under part 9 of the Criminal Justice Act 2003, a right of appeal does lie in respect of some rulings, made in the course of a trial, that effectively make it impossible for the prosecution case to continue. The 2003 Act, in essence, provides for an interlocutory prosecution right of appeal where there is a trial on indictment and the trial judge makes a decision that has the effect of terminating the trial (other than a decision to discharge a jury), either at a pre-trial hearing or during the trial itself. There is also a right of appeal against rulings that are so fatal to the prosecution case that the prosecution proposes to treat them as terminating. Leave to appeal must be obtained either from the judge or the Court of Appeal. The ruling against which the prosecution appeals will not take effect whilst the appeal process is in train. If the Court of Appeal subsequently confirms a terminating (or effectively terminating) ruling it must order the 30 INTRODUCTION TO CRIMINAL LAW: FRAMEWORK AND PROCEDURES acquittal of the defendant. Where the prosecution appeal succeeds, the Court of Appeal may require the restoration of the Crown Court proceedings (or a fresh trial) only where this is necessary in the interests of justice. 1.8.4 PROSECUTION APPEAL OPTIONS – APPEAL ON A POINT OF LAW If the acquittal appears to have arisen because of a misapplication of the law by the trial judge, or because of an apparent loophole in the law, the Crown can test the matter further by proceeding under s 36(1) of the Criminal Justice Act 1972. This provision allows the Attorney General to refer the relevant point of law to the Court of Appeal for a ruling. Although the outcome of the proceedings cannot affect the liability of the acquitted defendant, it does have the same status, in terms of precedent, as any other Court of Appeal decision. The nature and purpose of such a reference was considered by the House of Lords in the following case: Attorney General’s Ref (No 3 of 1994) [1997] 3 All ER 936 Lord Mustill: The courts have always firmly resisted attempts to obtain the answer to academic questions, however useful this might appear to be. Normally, where an appeal is brought in the context of an issue between parties, the identification of questions which the court should answer can be performed by considering whether a particular answer to the question of law might affect the outcome of the dispute.The peculiarity of a reference under the Act of 1972 is that it is not a step in a dispute, so that in one sense the questions referred are invariably academic. This peculiarity might, unless limits are observed, enable the Attorney General, for the best of motives, to use an acquittal on a point of law to set in train a judicial roving commission on a particular branch of the law, with the aim of providing clear, practical and systematic solutions for problems of current interest.This is not the function of the court . . . The option of appealing against a ruling of the Court of Appeal (Criminal Division) is open to both the prosecution and the defence. The procedure is governed by ss 33 and 34 of the Criminal Appeal Act 1968, which provide as follows: 33(1) An appeal lies to the House of Lords, at the instance of the defendant or the prosecutor, from any decision of the Court of Appeal on an appeal to that court under part I of this Act or section 9 (preparatory hearings) of the Criminal Justice Act 1987. (2) The appeal lies only with the leave of the Court of Appeal or the House of Lords and leave shall not be granted unless it is certified by the Court of Appeal that a point of law of general public importance is involved in the decision and it appears to the Court of Appeal or the House of Lords (as the case may be) that the point is one which ought to be considered by that House. ... 34(1) An application to the Court of Appeal for leave to appeal to the House of Lords shall be made within the period of 14 days beginning with the date of the decision of the court and an application to the House of Lords for leave shall be made within the period of 14 days beginning with the date on which the application for leave is refused by the Court of Appeal. 31 CASES AND MATERIALS ON CRIMINAL LAW 1.8.5 PROSECUTION APPEAL OPTIONS – APPEAL BY THE PROSECUTION AGAINST OVER-LENIENT SENTENCES By virtue of ss 35 and 36 of the Criminal Justice Act 1988 the prosecution may, following the conviction of the defendant in the Crown Court, appeal to the Court of Appeal (Criminal Division) in respect of the sentence passed, if it is of the view that the sentence is unduly lenient. Section 36 of the Criminal Justice Act 1988 provides: (1) If it appears to the Attorney General (a) that the sentencing of a person in a proceeding in the Crown Court has been unduly lenient and (b) that the case is one to which this part of this Act applies, he may, with the leave of the Court of Appeal, refer the case to them for them to review the sentencing of that person and on such a reference the Court of Appeal may (i) quash any sentence passed on him in the proceeding and (ii) in place of it pass such sentence as they think appropriate for the case and as the court below had power to pass when dealing with him. ... (6) A reference under subsection (5) above shall be made only with the leave of the Court of Appeal or the House of Lords and leave shall not be granted unless it is certified by the Court of Appeal that the point of law is of general public importance and it appears to the Court of Appeal or the House of Lords (as the case may be) that the point is one which ought to be considered by that House. 1.8.6 PROSECUTION APPEAL OPTIONS – APPLICATION TO HAVE AN ACQUITTAL QUASHED Prior to the enactment of Part 10 of the Criminal Justice Act 2003, where a defendant was acquitted following trial on indictment, the autre fois acquit rule (the rule against double jeopardy) prevented the defendant being tried again for the same offence. In exceptional cases it is now possible for the prosecution to apply to the Court of Appeal for an acquittal to be quashed. This procedure requires the consent of the Director of Public Prosecutions (DPP) and only applies to a small number of serious offences such as murder, manslaughter and rape. Two criteria have to be satisfied before the Court of Appeal can order the quashing of the acquittal. First, the evidence must be new and compelling. The evidence is compelling if it is reliable, it is substantial, and in the context of the outstanding issues (ie the issues in dispute in the proceedings in which the person was acquitted), and it appears highly probative of the case against the acquitted person. Secondly, the quashing of the acquittal must be in the interests of justice. In determining whether or not this second criterion is met the court will have regard to: (a) whether existing circumstances make a fair trial unlikely (including the length of time since the offence was allegedly committed) and (b) whether the failure to adduce the evidence in earlier proceedings against the acquitted person was due to a failure by the prosecution to act with due diligence or expedition. If an acquittal is quashed the court may order a retrial as appropriate. These changes will enable the prosecution to 32 INTRODUCTION TO CRIMINAL LAW: FRAMEWORK AND PROCEDURES make use of advances in technology, particularly those related to DNA evidence, whereby their examination of evidence reveals links with acquitted defendants. R v Dunlop [2006] EWCA 1354 D was charged with murder in 1989 but acquitted following his trial. D subsequently confessed to the killing and was successfully prosecuted for perjury committed during the 1989 trial. Following the enactment of the Criminal Justice Act 2003, D was re-indicted in respect of the 1989 murder and pleaded guilty. He appealed against his conviction on a number of grounds: delay, the impossibility of his receiving a fair trial because of all the publicity surrounding his case; and the fact that it was unfair to re-indict him given that he had confessed to the murder at a time when there had been no legislative provision enabling the prosecution to proceed with a second trial for murder. The Court of Appeal dismissed the appeal, observing that issues such as delay and jury management to ensure a fair trial were routinely dealt with in other criminal trials. As to the fairness issue Phillips LCJ observed: In reliance on the belief that he was immune from retrial, D has provided new evidence which is not merely compelling, but overwhelming. There has been no suggestion that he is in a position to attempt to rebut this evidence. In these circumstances we suggested to Mr Owen [counsel for D] that the issue was not so much whether it was fair that he should be exposed to the jeopardy of another trial, but whether it was fair, having particular regard to the fact that he had set out to ‘put the record straight’ and pay the considerable penalty for perjury, that he should be exposed to further punishment for murder, the punishment in question being a mandatory life sentence. Mr Owen did not demur from this proposition. In considering the case for an exception to the double jeopardy rule, the Law Commission commented as follows: There is, further, the spectre of public disquiet, even revulsion, when someone is acquitted of the most serious of crimes and new material (such as that person’s own admission) points strongly or conclusively to guilt. Such cases may undermine public confidence in the criminal justice system as much as manifestly wrongful convictions. The erosion of that confidence, caused by the demonstrable failure of the system to deliver accurate outcomes in very serious cases, is at least as important as the failure itself. Those words might have been written of the present case. We are dealing here with the crime of murder. The Law Commission identified the unique features of this crime as providing a unique justification for an exception to the double jeopardy rule. Parliament has extended the exception further than the crime of murder, but that does not detract from the fact that the strongest justification for the exception is likely to be the case of murder. We have concluded that the public would rightly be outraged were the exception to the double jeopardy rule not to be applied in the present case simply on the basis that D would not have made the confessions that he did had he appreciated that they might lead to his retrial. We can see no injustice in allowing a retrial in this case. As for the sentence that D has served for perjury, that was imposed as punishment for lying under oath. It may be that the sentence reflected the consequence of the perjury, namely D’s acquittal of murder, and that for this reason it should be taken into account, to some extent, when determining the minimum term to be served 33 CASES AND MATERIALS ON CRIMINAL LAW should D now be convicted of that crime. That is a matter that will fall for consideration if and when a judge comes to sentence D for the offence of murder. 1.9 CODIFICATION OF THE CRIMINAL LAW As noted above, English criminal law is drawn from a variety of common law and statutory sources. Many of the difficulties, uncertainties and absurdities encountered in an examination of English criminal law stem from the fact there has never been a systematic reappraisal of the criminal law by Parliament. Unlike other jurisdictions, there is no penal code for England and Wales. Building upon earlier work undertaken by the Criminal Law Revision Committee the Law Commission has, since 1981, been engaged in a large scale project to codify, and in certain aspects, reform the substantive criminal law of England and Wales. Volumes I and II of the Law Commission’s Report (No 177) A Criminal Code for England and Wales attempted to lay the foundations for such a code. Subsequent Law Commission Reports have attempted to take the project further by tackling specific aspects of the substantive law such as manslaughter, nonfatal assaults and intoxication. The recent work that has been done to date (in so far as it relates to the aspects of substantive criminal law relevant to this text) can be summarised in the table at the end of this section. Extracts from these various reports have been included, as appropriate, in the chapters that follow. The case for codification generally was made in Volume I of Law Com 177 as follows: Law Com 177 Vol I 1.3 English criminal law is derived from a mixture of common law and statute. Most of the general principles of liability are still to be found in the common law, though some for example, the law relating to conspiracy and attempts to commit crime have recently been defined in Acts of Parliament. The great majority of crimes are now defined by statute but there are important exceptions. Murder, manslaughter and assault are still offences at common law, though affected in various ways by statute. There is no system in the relative roles of common law and legislation. Thus, incitement to commit crime – though closely related to conspiracy and attempts – is still a common law offence. Whether an offence is defined by statute has almost always been a matter of historical accident rather than systematic organisation . . . The legislation in force extends over a very long period of time. It is true that only a very small amount of significant legislation is earlier than the midnineteenth century, but that is quite long enough for the language of the criminal law and the style of drafting to have undergone substantial changes. 1.4 There has been a steady flow of reform of the criminal law in recent years but it has been accomplished in somewhat piecemeal fashion. Some of it is derived from our own reports, where in recent years we have been pursuing a policy of putting common law offences into statutory form, and some from reports of the Criminal Law Revision Committee and committees, like the Heilbron Committee, appointed to deal with particular problems. Other reforms have resulted from the initiative of Ministers or private Members of Parliament in introducing Bills. As there is no authoritative statement of general principles of liability or of terminology to which we or these other bodies, or their draftsmen, can turn it would be surprising if there were not some 34 INTRODUCTION TO CRIMINAL LAW: FRAMEWORK AND PROCEDURES inconsistencies and incongruities in the substance and language of the measures which are proposed and which become law. Some examples are pointed out below. This Report addresses the question whether it is desirable to replace the existing fluctuating mix of legislation and common law by one codifying statute . . . Why codify the criminal law? – The aims of codification 2.1 The Code team identified the aims of codification at the present time as being to make the criminal law more accessible, comprehensible, consistent and certain. These aspirations have a number of theoretical and practical aspects which we examine in more detail below. We believe, however, that there are also fundamental constitutional arguments of principle in favour of codification which we consider first . . . The constitutional arguments for codification 2.2 The constitutional arguments relating to codification were not stressed in the Code team’s Report but were mentioned by some commentators on consultation as important arguments in favour of codifying the criminal law. These arguments were developed, in particular, by Professor ATH Smith and were conveniently summarised (as well as being endorsed) by the Society of Public Teachers of Law in their submission to us as follows: The virtues and advantages of a Code that [the Code team’s Report] identifies (accessibility, comprehensibility, consistency and certainty) relate to essentially lawyerly concerns: what needs to be stressed is that they serve the more profound aspirations of due notice and fair warning characteristic of a system that seeks to adhere to the principle of legality. In the first place, a Code is the mechanism that will best synthesise the criminal law’s conflicting aims of social protection and crime prevention with concern for legality and due process. As Professor Wechsler, principal draftsman of the Model Penal Code, has put it, a Code demonstrates that, when so much is at stake for the community and the individual, care has been taken to make law as rational and just as law can be. A Code will, secondly, provide what the mix of common law and legislation never can, one fixed starting point for ascertaining what the law is. Thirdly, because a Criminal Code makes a symbolic statement about the constitutional relationship of Parliament and the courts, it requires a judicial deference to the legislative will greater than that which the courts have often shown to isolated and sporadic pieces of legislation. Far from it being ‘a possible disadvantage of codification’ that it places ‘limitations upon the ability of the courts to develop the law in directions which might be considered desirable’, we believe that for the criminal law this is one of its greatest merits. Then, fourthly, codification will make it possible to effect many much needed and long-overdue reforms in both the General and the Special Parts of the criminal law, that have already been adumbrated in the reports of official bodies . . . With much of this we agree. ‘Due notice’ or ‘fair warning’ – by which is meant the idea that the law should be known in advance to those accused of violating it – should clearly be regarded as a principle of major importance in our criminal justice system. While there is room for argument as to how much or how little of the content of the criminal law should be left to be developed by the common law, codification provides the opportunity for ensuring that this principle is followed over a substantial part of the criminal law. Moreover, since the criminal law is arguably the most direct expression of the relationship between a State and its citizens, it is right as a matter of constitutional principle that the relationship should be clearly stated in a criminal code the terms of which have been deliberated upon by a democratically elected legislature. 35 CASES AND MATERIALS ON CRIMINAL LAW 2.3 We shall return to consider some of the arguments in the passage above in more detail later, for example, the third and fourth arguments concerning codification and the role of the court and the relationship between restatement and reform. Suffice it to note here that we endorse them, subject to the considerations mentioned later. The second argument (that a code will provide a fixed starting point for ascertaining what the law is) relates to accessibility which is considered next . . . Accessibility and comprehensibility 2.4 If the terms of the criminal law are set out in one well-drafted enactment in place of the present fluctuating mix of statute and case-law, the law must necessarily become more accessible and comprehensible to everyone concerned with the interests of criminal justice. Accessibility and comprehensibility are important values for a number of reasons. 2.5 A large and growing number of people are now involved in administering and advising upon the criminal law. One reason for this is that the volume of work in the criminal courts has hugely increased in recent years. To meet this rise, there has been a substantial increase in the numbers of Crown Court judges, recorders and assistant recorders appointed. Many of these judges are recruited from outside the ranks of specialist criminal practitioners. In the magistrates’ courts, magistrates depend upon their clerks for advice on the law: in this area too the number of court clerks has risen to try to meet the increased workload. The position of the common law in criminal matters, and in particular the interface between common law and statutory provisions, undoubtedly contributes to making the law obscure and difficult to understand for everyone concerned in the administration of justice, whether a newly-appointed assistant recorder or magistrates’ clerk. Obscurity and mystification may in turn lead to inefficiency: the cost and length of trials may be increased because the law has to be extracted and clarified, and there is greater scope for appeals on misdirections on points of law. Moreover, if the law is not perceived by triers of fact to be clear and fair, there is a risk that they will return incorrect or perverse verdicts through misunderstanding or a deliberate disregard of what they are advised the law is. Finally, the criminal law is a particularly public and visible part of the law. It is important that its authority and legitimacy should not be undermined by perceptions that it is intelligible only to experts. 2.6 Codification would help to meet all these dangers. One of its main aims would be to provide a single clear agreed text, published under the authority of Parliament. The law would immediately become more accessible; all users would have an agreed text as a common starting point and the scope for dispute about its terms and application should be reduced. The source of the general principles of criminal liability would be found in little more than fifty sections of an Act of Parliament instead of many statutes, thousands of cases and the extensive commentaries on them to be found in the textbooks. While much criminal law would remain outside the Criminal Code Act, the law relating to most of the gravest crimes could be brought within it so that the reader would find it within one volume. Of course, no code or statute on a single subject can ever be truly comprehensive. The interpretive role of the judiciary will continue to be important; indeed, during the early years of legislation on a subject the judges’ interpretive role is more crucial than at any time thereafter. Nor do we pretend that codification will make the law accessible to Everyman in the sense that he can pick up one volume and in it find the answer to whatever his problem is. 2.7 It is impossible to quantify the potential savings in time and costs which could be brought about by codification, but they could be substantial. The impact of presenting the criminal law in clear, modern and intelligible terms should be felt at all stages of the criminal process, from operational decisions by police officers to appeals to the higher courts. Practitioners should be 36 INTRODUCTION TO CRIMINAL LAW: FRAMEWORK AND PROCEDURES assisted in advising clients and preparing for trial, trial judges should find the task of directing juries on the law easier and quicker and the length of time spent arguing points of law on appeal should be reduced. Consistency 2.8 The Code team commented in their Report that: The haphazard development of the law through the cases, and a multiplicity of statutes inevitably leads to inconsistencies, not merely in terminology but also in substance. Codification must seek to remove these. If two rules actually contradict one another they cannot both be the law. The codifier cannot rationally restate both. He must restate one and abolish the other or propose some third rule to replace both. More frequently, the inconsistency is one of principle and policy rather than of mutual contradiction . . . Inconsistency both in terminology and substance is a serious problem in English criminal law. A notable example is the use of the word ‘reckless’. Recklessness is a central element of fault requirements but it has four different meanings depending on whether it is used in the context of non-fatal offences against the person, criminal damage and manslaughter, rape or driving offences. This is impossible to defend. It makes the law unnecessarily complex and less intelligible, and it results in difficulty and embarrassment in directing juries and advising magistrates. Two such offences may well be involved in the same trial when it is clearly undesirable that the law should be seen to be laying down inconsistent tests of liability without any clear policy justification. Another example concerns combinations of preliminary offences (attempt to incite, incitement to conspire, conspiracy to attempt and so on). Some combinations constitute offences known to the law, others do not. No policy can be found to support these distinctions, and the scrutiny group examining the provisions of the draft Code Bill dealing with preliminary offences agreed that in this topic the present law is an irrational mess. 2.9 This kind of inconsistency across a range of offences is not in practice remediable by use of the common law. It is most unlikely, for example, that cases will arise which raise the issue of recklessness in all the relevant offences in an appropriate form. In relation to the preliminary offences it would be impossible for the courts to reintroduce forms of liability which have been expressly abolished by statute. Codification alone, pursuing a conscious policy of the elimination of inconsistency, can deal adequately with this kind of problem. Elimination of inconsistency will also help to ensure that the offence of one accused is dealt with fairly in relation to other offences by other accused. Unjustifiable disparity of treatment can thus be avoided . . . Certainty 2.10 In some areas of the criminal law there is substantial uncertainty as to its scope. Uncertainty can arise where the accidents of litigation and piecemeal legislation leave gaps, so that there is no law at all on a particular point. Alternatively, a statute or case may state the law obscurely, so that it is impossible to be certain as to the law to be applied to a particular problem. Uncertainty is an impediment to the proper administration of criminal justice since it may discourage the bringing of prosecutions where there is a colourable case to answer, and tend to increase the number of unmeritorious but successful submissions of ‘no case to answer’ if charges are brought. In either event respect for the law may be diminished. Certainty is very important to prevent unwarranted prosecutions being brought at all or prosecutions collapsing or convictions being quashed on appeal. Lack of certainty may also cause difficulties for defence lawyers advising their clients and for judges directing juries. 37 CASES AND MATERIALS ON CRIMINAL LAW 2.11 The common law method of resolving uncertainty by ‘retrospective’ declaration of the law is objectionable in principle. It may lead to the conviction of a defendant on the basis of criminal liability not known to exist in that form before he acted. Much criticism was directed at the decision of the House of Lords in DPP v Shaw where this was generally perceived to have happened. On the other hand, the effect of an appeal may be to narrow the law retrospectively, either by acknowledging the existence of a defence to criminal liability which was not previously recognised or by altering the definition of a criminal offence. In the . . . cases of Moloney . . . and Hancock the House of Lords restated the meaning of ‘intention’ as the mental element for murder [see further Chapters 3 and 4]. In doing so, the House disapproved the terms of a direction to a jury given ten years earlier in the leading case of Hyam. Such a change may give rise to a suggestion not only that the conviction in the earlier case was unsafe but also cast doubt on the validity of the convictions in other cases during the intervening ten-year period which had been based on the terms of the direction approved in the earlier case. Such suggestions, which are inherent in the development of the law on a case by case basis, must undermine confidence in this important branch of the law. Statutory changes, on the other hand, do not have retrospective effect. They come into force only after full Parliamentary debate with the commencement of the provisions of the statute. Earlier cases are unaffected. Law Commission Consultation Paper Law Commission Report Home Office Publication Legislating the Criminal Code: Offences Against the Person and General Principles (LCCP No 122) Legislating the Criminal Code: Offences Against the Person and General Principles (Law Com No 218) Violence: Reforming the Offences Against the Person Act 1861; Offences Against the Person Bill Legislating the Criminal Code: Intoxication and Criminal Liability (LCCP No 127) Legislating the Criminal Code: Intoxication and Criminal Liability (Law Com No 229) Clause 19 of the Offences Against the Person Bill Assisting and Encouraging Crime (LCCP No 131) Law Commission Working Paper No 50, Inchoate Offences Criminal Law: Conspiracy to Defraud (Law Com No 228) Legislating the Criminal Code: Involuntary Manslaughter (LCCP No 135) Legislating the Criminal Code: Involuntary Manslaughter (Law Com No 237) Reforming the Law on Involuntary Manslaughter: The Government’s Proposals Consent in Sex Offences: A Report to the Home Office Sex Offences Review (LC Special – 1) Setting the Boundaries: Reforming the Law on Sex Offences Criminal Law: Consent (LCCP 134) Criminal Law: Consent (LCCP 139) Criminal Law: Misuse of Trade Secrets (LCCP 150) 38 INTRODUCTION TO CRIMINAL LAW: FRAMEWORK AND PROCEDURES Legislating the Criminal Code: Fraud and Deception (LCCP No 155) Fraud (Law Com No 276) Partial Defences to Murder (LCCP 173 and 173A) Partial Defences to Murder (Law Com No 290) A New Homicide Act for England and Wales? (LCCP No 177) Inchoate Liability for Assisting and Encouraging Crime (Law Com 300) Murder, Manslaughter and Infanticide (Law Com No 304) Fraud Law Reform 1.10 THE IMPACT OF THE HUMAN RIGHTS ACT 1998 ON SUBSTANTIVE CRIMINAL LAW The conventional wisdom prevalent at the time the Human Rights Act 1998 was enacted was to the effect that it would have a very considerable impact on the criminal justice system. Since the Act came fully into force in October 2001 it has become clear that the courts are drawing a distinction between the procedural fairness aspects of the Convention, that is, those provisions that impact on criminal procedure and evidence, and those that impact on the content of the substantive law. As to the latter, there have been very few successful challenges – the doctrinal aspects of criminal law being largely a matter for signatory states provided the law in question is sufficiently clear in its ambit, is not retrospective, impinges on Convention rights only so far as is permitted under the Convention, and represents a proportionate interference with Convention rights. Brown v Stott (Procurator Fiscal, Dunfermline) [2001] 2 All ER 97 PC Lord Steyn: In the first real test of the Human Rights Act 1998 it is opportune to stand back and consider what the basic aims of the convention are. One finds the explanation in the very words of the preambles of the convention. There were two principal objectives. The first was to maintain and further realise human rights and fundamental freedoms. The framers of the convention recognised that it was not only morally right to promote the observance of human rights but that it was also the best way of achieving pluralistic and just societies in which all can peaceably go about their lives. The second aim was to foster effective political democracy. This aim necessarily involves the creation of conditions of stability and order under the rule of law, not for its own sake, but as the best way to ensuring the well being of the inhabitants of the European countries. After all, democratic government has only one raison d’etre, namely to serve the interests of all the people. The inspirers of the convention, among whom Winston Churchill played an important role, and the framers of the convention, ably assisted by English draftsmen, realised that from time to time the fundamental right of one individual may conflict with the human right of another. Thus the principles of free speech and privacy may collide. They also realised only too well that a 39 CASES AND MATERIALS ON CRIMINAL LAW single-minded concentration on the pursuit of fundamental rights of individuals to the exclusion of the interests of the wider public might be subversive of the ideal of tolerant European liberal democracies. The fundamental rights of individuals are of supreme importance but those rights are not unlimited: we live in communities of individuals who also have rights. The direct lineage of this ancient idea is clear: the convention is the descendant of the Universal Declaration of Human Rights (Paris, 10 December 1948; UN TS 2 (1949); Cmd 7226) which in Art 29 expressly recognised the duties of everyone to the community and the limitation on rights in order to secure and protect respect for the rights of others. It is also noteworthy that Art 17 of the convention prohibits, among others, individuals from abusing their rights to the detriment of others. Thus, notwithstanding the danger of intolerance towards ideas, the convention system draws a line which does not accord the protection of free speech to those who propagate racial hatred against minorities: Art 10; Jersild v Denmark (1995) 19 EHRR 1 at 25–26 (para 31). This is to be contrasted with the categorical language of the First Amendment to the United States Constitution which provides that ‘Congress shall make no law. . . abridging the freedom of speech’. The convention requires that where difficult questions arise a balance must be struck. Subject to a limited number of absolute guarantees, the scheme and structure of the convention reflects this balanced approach. It differs in material respects from other constitutional systems but as a European nation it represents our Bill of Rights. We must be guided by it. And it is a basic premise of the convention system that only an entirely neutral, impartial, and independent judiciary can carry out the primary task of securing and enforcing convention rights. This contextual scene is not only directly relevant to the issues arising on the present appeal but may be a matrix in which many challenges under the Human Rights Act should be considered. 1.10.1 ARTICLE 2 – RIGHT TO LIFE 1 2 Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection. Article 2(2) provides that the right to life is not violated where death results from the use of force by the state that was no more than was absolutely necessary to prevent another suffering unlawful violence; in effecting arrest or preventing escape; in quelling a riot or insurrection. The current domestic law allows the use of lethal force by way of self-defence, including the defence of others, where it is reasonable in the circumstances. As Andronicou v Cyprus [1998] Crim LR 823 illustrates, there is the potential for conflict between domestic law on selfdefence and the Convention. Further, McCann v United Kingdom (1996) 21 EHRR 97 provides that agents of the state can use lethal force under Art 2(2) where they honestly believe, with good reason, that such force is justified. This too is at odds with domestic law, which permits D to rely on an honest, albeit mistaken, belief that the use of reasonable force is justified. 40 INTRODUCTION TO CRIMINAL LAW: FRAMEWORK AND PROCEDURES 1.10.2 ARTICLE 3 – PROHIBITION OF TORTURE No one shall be subjected to torture or to inhuman or degrading treatment or punishment. In A v UK (1999) 27 EHRR 611, the European Court of Human Rights heard an application brought by a child who had been beaten with a stick by his stepfather. The applicant’s father had been acquitted of charges of causing actual bodily harm contrary to s 47 of the Offences Against the Persons Act 1861, having relied on reasonable chastisement in the circumstances. The court concluded that there had been a violation of Art 3 on the basis that existing domestic law on the defence of lawful chastisement had failed to provide the applicant with adequate protection. Whilst the question of whether, in any given case, the treatment suffered by an applicant reached the minimum level of severity necessary to trigger the operation of Art 3 would depend on the circumstances, where the victim was a child the minimum threshold would be more easily attained. It should be noted that, whilst the court accepted that the United Kingdom could not be held responsible for the actions of a private individual, such as the applicant’s stepfather, it was responsible for a system of criminal law that allowed a person inflicting serious harm upon a child to be acquitted on the grounds that the harm was justifiable chastisement. There has been no legislative response to this decision, but the courts have attempted to alleviate the shortcomings of the domestic law by offering guidelines on the availability of the defence; see R v H (Reasonable Chastisement) (2001) The Times, 18 May. Where a parent raises the defence of lawful chastisement the jury ought to be directed to consider: (i) the nature and context of the defendant’s behaviour; (ii) the duration of that behaviour; (iii) the physical and mental consequences in respect of the child; (iv) the age and personal characteristics of the child; (v) the reasons given by the defendant for administering the punishment. 1.10.3 ARTICLE 5 – RIGHT TO LIBERTY AND SECURITY 1 2 3 Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; (b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; (d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this 41 CASES AND MATERIALS ON CRIMINAL LAW 4 5 Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation. 1.10.4 ARTICLE 6 – RIGHT TO A FAIR TRIAL 1 2 3 In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b) to have adequate time and facilities for the preparation of his defence; (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court. Brown v Stott (Procurator Fiscal, Dunfermline) (above) Lord Steyn: The present case is concerned with Art 6 of the convention which guarantees to every individual a fair trial in civil and criminal cases. The centrality of this principle in the convention system has repeatedly been emphasised by the European Court. But even in respect of this basic guarantee, there is a balance to be observed. First, it is well settled that the public interest may be taken into account in deciding what the right to a fair trial requires in a particular context. Thus in Doorson v Netherlands (1996) 22 EHRR 330 at 358 (para 70) it was held that ‘principles of fair trial also require that in appropriate cases the interests of the defence are balanced against those of witnesses or victims called upon to testify’. Only one specific illustration of this balanced 42 INTRODUCTION TO CRIMINAL LAW: FRAMEWORK AND PROCEDURES approach is necessary. Provided they are kept ‘within reasonable limits’ rebuttable presumptions of fact are permitted in criminal legislation (Salabiaku v France (1988) 13 EHRR 379). Secondly, once it has been determined that the guarantee of a fair trial has been breached, it is never possible to justify such breach by reference to the public interest or on any other ground. This is to be contrasted with cases where a trial has been affected by irregularities not amounting to denial of a fair trial. In such cases it is fair that a court of appeal should have the power, even when faced by the fact of irregularities in the trial procedure, to dismiss the appeal if in the view of the court of appeal the defendant’s guilt is plain and beyond any doubt. However, it is a grave conclusion that a defendant has not had the substance of a fair trial. It means that the administration of justice has entirely failed. Subject to the possible exercise of a power to order a retrial where appropriate such a conviction can never be allowed to stand. See further 1.7.2 (above) the extent to which reversing the burden of proof might violate Art 6(2). 1.10.5 ARTICLE 7 – NO PUNISHMENT WITHOUT LAW 1 2 No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations. Whilst Art 7 appears to prohibit retrospective criminal legislation, it has proved to be of rather limited scope as regards the retrospective nature of the common law. The applicant in SW v United Kingdom (1996) 21 EHRR 363 had been convicted of raping his wife, following the House of Lords’ decision in R v R [1992] AC 599 to the effect that the marital exemption for rape should be abolished. He was unsuccessful in his claim that the common law operated retrospectively, in the sense that his actions, at the time they had been committed, had not constituted a criminal offence. The court ruled that Art 7 did not prohibit ‘the gradual clarification of rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could be reasonably foreseen’. ‘The Human Rights Act and the Substantive Criminal Law’ Richard Buxton [2000] Crim LR 331 This is, however, foresight of a somewhat special sort. The accretion of exceptions to the marital rape exemption might on one view be described as an evolution [that] had reached a stage where judicial recognition of the absence of immunity had become a reasonably foreseeable development of the law; but might equally have been thought to indicate that the basic 43 CASES AND MATERIALS ON CRIMINAL LAW exemption, on which the complainant in SW v United Kingdom relied, remained intact and could only be altered by legislation. That was certainly the view of the Law Commission, which published a working paper on rape within marriage shortly before the matter came to a head in the courts, and of a number of first instance judges who, however reluctantly, had seen themselves as bound by the rule. While hesitating to appeal here to Lord Simonds’ famous comparison of foresight and hindsight, if one posits an (admittedly unlikely) visit to his solicitor by Mr R to ask for advice about trying to have intercourse with his wife, it is far from clear that he would have been told with any confidence that (whatever else might be said about his conduct) he was facing a criminal conviction and a sentence of three years’ imprisonment. It would therefore seem that a ‘criminal offence’ under Article 7 can be an offence merely in gremio, provided that its appearance can be said to be foreseeable on the basis of a not very demanding standard of foresight. That adds nothing to the protection of the individual that is provided by English domestic principle, and indeed falls short of what English principle has always been thought to require. R v Misra; R v Srivastava [2004] EWCA Crim 2375 The appellants were both senior house officers having post operative care responsibilities for the deceased, Sean Phillips. The cause of death was toxic shock syndrome, the prosecution case being that this arose from the grossly negligent way in which the appellants had overseen the deceased’s care. One of the issues raised on appeal against conviction for killing by gross negligence was the extent to which the allegedly circular definition of gross negligence approved by the House of Lords in R v Adomako [1995] 1 AC 171 (i.e. that the negligence was ‘gross’ if it was so culpable as to warrant the epithet ‘criminal’) was inconsistent with Article 7 of the European Convention on Human Rights. Judge LJ: [58] We can now return to the argument based on circularity and uncertainty, and the application of Arts 6 and 7 of the ECHR. The most important passages in the speech of Lord Mackay [in R v Adomako] on the issue of circularity read: . . . The jury must go on to consider whether that breach of duty should be characterised as gross negligence and therefore as a crime. This will depend on the seriousness of the breach of duty committed by the defendant in all the circumstances in which the defendant was placed when it occurred. The jury will have to consider whether the extent to which the defendant’s conduct departed from the proper standard of care incumbent upon him, involving as it must have done a risk of death to the patient, was such that it should be judged criminal. It is true that, to a certain extent, this involves an element of circularity, but in this branch of the law I do not believe that is fatal to its being correct as a test of how far conduct must depart from accepted standards to be characterised as criminal . . . The essence of the matter which is supremely a jury question is whether, having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount in their judgment to a criminal act or omission. [59] Mr Gledhill [counsel for Misra] suggested that this passage demonstrated that an additional specific ingredient of this offence was that the jury had to decide whether the defendant’s 44 INTRODUCTION TO CRIMINAL LAW: FRAMEWORK AND PROCEDURES conduct amounted to a crime. If the jury could, or was required to, define the offence for itself, and accordingly might do so on some unaccountable or unprincipled or unexplained basis, to adopt Bacon, the sound given by the law would indeed be uncertain, and would then strike without warning. Mr Gledhill’s argument then would be compelling. [60] Looking at the authorities since Bateman, the purpose of referring to the differences between civil and criminal liability, whether in the passage in Lord Mackay’s speech to which we have just referred, or in directions to the jury, is to highlight that the burden on the prosecution goes beyond proof of negligence for which compensation would be payable. Negligence of that degree could not lead to a conviction for manslaughter. The negligence must be so bad, ‘gross’, that if all the other ingredients of the offence are proved, then it amounts to a crime and is punishable as such. [61] This point was addressed by Lord Atkin in Andrews at p 582, when he referred to Williamson (1807) 3 C&P 635: ‘. . . .where a man who practised as an accoucheur, owing to a mistake in his observation of the actual symptoms, inflicted on a patient terrible injuries from which she died’. To substantiate that charge – namely, manslaughter – Lord Ellenborough said, ‘The prisoner must have been guilty of criminal misconduct, arising either from the grossest ignorance or the most criminal inattention.’ The word ‘criminal’, in any attempt to define a crime, is perhaps not the most helpful: but it is plain that the Lord Chief Justice meant to indicate to the jury a high degree of negligence. So at a much later date in Bateman [1925] 18 Cr App R 8 a charge of manslaughter was made against a qualified medical practitioner in similar circumstances to those of Williamson’s case . . . . I think with respect that the expressions used are not, indeed they were probably not intended to be, a precise definition of the crime. [62] Accordingly, the value of references to the criminal law in this context is that they avoid the danger that the jury may equate what we may describe as ‘simple’ negligence, which in relation to manslaughter would not be a crime at all, with negligence which involves a criminal offence. In short, by bringing home to the jury the extent of the burden on the prosecution, they ensure that the defendant whose negligence does not fall within the ambit of the criminal law is not convicted of a crime. They do not alter the essential ingredients of this offence. A conviction cannot be returned if the negligent conduct is or may be less than gross. If, however, the defendant is found by the jury to have been grossly negligent, then, if the jury is to act in accordance with its duty, he must be convicted. This is precisely what Lord Mackay indicated when, in the passage already cited, he said, ‘. . .The jury must go on to consider whether that breach of duty should be characterised as gross negligence and therefore as a crime’ (our emphasis). The decision whether the conduct was criminal is described not as ‘the’ test, but as ‘a’ test as to how far the conduct in question must depart from accepted standards to be ‘characterised as criminal’. On proper analysis, therefore, the jury is not deciding whether the particular defendant ought to be convicted on some unprincipled basis. The question for the jury is not whether the defendant’s negligence was gross, and whether, additionally, it was a crime, but whether his behaviour was grossly negligent and consequently criminal. This is not a question of law, but one of fact, for decision in the individual case. [63] On examination, this represents one example, among many, of problems which juries are expected to address on a daily basis. They include equally difficult questions, such as whether a defendant has acted dishonestly, by reference to contemporary standards, or whether he has acted in reasonable self-defence, or, when charged with causing death by dangerous driving, whether the standards of his driving fell far below what should be expected of a competent and 45 CASES AND MATERIALS ON CRIMINAL LAW careful driver. These examples represent the commonplace for juries. Each of these questions could be said to be vague and uncertain. If he made enquiries in advance, at most an individual would be told the principle of law which the jury would be directed to apply: he could not be advised what a jury would think of the individual case, and how it would be decided. That involves an element of uncertainty about the outcome of the decision-making process, but not unacceptable uncertainty about the offence itself. [64] In our judgment the law is clear. The ingredients of the offence have been clearly defined, and the principles decided in the House of Lords in Adomako. They involve no uncertainty. The hypothetical citizen, seeking to know his position, would be advised that, assuming he owed a duty of care to the deceased which he had negligently broken, and that death resulted, he would be liable to conviction for manslaughter if, on the available evidence, the jury was satisfied that his negligence was gross. A doctor would be told that grossly negligent treatment of a patient which exposed him or her to the risk of death, and caused it, would constitute manslaughter. [65] After Lord Williams’ sustained criticism of the offence of manslaughter by gross negligence, the House of Lords in Adomako clarified the relevant principles and the ingredients of this offence. Although, to a limited extent, Lord Mackay accepted that there was an element of circularity in the process by which the jury would arrive at its verdict, the element of circularity which he identified did not then and does not now result in uncertainty which offends against Article 7, nor if we may say so, any principle of common law. Gross negligence manslaughter is not incompatible with the ECHR. Accordingly the appeal arising from the question certified by the trial judge must be dismissed. [66] This conclusion in effect disposes of the Article 6 argument. It is well-understood in the European Court, and accepted, that a jury is not required to give reasons for its decision. (See, for example, Saric v Denmark Application 31913/96.) In the present case, by reference to the indictment in its amended form, and the summing-up of the trial judge delivered in open court, the appellants knew the case alleged against each of them, and the issues that the jury had to consider, and we, by reference to the same documents, can examine the basis on which they were convicted. The jury concluded that the conduct of each appellant in the course of performing his professional obligations to his patient was “truly exceptionally bad”, and showed a high degree of indifference to an obvious and serious risk to the patient’s life. Accordingly, along with the other ingredients of the offence, gross negligence too, was proved. In our judgment it is unrealistic to suggest that the basis for the jury’s decision cannot readily be understood. Accordingly this contention fails. 1.10.6 ARTICLE 8 – RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE 1 2 46 Everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention INTRODUCTION TO CRIMINAL LAW: FRAMEWORK AND PROCEDURES of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. In ADT v United Kingdom [2000] Crim LR 1009, the applicant successfully argued that the domestic law prohibiting acts of gross indecency between men in private was incompatible with the right to privacy under Art 8. The police had raided the home of the applicant, a male homosexual. Items seized included video tape recordings of the applicant engaging in consensual group sex acts with up to four other adult men. In agreeing that the proceedings for gross indecency involved a violation of Art 8, the court noted that the activities had all taken place in the applicant’s home and had not been visible to anyone other than those involved. Hence it could not agree that the interference with the applicant’s privacy, resulting from the state’s reliance on the gross indecency offences, was necessary in a democratic society. The applicant’s activities were non-violent, raised no general public health concerns and were restricted to a small number of consenting adults. 1.10.7 ARTICLE 9 – FREEDOM OF THOUGHT, CONSCIENCE AND RELIGION 1 2 Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others. 1.10.8 ARTICLE 10 – FREEDOM OF EXPRESSION 1 2 Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. 47 CASES AND MATERIALS ON CRIMINAL LAW 1.10.9 ARTICLE 11 – FREEDOM OF ASSEMBLY AND ASSOCIATION 1 2 Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State. 1.10.10 WHAT IS REQUIRED OF DOMESTIC COURTS? Section 2(1) of the Human Rights Act 1998 provides that: A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any (a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights, (b) opinion of the Commission given in a report adopted under Article 31 of the Convention, (c) decision of the Commission in connection with Article 26 or 27(2) of the Convention, or (d) decision of the Committee of Ministers taken under Article 46 of the Convention . . . When interpreting domestic legislation courts must, so far as it is possible, read and give effect to such legislation in a way that is compatible with the Convention rights; see s 3(1). R v Lambert [2001] 3 All ER 577 HL For the facts, see the extract above. In the course of his speech Lord Hope looked at the obligations placed upon domestic courts in criminal cases by s 3(1) of the Human Rights Act 1998. Lord Hope: Section 3(1) of the 1998 Act provides that, so far as it is possible to do so, primary and secondary legislation must be read and given effect in a way which is compatible with the Convention rights. I should now like to explain how, as I see it, this important and far-reaching new approach to the construction of statutes should be employed consistently with the need (a) to respect the will of the legislature so far as this remains appropriate and (b) to preserve the integrity of our statute law so far as this is possible. The first point, as I said in paragraph 108 of my speech in R v A [2001] UKHL 25, is that the effect of section 3(1) is that the interpretation which it requires is to be achieved only so far as this is possible. The word ‘must’, which section 3(1) uses, is qualified by the phrase ‘so far as it is possible to do so’. The obligation, powerful though it is, is not to be performed without regard to its limitations. Resort to it will not be possible if the legislation contains provisions, either in the words or phrases which are under scrutiny or elsewhere, which expressly contradict the meaning 48 INTRODUCTION TO CRIMINAL LAW: FRAMEWORK AND PROCEDURES which the enactment would have to be given to make it compatible. The same consequence will follow if legislation contains provisions which have this effect by necessary implication. Further justification for giving this qualified meaning to section 3(1) is to be found in the words ‘read and give effect.’ As the side note indicates, the obligation is one which applies to the interpretation of legislation. This function belongs, as it has always done, to the judges. But it is not for them to legislate. Section 3(1) preserves the sovereignty of Parliament. It does not give power to the judges to overrule decisions which the language of the statute shows have been taken on the very point at issue by the legislator. The second point, as I said in paragraph 110 of my speech in R v A, is that great care must be taken, in cases where a different meaning has to be given to the legislation from the ordinary meaning of the words used by the legislator, to identify precisely the word or phrase which, if given its ordinary meaning, would otherwise be incompatible. Just as much care must then be taken to say how the word or phrase is to be construed if it is to be made compatible. The justification for this approach to the use of section 3(1) is to be found in the nature of legislation itself. Its primary characteristic, for present purposes, is its ability to achieve certainty by the use of clear and precise language. It provides a set of rules by which, according to the ordinary meaning of the words used, the conduct of affairs may be regulated. So far as possible judges should seek to achieve the same attention to detail in their use of language to express the effect of applying section 3(1) as the parliamentary draftsman would have done if he had been amending the statute. It ought to be possible for any words that need to be substituted to be fitted into the statute as if they had been inserted there by amendment. If this cannot be done without doing such violence to the statute as to make it unintelligible or unworkable, the use of this technique will not be possible. It will then be necessary to leave it to Parliament to amend the statute and to resort instead to the making of a declaration of incompatibility. As to the techniques that may be used, it is clear that the courts are not bound by previous authority as to what the statute means. It has been suggested that a strained or nonliteral construction may be adopted, that words may be read in by way of addition to those used by the legislator and that the words may be ‘read down’ to give them a narrower construction than their ordinary meaning would bear: Clayton and Tomlinson, The Law of Human Rights, para 4.28, p 168 (Oxford, 2000). It may be enough simply to say what the effect of the provision is without altering the ordinary meaning of the words used: see Brown v Stott 2000 JC 328, 355B-C, per Lord Justice General Rodger. In other cases, as in Vasquez v The Queen [1994] 1 WLR 1304, the words used will require to be expressed in a different language in order to explain how they are to be read in a way that is compatible. The exercise in these cases is one of translation into compatible language from language that is incompatible. In other cases, as in R v A, it may be necessary for words to be read in to explain the meaning that must be given to the provision if it is to be compatible. But the interpretation of a statute by reading words in to give effect to the presumed intention must always be distinguished carefully from amendment. Amendment is a legislative act. It is an exercise which must be reserved to Parliament. Hence domestic courts are given a degree of latitude – reference to the jurisprudence of Strasbourg is mandatory – but it need only be taken into account. Legislation must be construed in a manner compatible with the Convention but only so far as is possible. Three points are particularly worth noting: • When applying the European Convention on Human Rights a domestic court should be 49 CASES AND MATERIALS ON CRIMINAL LAW prepared to take a generous view as to whether an activity falls within the protection afforded by the Convention’s Articles. • The Convention is to be regarded as a ‘living’ or ‘dynamic’ instrument to be interpreted in the light of current conditions. More recent decisions of the European Court of Human Rights will be regarded as carrying more weight than earlier decisions. • Where an Article of the Convention permits some state interference with the enjoyment of a right, a court assessing the extent to which that interference is compatible with the Convention should consider (i) whether the interference is provided for by law; (ii) whether it serves a legitimate purpose; (iii) whether the interference is proportionate to the end to be achieved; (iv) whether it is necessary in a democratic society; (v) whether it is discriminatory in operation; and (vi) whether the state should be allowed a margin of appreciation in its compliance with the Convention – that is, be allowed to apply the Convention to suit national standards. 1.10.11 THE ‘QUALITY OF LAW’ TEST Articles 5, 6 and 7 of the European Convention on Human Rights make reference to concepts such as ‘an offence’, ‘criminal charge’ and ‘criminal offence’; Arts 9–11 refer to rights being limited as ‘prescribed by law’. These expressions presuppose a degree of certainty as to whether given conduct is criminal or not, and as to whether the law prescribes certain conduct or not. This in turn raises the possibility of certain aspects of domestic criminal law failing the ‘quality of law’ test on the basis that the scope of certain offences cannot be clearly identified – the jurisprudence of the European Convention on Human Rights requires that a ‘norm’ cannot be described as a law unless it can be formulated with sufficient precision so as to enable a citizen to regulate his conduct to avoid incurring liability. For example, in Hashman and Harrup v UK [2000] Crim LR 185, anti-hunt protestors who were found not to have breached the peace were nevertheless ordered by the court to be bound over because they had acted contra bono mores (in a way that was wrong in the eyes of the majority of citizens). The European Court of Human Rights held that this was a violation of Art 10 – the expression contra bono mores was too vague to satisfy the ‘prescribed by law’ test, and could not be relied upon to justify detention under Art 5. In R v Hinks [2000] 4 All ER 835 (see Chapter 9.2), Lord Hobhouse (dissenting) was concerned that the effect of the majority view in that case was to create an offence where liability hinged entirely on the issue of whether or not the accused had acted dishonestly. He was particularly concerned at the prospect of a criminal conviction based upon conduct: . . . which involves no inherent illegality and may only be capable of being criticised on grounds of lack of morality [that is, it is dishonest] . . . [t]his approach itself raises fundamental questions. An essential function of the criminal law is to define the boundary between what conduct is criminal and what merely immoral. Both are the subject of the disapprobation of ordinary right-thinking citizens and the distinction is liable to be arbitrary or at least strongly influenced by considerations subjective to the individual members of the tribunal. To treat otherwise lawful conduct as criminal merely because it is open to such disapprobation would be contrary to principle and open to the 50 INTRODUCTION TO CRIMINAL LAW: FRAMEWORK AND PROCEDURES objection that it fails to achieve the objective and transparent certainty required of the criminal law by the principles basic to human rights. See further the arguments raised in R v Smethurst (2001) The Times, 13 April, where the Court of Appeal rejected the contention that s 1 of the Protection of Children Act 1978 (offence of possession child pornography) was in conflict with Art 10 (freedom of expression). The court accepted that the concept of indecency might lack certainty, but was persuaded by the overriding public interest in protecting morality. R v Goldstein [2004] 2 All ER 589 The Court of Appeal was asked to consider whether the common law offence of public nuisance violated the principle of legal certainty enshrined in Art 7 of the European Convention on Human Rights. Latham LJ: The essential principle which the offence of public nuisance is said to infringe is that a law must be formulated with sufficient precision to enable a citizen to regulate his conduct. It is similar to the concept required in Arts 8(2) and 10(2), to which we will return, that the derogation from the right protected by those articles can only be justified if it is ‘in accordance with the law’ (see Art 8(2)) or ‘prescribed by law’ (see Art 10(2)). The latter phrase was considered by the European Court of Human Rights in Sunday Times v UK (1979) 2 EHRR 245. It stated (at 271 (para 49)): . . . a norm cannot be regarded as a ‘law’ unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able – if need be with appropriate advice – to foresee, to a degree which is reasonable in all the circumstances, the consequences that a given action may entail. Those consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice. In the context of Art 7, we have been referred to the decision of X Ltd v UK (1982) 28 DR 77 which was an application in which the European Commission of Human Rights (the Commission) considered the common law offence of blasphemous libel. The Commission stated (at 81 (para 9)): The Commission considers that the same principles also apply to the interpretation and application of the common law. Whilst this branch of the law presents certain particularities for the very reason that it is by definition law developed by the courts, it is nevertheless subject to the rule that the law-making function of the courts must remain within reasonable limits. In particular in the area of the criminal law it is excluded, by virtue of Article 7(1) of the Convention, that any acts not previously punishable should be held by the courts to entail criminal liability, or that existing offences should be extended to cover facts which previously clearly did not constitute a criminal offence. This implies that constituent elements of an offence such as e.g. the particular form of culpability required for its completion 51 CASES AND MATERIALS ON CRIMINAL LAW may not be essentially changed, at least not to the detriment of the accused, by the case law of the courts. On the other hand it is not objectionable that the existing elements of the offence are clarified and adapted to new circumstances which can reasonably be brought under the original concept of the offence. The respondents submit that this decision is in fact helpful to them. Mr Perry submits on their behalf that the elements of the offence are perfectly clear, and their application to the present cases is merely an example of the way in which the law can be utilised to deal with new factual situations. He has referred us to SW v UK, CR v UK (1995) 21 EHHR 363 where the court considered and rejected complaints by two applicants who had been found guilty of raping their wives which was an undoubted extension of the concept of rape as had been previously understood. Although the Commission had declared the complaints admissible, he relies on its opinion (at 375 (para 48)), in which the Commission stated: It is however compatible with the requirements of Article 7(1) for the existing elements of an offence to be clarified or adapted to new circumstances or developments in society in so far as this can reasonably be brought under the original concept of the offence. The constituent elements of an offence may not however be essentially changed to the detriment of an accused and any progressive development by way of interpretation must be reasonably foreseeable to him with the assistance of appropriate legal advice if necessary. We consider that Mr Perry’s submissions are correct. If the law can be adapted to deal with new situations, it is clear that the law can be applied to new situations. The elements of the offence are sufficiently clear to enable a person, with appropriate legal advice if necessary, to regulate his behaviour. All that is required is a reasonable degree of foreseeability of the consequences which action or conduct may entail. The indictments in the present cases do no more than seek to apply the elements of the offence to the particular facts; and it is for the jury, appropriately directed, to determine whether or not the charges are made out. A citizen, appropriately advised, could foresee that the conduct identified was capable of amounting to a public nuisance. We do not accordingly consider that there has been any breach of Art 7. We turn then to Arts 8 and 10. They essentially raise the same issue of principle and can conveniently be considered together. . . . It is submitted on behalf of the appellants that a prosecution for committing a public nuisance is capable of resulting in a breach of Arts 8(1) or 10(1), that it is not a law which is sufficiently certain to justify interference on the basis that it is either ‘in accordance with the law’ or ‘prescribed by law’ and that the interference is not ‘necessary in a democratic society’. We recognise that the offence is capable of interfering with the rights protected by Arts 8(1) and 10(1) . . . The question accordingly is whether or not the interference can be justified under Arts 8(2) and 10(2). We consider that the question of whether or not the interference was ‘in accordance with the law’ or ‘prescribed by law’ has been answered by our conclusion that there has been no breach of Art 7, and the reasons which we have given for that conclusion. The remaining question is, therefore, whether or not the offence can properly be described as ‘necessary’ in that it is intended to meet a pressing social need of the sort identified in each of those articles. In particular, in relation to Art 10, we accept that the right to freedom of expression includes the right to ‘offend, shock or disturb’ as the court stated in Handyside v UK (1976) 1 EHRR 737 at 754 (para 49). The jurisprudence of the Commission and the Court of Human Rights has, however, consistently pointed out that in accordance with Art 10(2) a state can legitimately impose limits to 52 INTRODUCTION TO CRIMINAL LAW: FRAMEWORK AND PROCEDURES this freedom for the preservation of disorder or crime, the protection of morals and for the protection of the rights and freedoms of others. This includes the right of the public not to be outraged by the public behaviour of others. In S v UK App No 17634/91 (2 September 1991, unreported), the Commission considered the common law offence of outraging public decency committed by an artist and art gallery curator who had exhibited a model with freeze-dried human foetuses as earrings. The Commission, while recognising that freedom of artistic expression fell within the ambit of Art 10, declared the application inadmissible as being manifestly ill-founded. It found that the offence of outraging public decency: (a) was prescribed by law, and (b) pursued the legitimate aim of protection of morals, and (c) was not disproportionate and could be regarded as necessary in a democratic society. The court subsequently considered the problem in the context of the law of blasphemy. In Wingrove v UK (1996) 1 BHRC 509, the court held that the law of blasphemy, although imprecise, was none the less justified. The applicant had been refused a certification certificate for his video Visions of Ecstasy on the basis that it infringed the criminal law of blasphemy. The court found that the offence was prescribed by law and served the legitimate aim of protecting the rights of others. The court held (at 526–527 (para 60)) that the interference with the applicant’s rights under Art 10 was not disproportionate and could be regarded as necessary in a democratic society . . . In our view, the offence of causing a public nuisance is a proper and proportionate response to the need to protect the public from acts, or omissions, which substantially interfere with the comfort and convenience of the public as being taken in the interests of public safety, for the prevention of disorder, for the protection of health and morals, and in particular the need to protect the rights of others. The level of imprecision inherent in the offence is necessary to enable it to be applied flexibly to meet new situations. We therefore reject the argument that the offence is capable of amounting to a breach of Arts 8 or 10. FURTHER READING Arden, M, ‘Criminal law at the crossroads: the impact on human rights from the Law Commission’s perspective and the need for a Code’ [1999] Crim LR 439 Ashworth, A, ‘Interpreting criminal statutes: a crisis of legality?’ (1991) 107 LQR 419 Ashworth, A and M Blake, ‘The presumption of innocence in English criminal law’ [1996] Crim LR 306 Bingham, Lord CJ, ‘Must we wait for ever?’ [1998] Crim LR 694 Buxton, R, ‘The Human Rights Act and the substantive criminal law’ [2000] Crim LR 331 Dennis, I, ‘The critical condition of criminal law’ [1997] Current Legal Problems 213 Phillipson, G, ‘The Human Rights Act, “horizontal effect” and the common law: a bang or a whimper?’ (1999) 62 MLR 824 Smith, ATH, ‘The Human Rights Act 1998 – (1) The Human Rights Act and the criminal lawyer: the constitutional context’ [1999] Crim LR 251 Wells, C, ‘Codification of the criminal law: restatement or reform?’ [1986] Crim LR 314 Williams, G, ‘The definition of crime’ [1955] Current Legal Problems 107 53 CHAPTER 2 ACTUS REUS: THE EXTERNAL ELEMENTS OF AN OFFENCE CONTENTS 2.1 2.2 2.3 2.4 2.5 Terminology A state of affairs amounting to an actus reus Codification and law reform proposals Actus reus must be voluntary Criminal liability for omissions 54 55 56 56 57 2.1 TERMINOLOGY Criminal liability generally rests upon proof of two things – actus reus and mens rea. Actus reus literally means ‘guilty act’, but this is clearly something of a misnomer as the defendant might not bear any guilt, as in fault, for what has occurred, and, as will be seen, there are many instances where no positive act, as such, has to be established. As Lord Diplock observed in R v Miller [1983] 2 AC 161 (HL): This expression [actus reus] is derived from Coke’s brocard (3 Co Inst ch 1, fo 10), actus non facit reum, nisi mens sit rea, by converting incorrectly into an adjective the word reus which was there used correctly in the accusative case as a noun. As long ago as 1889 in R v Tolson 23 QBD 168 at 185, [1886–90] All ER Rep 26 at 36–37 Stephen J when dealing with a statutory offence, as are your Lordships in the instant case, condemned the phrase as likely to mislead, though his criticism in that case was primarily directed to the use of the expression mens rea . . . it is the use of the expression actus reus that is liable to mislead, since it suggests that some positive act on the part of the accused is needed to make him guilty of a crime and that a failure or omission to act is insufficient to give rise to criminal liability unless some express provision in the statute that creates the offence so provides . . . it would I think be conducive to clarity of analysis of the ingredients of a crime that is created by statute, as are the great majority of criminal offences today, if we were to avoid bad Latin and instead to think and speak . . . about the conduct of the accused and his state of mind at the time of that conduct, instead of speaking of actus reus and mens rea. ACTUS REUS: THE EXTERNAL ELEMENTS OF AN OFFENCE It is actually more sensible to think of actus reus as a term referring to the external elements of an offence, that is, those elements of the offence that have to be established by the prosecution, other than those that relate to the defendant’s state of mind. The type of actus reus that has to be established will vary according to the definition of the offence in question. Some obviously require proof of conduct on the part of the defendant, such as is the case with an offence like rape (see further Chapter 6). Other offences require proof that the defendant’s actions caused a prohibited consequence. The topic of causation is dealt with in detail in the context of homicide in Chapter 4. In some cases it will be suffcient for the prosecution to establish that a particular state of affairs existed. This might be the case with an offence such as being found in the United Kingdom without having permission to remain; see R v Larsonneur considered below. Where a defendant is under a legal duty to act, his mere failure to act might give rise to the commission of an actus reus. The imposition of criminal liability is based on an assumption that a defendant’s acts or omissions at the time of the alleged offence were voluntary, in the sense that he was able to exercise some control over his actions or failure to act. Involuntariness can arise from a number of causes, some of which will found a defence in criminal law, some of which will not. See further intoxication (Chapter 13.1); duress and necessity (Chapter 14); insanity (Chapter 13.5) and non-insane automatism (Chapter 13.4). 2.2 A STATE OF AFFAIRS AMOUNTING TO AN ACTUS REUS R v Larsonneur (1933) 24 Cr App R 74 (CA) Lord Hewart CJ: . . . The fact is, as the evidence shows, that the appellant is an alien. She has a French passport, which bears this statement under the date 14 March 1933, ‘Leave to land granted at Folkestone this day on condition that the holder does not enter any employment, paid or unpaid, while in the United Kingdom’, but on 22 March that condition was varied and one finds these words: ‘The condition attached to the grant of leave to land is hereby varied so as to require departure from the United Kingdom not later than 22 March 1933’. Then follows the signature of an Under-Secretary of State. In fact, the appellant went to the Irish Free State and afterwards, in circumstances which are perfectly immaterial, so far as this appeal is concerned, came back to Holyhead. She was at Holyhead on 21 April 1933, a date after the day limited by the condition on her passport . . . The appellant was, therefore, on 21 April 1933, in the position in which she would have been if she had been prohibited from landing by the Secretary of State and, that being so, there is no reason to interfere with the finding of the jury. She was found here and was, therefore, deemed to be in the class of persons whose landing had been prohibited by the Secretary of State, by reason of the fact that she had violated the condition on her passport. The appeal, therefore, is dismissed and the recommendation for deportation remains. 55 CASES AND MATERIALS ON CRIMINAL LAW COMMENTS AND QUESTIONS 1 Given that Larsonneur was deported against her will to the United Kingdom, is there an argument as to the ‘voluntariness’ of her actions that brought about the actus reus? Lanham argues in ‘Larsonneur revisited’ [1976] Crim LR 276 that she was the author of her own misfortunes in going to Ireland in order to enter into an arranged marriage that would have enabled her to remain in the United Kingdom. In effect there was prior fault on her part in putting herself in a position where she risked deportation to the United Kingdom against her will. 2 In Winzar v Chief Constable of Kent (1983) The Times, 28 March (DC), the appellant was convicted of being drunk on the highway (contrary to s 12 of the Licensing Act 1872). He had been taken to a hospital; the doctors there, deciding that he was merely drunk, asked him to leave. The appellant remained in the hospital and the police were called. They placed the appellant in a police car parked in the road outside the hospital. The appellant was then charged with being drunk on the highway. It was held that the fact that his presence on the highway was not of his own volition and was momentary did not amount to a defence. The actus reus merely required proof of a state of affairs – drunkenness in a public place. Again an element of prior fault arises here. Winzar, of his own volition, became intoxicated and thereby put himself in a position whereby he might be found drunk and disorderly in a public place. 2.3 CODIFICATION AND LAW REFORM PROPOSALS Clause 15 of the draft code seeks to codify the meaning to be given to the term ‘act’ in the following way: A reference in this Act to an ‘act’ as an element of an offence refers also, where the context permits, to any result of the act, and any circumstance in which the act is done or the result occurs, that is an element of the offence, and references to a person acting or doing an act shall be construed accordingly. As the commentary on the code observes: . . . Clause 15 is an interpretation clause. It does not define ‘act’. It simply explains that where the Code refers to ‘an act’ or to a person’s ‘acting’ or ‘doing an act’, the reference embraces whatever relevant results and circumstances the context permits. This clarification of the use of the word ‘act’ is not in fact essential; for we believe that no provision of the Code is on a fair reading truly ambiguous in its use of the term. But the clause may prove useful for the avoidance of doubt in those inexperienced in the reading of criminal statutes and as a protection against perverse reading or hopeless argument [Vol II, para 7.6]. 2.4 ACTUS REUS MUST BE VOLUNTARY As the quote from Lord Diplock at the beginning of this chapter indicates, actus reus and mens rea are not discrete concepts. The issue of voluntariness illustrates this. All crimes require 56 ACTUS REUS: THE EXTERNAL ELEMENTS OF AN OFFENCE proof of actus reus. Some crimes, often referred to as crimes of strict or absolute liability, require no mens rea. It might be thought that in relation to crimes of absolute liability no inquiry into the defendant’s state of mind would be necessary. This is not the case. For an actus to be reus the prosecution must show that actions were voluntary. Voluntariness itself is a difficult concept because lack of voluntariness can arise from a number of causes. A defendant might claim that his actions were not voluntary because he acted under coercion, duress, or some other form of necessity. This does not amount to involuntariness for the purposes of the criminal law. A defendant acting under duress is aware of his actions and is controlling his actions, no matter how reluctant he may be to carry out certain acts. True involuntariness arises where D’s brain is not consciously controlling his actions – such as where he is experiencing a fit of some sort. In such cases the defendant may be able to raise the complete defence of automatism, or sane automatism as it is sometimes referred to in order to distinguish it from insane automatism. The defence of automatism is considered at Chapter 13.4. 2.5 CRIMINAL LIABILITY FOR OMISSIONS The basic principle here is that a failure to act can only give rise to the actus reus of an offence if the defendant was, at the time of the omission, under a legal duty to act. Legal duties can arise from statute, contract, the holding of a particular public office, or from the common law. The most obvious source of a positive legal duty to act is primary legislation. There are numerous Acts of Parliament that place individuals or companies under a legal duty to act in a particular way, whether it be the reporting of road accidents involving injury (see s 170(4) of the Road Traffic Act 1988), the duty to provide a safe working environment (see Health and Safety at Work Act 1974) or the statutory duty owed by parents and guardians towards children (see the Children and Young Persons Act 1933). See further R v Lowe [1973] QB 702 (CA), considered in Chapter 4. A positive duty to act can be found in the express or implied terms of a contract of employment. An obvious example would be the contractual obligation placed upon a lifeguard at a swimming pool to go to the aid of a swimmer in distress. The fact that the beneficiary of this duty is not a party to the contract is not relevant when assessing the employee’s criminal liability. Similarly, the courts may be willing to identify positive legal duties arising from the fact that the defendant holds a particular office. Common law duties are effectively residual. If the courts feel that the defendant was under a moral duty to act, and the moral duty is such that it ought to be reflected in and supported by the law, the courts will identify a common law duty to act. As the case law shows, this can arise in respect of family relationships, where one party voluntarily undertakes the care of another, or where the defendant accidentally causes harm and comes under a responsibility to act in order to mitigate the effect of the harm. 57 CASES AND MATERIALS ON CRIMINAL LAW 2.5.1 LIABILITY FOR FAILURE TO ACT BASED ON CONTRACT OF EMPLOYMENT R v Pittwood (1902) 19 TLR 37 (Taunton Assizes) The defendant was employed as a gatekeeper responsible for closing the gates of a level crossing when a train was due. On this occasion he failed to shut the gate and a hay cart crossing the line was involved in a collision with a train. A man was killed as a result. The defendant was convicted of manslaughter. As the report of the case indicates Wright J gave the judgment of the court: Wright J: . . . was clearly of opinion that in this case there was gross and criminal negligence, as the man was paid to keep the gate shut and protect the public. In his opinion there were three grounds on which the verdict could be supported: (1) There might be cases of misfeasance and cases of mere nonfeasance. Here it was quite clear there was evidence of misfeasance as the prisoner directly contributed to the accident. (2) A man might incur criminal liability from a duty arising out of contract. The learned judge quoted in support of this R v Nicholls (1875) 13 Cox 75; R v Elliott (1889) 16 Cox 710; R v Benge (1865) 4 F & F 594; R v Hughes (1857) Dears & B 248. The strongest case of all was, perhaps, R v Instan . . . and that case clearly governed the present charge. (3) With regard to the point that this was only an occupation road, he clearly held that it was not, as the company had assumed the liability of protecting the public whenever they crossed the road . . . 2.5.2 LIABILITY FOR OMISSION BASED ON HOLDING AN OFFICE R v Dytham [1979] QB 722 (CA) [Lord Widgery CJ read the following judgment of the court prepared by Shaw LJ:] The appellant was a police constable in Lancashire. On 17 March 1977 at about one o’clock in the morning he was on duty in uniform and was standing by a hot-dog stall in Duke Street, St Helens. A Mr Wincke was inside the stall and a Mr Sothern was by it. Some 30 yards away was the entrance to Cindy’s Club. A man named Stubbs was ejected from the club by a bouncer. A fight ensued in which a number of men joined. There arose cries and screams and other indications of great violence. Mr Stubbs became the object of a murderous assault. He was beaten and kicked to death in the gutter outside the club. All this was audible and visible to the three men at the hot-dog stall. At no stage did the appellant make any move to intervene or any attempt to quell the disturbance or to stop the attack on the victim. When the hubbub had died down he adjusted his helmet and drove away. According to the other two at the hot-dog stall, he said that he was due off and was going off. His conduct was brought to the notice of the police authority. As a result he appeared on 10 October 1978 in the Crown Court at Liverpool to answer an indictment which was in these terms: . . . the charge against you is one of misconduct of an officer of justice, in that you . . . misconducted yourself whilst acting as an officer of justice in that you being present and a witness to a criminal offence, namely a violent assault upon one . . . Stubbs by three others 58 ACTUS REUS: THE EXTERNAL ELEMENTS OF AN OFFENCE deliberately failed to carry out your duty as a police constable by wilfully omitting to take any steps to preserve the Queen’s Peace or to protect the person of the said . . . Stubbs or to arrest or otherwise bring to justice [his] assailants. On arraignment the appellant pleaded not guilty and the trial was adjourned to 7 November. On that day before the jury was empanelled counsel for the appellant took an objection to the indictment by way of demurrer. The burden of that objection was that the indictment as laid disclosed no offence known to the law. Neill J ruled against the objection and the trial proceeded. The defence on the facts was that the appellant had observed nothing more than that a man was turned out of the club. It was common ground that in that situation his duty would not have required him to take any action. The jury were directed that the crucial question for their consideration was whether the appellant had seen the attack on the victim. If he had, they could find him guilty of the offence charged in the indictment. The jury did return a verdict of guilty. Hence this appeal which is confined to the matters of law raised by the demurrer pleaded at the court of trial. At the outset of his submissions in this court counsel for the appellant conceded two matters. The first was that a police constable is a public officer. The second was that there does exist at common law an offence of misconduct in a public office. From that point the argument was within narrow limits though it ran deep into constitutional and jurisprudential history. The effect of it was that not every failure to discharge a duty which devolved on a person as the holder of a public office gave rise to the common law offence of misconduct in that office. As counsel for the appellant put it, nonfeasance was not enough. There must be a malfeasance or at least a misfeasance involving an element of corruption. In support of this contention a number of cases were cited from 18th and 19th century reports. It is the fact that in nearly all of them the misconduct asserted involved some corrupt taint; but this appears to have been an accident of circumstance and not a necessary incident of the offence. Misconduct in a public office is more vividly exhibited where dishonesty is revealed as part of the dereliction of duty. Indeed in some cases the conduct impugned cannot be shown to have been misconduct unless it was done with a corrupt or oblique motive . . . In the present case it was not suggested that the appellant could not have summoned or sought assistance to help the victim or to arrest his assailants. The charge as framed left this answer open to him. Not surprisingly he did not seek to avail himself of it, for the facts spoke strongly against any such answer. The allegation made was not of mere nonfeasance but of deliberate failure and wilful neglect. This involves an element of culpability which is not restricted to corruption or dishonesty but which must be of such a degree that the misconduct impugned is calculated to injure the public interest so as to call for condemnation and punishment. Whether such a situation is revealed by the evidence is a matter that a jury has to decide. It puts no heavier burden on them than when in more familiar contexts they are called on to consider whether driving is dangerous or a publication is obscene or a place of public resort is a disorderly house . . . The judge’s ruling was correct. The appeal is dismissed. COMMENTS AND QUESTIONS 1 Note that Dytham was not charged with an offence that related to the injuries actually suffered by Stubbs. Is this because of the difficulties in proving causation? Could the prosecution prove that the injuries would not have been sustained had Dytham intervened? 59 CASES AND MATERIALS ON CRIMINAL LAW 2 What if Dytham had been off duty when the incident occurred? Do off-duty police officers have legal duties to act that do not apply to the ordinary citizen? 3 D is a consultant cardiologist flying on a plane from London to Manchester. A passenger on the flight has a heart attack and the cabin crew ask if there is a doctor on board. D does not make himself known to the crew and the passenger dies before the plane lands. Does D incur any legal liability for the death? 4 Consider further how far the law imposes a duty to act on social workers and teachers. Does the duty only extend to those children officially placed in their care? What if a teacher or social worker became aware that a neighbour was sexually abusing a child? Could failure to act result in criminal liability? 2.5.3 LIABILITY FOR OMISSION BASED ON PARENTAL RESPONSIBILITY R v Gibbins and Proctor (1918) 13 Cr App R 134 (CA) Proctor lived with Gibbins as his common law wife. There was evidence that Gibbins’ daughter Nelly starved to death through neglect by both parents. The court considered the legal duties imposed upon both defendants. Darling J: . . . It has been said that there ought not to have been a finding of guilty of murder against Gibbins. The court agrees that the evidence was less against Gibbins than Proctor, Gibbins gave her money, and as far as we can see it was sufficient to provide for the wants of themselves and all the children. But he lived in the house and the child was his own, a little girl of seven, and he grossly neglected the child. He must have known what her condition was if he saw her, for she was little more than a skeleton. He is in this dilemma; if he did not see her the jury might well infer that he did not care if she died; if he did he must have known what was going on. The question is whether there was evidence that he so conducted himself as to show that he desired that grievous bodily injury should be done to the child. He cannot pretend that he showed any solicitude for her. He knew that Proctor hated her, knew that she was ill and that no doctor had been called in, and the jury may have come to the conclusion that he was so infatuated with Proctor, and so afraid of offending her, that he preferred that the child should starve to death rather than that he should be exposed to any injury or unpleasantness from Proctor. It is unnecessary to say more than that there was evidence that Gibbins did desire that grievous bodily harm should be done to the child; he did not interfere in what was being done, and he comes within the definition which I have read, and is therefore guilty of murder. The case of Proctor is plainer. She had charge of the child. She was under no obligation to do so or to live with Gibbins, but she did so, and receiving money, as it is admitted she did, for the purpose of supplying food, her duty was to see that the child was properly fed and looked after, and to see that she had medical attention if necessary. We agree with what Lord Coleridge CJ said in R v Instan [1893] 1 QB 450: ‘There is no case directly in point, but it would be a slur upon, and a discredit to the administration of, justice in this country if there were any doubt as to the legal principle, or as to the present case being within it. The prisoner was under a moral obligation to the deceased from which arose a legal duty towards her; that legal duty the prisoner has wilfully 60 ACTUS REUS: THE EXTERNAL ELEMENTS OF AN OFFENCE and deliberately left unperformed, with the consequence that there has been an acceleration of the death of the deceased owing to the non-performance of that legal duty.’ Here Proctor took upon herself the moral obligation of looking after the children; she was de facto, though not de jure, the wife of Gibbins and had excluded the child’s own mother. She neglected the child undoubtedly, and the evidence shows that as a result the child died. So a verdict of manslaughter at least was inevitable. Re A (Children) (Conjoined Twins: Surgical Separation) [2000] 4 All ER 961 For the facts see Chapter 14.7 – the court was asked to rule on the legality of an operation to separate conjoined twins. The operation would enable the stronger twin (Jodie) to survive, but would inevitably result in the death of the weaker twin (Mary). Without an operation to separate, both twins would die within months. Ward LJ considered the extent to which a failure to permit medical intervention, or a refusal by the doctors to operate, might amount to a culpable omission. Ward LJ: I seem to be the lone voice raising the unpalatable possibility that the doctors and even – though given the horror of their predicament it is anathema to contemplate it – the parents might kill Jodie if they fail to save her life by carrying out the operation to separate her from Mary. Although I recoil at the very notion that these good people could ever be guilty of murder, I am bound to ask why the law will not hold that the doctors and the parents have come under a duty to Jodie. If the operation is in her interests the parents must consent for their duty is to act consistent with her best interests: see Lord Scarman in Gillick in the passages I have already set out. I know there is a huge chasm in turpitude between these stricken parents and the wretched parents in R v Gibbins and Proctor (1918) 13 Cr App R 134 who starved their child to death. Nevertheless I am bound to wonder whether there is strictly any difference in the application of the principle. They know they can save her. They appreciate she will die if not separated from her twin. Is there any defence to a charge of cruelty under section 1 of the Children and Young Persons Act 1933 in the light of the clarification of the law given by R v Sheppard [1981] AC 395 . . . Would it not be manslaughter if Jodie died through that neglect? I ask these insensitive questions not to heap blame on the parents. No prosecutor would dream of prosecuting. The sole purpose of the enquiry is to establish whether either or both parents and doctors have come under a legal duty to Jodie, as I conclude they each have, to procure and to carry out the operation which will save her life. If so then performance of their duty to Jodie is irreconcilable with the performance of their duty to Mary. Certainly it seems to me that if this court were to give permission for the operation to take place, then a legal duty would be imposed on the doctors to treat their patient in her best interests, that is, to operate upon her. Failure to do so is a breach of their duty. To omit to act when under a duty to do so may be a culpable omission . . . The [Archbishop of Westminster, who was permitted to make written submissions] would agree. He tells us that: To aim at ending an innocent person’s life is just as wrong when one does it by omission as when one does it by a positive act. 61 CASES AND MATERIALS ON CRIMINAL LAW COMMENTS AND QUESTIONS 1 Section 5 of the Domestic Violence, Crime and Victims Act 2004 introduces a new form of liability for homicide, the offence of causing or allowing the death of a child or vulnerable adult. The offence can be committed by way of act or omission and extends to situations where D fails to intervene to protect a child or vulnerable adult who is a member of the same household; see further Chapter 4.10. 2.5.4 LIABILITY FOR OMISSION BASED ON VOLUNTARILY ASSUMING A DUTY OF CARE R v Stone and Dobinson [1977] QB 354 (CA) Geoffrey Lane LJ: . . . In 1972, at 75 Broadwater, Bolton-on-Dearne in Yorkshire, there lived three people. Stone, an ex-miner now aged 67, widowed for 10 years, who is partially deaf, almost totally blind and has no appreciable sense of smell; Gwendoline Dobinson, now aged 43, who had been his housekeeper and mistress for some eight years, and Stone’s son called Cyril, aged 34, who is mentally subnormal. Stone is of low average intelligence, Dobinson is described as ineffectual and somewhat inadequate. There was an addition to that household in 1972. Stone had a younger sister called Fanny, about 61 at the date of her death. She had been living with another sister called Rosy. For some reason, probably because Rosy could not tolerate her any longer, she had decided to leave. She came to live at No 75, where she occupied a small front room . . . She was eccentric in many ways. She was morbidly and unnecessarily anxious about putting on weight and so denied herself proper meals. She would take to her room for days. She would often stay in her room all day until the two appellants went to the public house in the evening, when she would creep down and make herself a meal. In early spring 1975 the police called at the house. Fanny had been found wandering about in the street by herself without apparently knowing where she was. This caused the appellants to try and find Fanny’s doctor. They tried to trace him through Rosy, but having walked a very considerable distance in their search they failed. It transpired that they had walked to the wrong village. Fanny herself refused to tell them the doctor’s name. She thought she would be ‘put away’ if she did. Nothing more was done to enlist outside professional aid. In the light of what happened subsequently there can be no doubt that Fanny’s condition over the succeeding weeks and months must have deteriorated rapidly. By July 1975 she was, it seems, unable or unwilling to leave her bed and, on 19 July, the next-door neighbour, Mrs Wilson, gallantly volunteered to help the female appellant to wash Fanny. She states: On 19 July Mrs Dobinson and I went to Fanny’s room in order to clean her up. When I went into the room there was not a strong smell until I moved her. Her nightdress was wet and messed with her own excreta and the dress had to be cut off. I saw her back was sore; I hadn’t seen anything like that before. I took the bedclothes off the bed. They were all wet through and messed. And so was the mattress. I was there for about two hours and Mrs Dobinson helped. She was raw, her back, shoulders, bottom and down below between her legs. Mrs Dobinson appeared to me to be upset because Fanny had never let her attend to her before. I advised Mrs Dobinson to go to the Social Services. 62 ACTUS REUS: THE EXTERNAL ELEMENTS OF AN OFFENCE Emily West, the licensee of the local public house, the Crossed Daggers, gave evidence to the effect that during the whole of the period, from 19 July onwards, the appellants came to the public house every night at about 7.00 pm. The appellant Dobinson was worried and told Emily West that Fanny would not wash, go to the toilet or eat or drink. As a result Emily West immediately advised Dobinson to get a doctor and when told that Fanny’s doctor lived at Doncaster, Emily West suggested getting a local one. It seems that some efforts were made to get a local doctor, but the neighbour who volunteered to do the telephoning (the appellants being incapable of managing the instrument themselves) was unsuccessful. On 2 August 1975 Fanny was found by Dobinson to be dead in her bed . . . The pathologist, Dr Usher, gave evidence that the deceased was naked, emaciated, weighing five stone and five pounds, her body ingrained with dirt, lying in a pool of excrement . . . He said that the cause of death was (1) toxaemia spreading from the infected pressure areas (this could have been alleviated by keeping her clean) and (2) prolonged immobilisation. . . . The Crown alleged that in the circumstances the appellants had undertaken the duty of caring for Fanny who was incapable of looking after herself, that they had, with gross negligence, failed in that duty, that such failure had caused her death and that they were guilty of manslaughter . . . There is no dispute, broadly speaking, as to the matters on which the jury must be satisfied before they can convict of manslaughter in circumstances such as the present. They are: (1) that the defendant undertook the care of a person who by reason of age or infirmity was unable to care for herself; (2) that the defendant was grossly negligent in regard to his duty of care; (3) that by reason of such negligence the person died. It is submitted on behalf of the appellants that the judge’s direction to the jury with regard to the first two items was incorrect. At the close of the Crown’s case submissions were made to the judge that there was no, or no sufficient, evidence that the appellants, or either of them, had chosen to undertake the care of Fanny. That contention was advanced by counsel for the appellant before this court as his first ground of appeal. He amplified the ground somewhat by submitting that the evidence which the judge had suggested to the jury might support the assumption of a duty by the appellants did not, when examined, succeed in doing so. He suggested that the situation here was unlike any reported case. Fanny came to this house as a lodger. Largely, if not entirely due to her own eccentricity and failure to look after herself or feed herself properly, she became increasingly infirm and immobile and eventually unable to look after herself. Is it to be said, asks counsel for the appellants rhetorically, that by the mere fact of becoming infirm and helpless in these circumstances, she casts a duty on her brother and Mrs Dobinson to take steps to have her looked after or taken to hospital? The suggestion is that, heartless though it may seem, this is one of those situations where the appellants were entitled to do nothing; where no duty was cast on them to help, any more than it is cast on a man to rescue a stranger from drowning, however easy such a rescue might be. This court rejects that proposition. Whether Fanny was a lodger or not she was a blood relation of the appellant Stone; she was occupying a room in his house; Mrs Dobinson had undertaken the duty of trying to wash her, of taking such food to her as she required. There was ample evidence that each appellant was aware of the poor condition she was in by mid-July. It was not disputed that no effort was made to summon an ambulance or the social services or the police despite the entreaties of Mrs Wilson and Mrs West. A social worker used to visit Cyril. No word was spoken to him. All these were matters which the jury were entitled to take into account when considering whether the necessary assumption of a duty to care for Fanny had been proved. 63 CASES AND MATERIALS ON CRIMINAL LAW This was not a situation analogous to the drowning stranger. They did make efforts to care. They tried to get a doctor; they tried to discover the previous doctor. Mrs Dobinson helped with the washing and the provision of food. All these matters were put before the jury in terms which we find it impossible to fault. The jury were entitled to find that the duty had been assumed. They were entitled to conclude that once Fanny became helplessly infirm, as she had by 19 July, the appellants were, in the circumstances, obliged either to summon help or else to care for Fanny themselves. 2.5.5 LIABILITY FOR OMISSION BASED ON ACCIDENTALLY CREATING A DANGEROUS SITUATION R v Miller [1983] 2 AC 161 (HL) The appellant, a homeless man, had spent an evening drinking. He returned to the unoccupied house where he had been sleeping at night. On the evening in question he lay on a mattress and lit a cigarette. He then fell asleep with the lighted cigarette in his hand. The cigarette came into contact with the mattress and set fire to it. The appellant woke up to find the mattress on fire, but instead of extinguishing the fire he got up and went into the next room and went back to sleep. Later that night the appellant was awoken again by the emergency services called to attend a fire at the house, the fire having spread from the burning mattress. The appellant was charged on indictment with the offence of ‘arson contrary to s 1(1) and (3) of the Criminal Damage Act 1971’; the particulars of offence were that he: . . . on a date unknown between 13 and 16 August 1980 without lawful excuse damaged by fire a house known as No 9, Grantham Road, Sparkbrook, intending to do damage to such property or recklessly as to whether such property would be damaged . . . The Court of Appeal . . . certified that the following question of law of general public importance was involved: Whether the actus reus of the offence of arson is present when a defendant accidentally starts a fire and thereafter, intending to destroy or damage property belonging to another or being reckless as to whether any such property would be destroyed or damaged, fails to take any steps to extinguish the fire or prevent damage to such property by that fire? Lord Diplock: My Lords . . . the question before your Lordships in this appeal is one that is confined to the true construction of the words used in particular provisions in a particular statute, viz s 1(1) and (3) of the Criminal Damage Act 1971 . . . These I now set out: (1) 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 . . . (3) an offence committed under this section by destroying or damaging property by fire shall be charged as arson. 64 ACTUS REUS: THE EXTERNAL ELEMENTS OF AN OFFENCE This definition of arson makes it a ‘result-crime’ . . . The crime is not complete unless and until the conduct of the accused has caused property belonging to another to be destroyed or damaged. . . . The first question to be answered where a completed crime of arson is charged is: ‘Did a physical act of the accused start the fire which spread and damaged property belonging to another (or did his act cause an existing fire, which he had not started but which would otherwise have burnt itself out harmlessly, to spread and damage property belonging to another)?’ I have added the words in brackets for completeness. They do not arise in the instant case; in cases where they do, the accused, for the purposes of the analysis which follows, may be regarded as having started a fresh fire. The first question is a pure question of causation; it is one of fact to be decided by the jury in a trial on indictment. It should be answered ‘No’ if, in relation to the fire during the period starting immediately before its ignition and ending with its extinction, the role of the accused was at no time more than that of a passive bystander. In such a case the subsequent questions to which I shall be turning would not arise. The conduct of the parabolical priest and Levite on the road to Jericho may have been indeed deplorable, but English law has not so far developed to the stage of treating it as criminal; and if it ever were to do so there would be difficulties in defining what should be the limits of the offence. If, on the other hand the question, which I now confine to: ‘Did a physical act of the accused start the fire which spread and damaged property belonging to another?’ is answered ‘Yes’, as it was by the jury in the instant case, then for the purpose of the further questions the answers to which are determinative of his guilt of the offence of arson, the conduct of the accused, throughout the period from immediately before the moment of ignition to the completion of the damage to the property by the fire, is relevant; so is his state of mind throughout that period. Since arson is a result-crime the period may be considerable, and during it the conduct of the accused that is causative of the result may consist not only of his doing physical acts which cause the fire to start or spread but also of his failing to take measures that lie within his power to counteract the danger that he has himself created. And if his conduct, active or passive, varies in the course of the period, so may his state of mind at the time of each piece of conduct. If at the time of any particular piece of conduct by the accused that is causative of the result, the state of mind that actuates his conduct falls within the description of one or other of the states of mind that are made a necessary ingredient of the offence of arson by s 1(1) of the Criminal Damage Act 1971 (ie intending to damage property belonging to another or being reckless as to whether such property would be damaged) I know of no principle of English criminal law that would prevent his being guilty of the offence created by that subsection. Likewise I see no rational ground for excluding from conduct capable of giving rise to criminal liability, conduct which consists of failing to take measures that lie within one’s power to counteract a danger that one has oneself created, if at the time of such conduct one’s state of mind is such as constitutes a necessary ingredient of the offence. I venture to think that the habit of lawyers to talk of actus reus, suggestive as it is of action rather than inaction, is responsible for any erroneous notion that failure to act cannot give rise to criminal liability in English law. No one has been bold enough to suggest that if, in the instant case, the accused had been aware at the time that he dropped the cigarette that it would probably set fire to his mattress and yet had taken no steps to extinguish it he would not have been guilty of the offence of arson, since he would have damaged property of another being reckless whether any such property would be damaged. I cannot see any good reason why, so far as liability under criminal law is concerned, it should 65 CASES AND MATERIALS ON CRIMINAL LAW matter at what point of time before the resultant damage is complete a person becomes aware that he has done a physical act which, whether or not he appreciated that it would at the time when he did it, does in fact create a risk that property of another will be damaged; provided that, at the moment of awareness, it lies within his power to take steps, either himself or by calling for the assistance of the fire brigade if this be necessary, to prevent or minimise the damage to the property at risk. Let me take first the case of the person who has thrown away a lighted cigarette expecting it to go out harmlessly, but later becomes aware that, although he did not intend it to do so, it has, in the event, caused some inflammable material to smoulder and that unless the smouldering is extinguished promptly, an act that the person who dropped the cigarette could perform without danger to himself or difficulty, the inflammable material will be likely to burst into flames and damage some other person’s property. The person who dropped the cigarette deliberately refrains from doing anything to extinguish the smouldering. His reason for so refraining is that he intends that the risk which his own act had originally created, though it was only subsequently that he became aware of this, should fructify in actual damage to that other person’s property; and what he so intends, in fact occurs. There can be no sensible reason why he should not be guilty of arson. If he would be guilty of arson, having appreciated the risk of damage at the very moment of dropping the lighted cigarette, it would be quite irrational that he should not be guilty if he first appreciated the risk at some later point in time but when it was still possible for him to take steps to prevent or minimise the damage. . . . My Lords, just as in the first example that I took the fact that the accused’s intent to damage the property of another was not formed until, as a result of his initial act in dropping the cigarette, events had occurred which presented a risk that another person’s property would be damaged, ought not under any sensible system of law to absolve him from criminal liability, so too in a case where the relevant state of mind is not intent but recklessness I see no reason in common sense and justice why, mutatis mutandis, a similar principle should not apply to impose criminal liability on him. If in the former case he is criminally liable because he refrains from taking steps that are open to him to try to prevent or minimise the damage caused by the risk he has himself created and he so refrains because he intends such damage to occur, so in the latter case, when, as a result of his own initial act in dropping the cigarette, events have occurred which [he realises create a risk of damage to another’s property] . . . he should likewise be criminally liable if he refrains from taking steps that lie within his power to try and prevent the damage caused by the risk that he himself has created, and so refrains either because . . . he has recognised that there was some risk involved, he has nonetheless decided to take that risk. My Lords, in the instant case the prosecution did not rely on the state of mind of the accused as being reckless during that part of his conduct that consisted of his lighting and smoking a cigarette while lying on his mattress and falling asleep without extinguishing it. So the jury were not invited to make any finding as to this. What the prosecution did rely on as being reckless was his state of mind during that part of his conduct after he awoke to find that he had set his mattress on fire and that it was smouldering, but did not then take any steps either to try to extinguish it himself or to send for the fire brigade, but simply went into the other room to resume his slumbers, leaving the fire from the already smouldering mattress to spread and to damage that part of the house in which the mattress was. The recorder, in his lucid summing-up to the jury (they took 22 minutes only to reach their verdict), told them that the accused, having by his own act started a fire in the mattress which, when he became aware of its existence, presented an obvious risk of damaging the house, 66 ACTUS REUS: THE EXTERNAL ELEMENTS OF AN OFFENCE became under a duty to take some action to put it out. The Court of Appeal upheld the conviction, but its ratio decidendi appears to be somewhat different from that of the recorder. As I understand the judgment, in effect it treats the whole course of conduct of the accused, from the moment at which he fell asleep and dropped the cigarette onto the mattress until the time the damage to the house by fire was complete, as a continuous act of the accused, and holds that it is sufficient to constitute the statutory offence of arson if at any stage in that course of conduct the state of mind of the accused, when he fails to try to prevent or minimise the damage which will result from his initial act, although it lies within his power to do so, is that of being reckless whether property belonging to another would be damaged. My Lords, these alternative ways of analysing the legal theory that justifies a decision which has received nothing but commendation for its accord with common sense and justice have, since the publication of the judgment of the Court of Appeal in the instant case, provoked academic controversy. Each theory has distinguished support. Professor JC Smith espouses the ‘duty theory’ (see [1982] Crim LR 526 at 528); Professor Glanville Williams who, after the decision of the Divisional Court in Fagan v Metropolitan Police Comr [1969] 1 QB 439 appears to have been attracted by the duty theory, now prefers that of the continuous act (see [1992] Crim LR 773). When applied to cases where a person has unknowingly done an act which sets in train events that, when he becomes aware of them, present an obvious risk that property belonging to another will be damaged, both theories lead to an identical result; and, since what your Lordships are concerned with is to give guidance to trial judges in their task of summing-up to juries, I would for this purpose adopt the duty theory as being the easier to explain to a jury; though I would commend the use of the word ‘responsibility’, rather than ‘duty’ which is more appropriate to civil than to criminal law since it suggests an obligation owed to another person, i.e. the person to whom the endangered property belongs, whereas a criminal statute defines combinations of conduct and state of mind which render a person liable to punishment by the state itself. . . . where the accused is initially unaware that he has done an act that in fact sets in train events which . . . present a risk that property belonging to another would be damaged, a suitable direction to the jury would be: that the accused is guilty of the offence under s 1(1) of the Criminal Damage Act 1971 if, when he does become aware that the events in question have happened as a result of his own act, he does not try to prevent or reduce the risk of damage by his own efforts or if necessary by sending for help from the fire brigade and the reason why he does not is . . . because . . . he has . . . recognised that there was some risk involved [and] he has decided not to try to prevent or reduce it. Lord Keith of Kinkel, Lord Bridge of Harwich, Lord Brandon of Oakwood and Lord Brightman all agreed with Lord Diplock. 2.5.6 WHERE THE DEFENDANT IS ABSOLVED FROM ANY DUTY TO ACT Airedale National Health Service Trust v Bland [1993] 1 All ER 82 (HL) Anthony Bland was injured in the Hillsborough Stadium disaster. He suffered irreversible brain damage and was diagnosed as being in a persistent vegetative state (PVS). Expert 67 CASES AND MATERIALS ON CRIMINAL LAW medical evidence was to the effect that there was no hope of recovery. The Airedale NHS Trust, with the support of Bland’s parents, sought a declaration that the doctors treating Bland might lawfully discontinue all life-sustaining treatment and medical treatment except that required to enable Bland to die without unnecessary distress. The Official Solicitor appealed to the House of Lords against the granting of the declaration on the basis that the withdrawal of life-support treatment would amount to murder. Lord Goff: I agree that the doctor’s conduct in discontinuing life support can properly be categorised as an omission. It is true that it may be difficult to describe what the doctor actually does as an omission, for example where he takes some positive step to bring the life support to an end. But discontinuation of life support is, for present purposes, no different from not initiating life support in the first place. In each case, the doctor is simply allowing his patient to die in the sense that he is desisting from taking a step which might, in certain circumstances, prevent his patient from dying as a result of his pre-existing condition: and as a matter of general principle an omission such as this will not be unlawful unless it constitutes a breach of duty to the patient. I also agree that the doctor’s conduct is to be differentiated from that of, for example, an interloper who maliciously switches off a life-support machine because, although the interloper may perform exactly the same act as the doctor who discontinues life support, his doing so constitutes interference with the life-prolonging treatment then being administered by the doctor. Accordingly, whereas the doctor, in discontinuing life support, is simply allowing his patient to die of his preexisting condition, the interloper is actively intervening to stop the doctor from prolonging the patient’s life, and such conduct cannot possibly be categorised as an omission . . . If the justification for treating a patient who lacks the capacity to consent lies in the fact that the treatment is provided in his best interests, it must follow that the treatment may, and indeed ultimately should, be discontinued where it is no longer in his best interests to provide it. The question which lies at the heart of the present case is, as I see it, whether on that principle the doctors responsible for the treatment and care of Anthony Bland can justifiably discontinue the process of artificial feeding upon which the prolongation of his life depends. It is crucial for the understanding of this question that the question itself should be correctly formulated. The question is not whether the doctor should take a course which will kill his patient, or even take a course which has the effect of accelerating his death. The question is whether the doctor should or should not continue to provide his patient with medical treatment or care which, if continued, will prolong his patient’s life. The question is sometimes put in striking or emotional terms, which can be misleading. For example, in the case of a life-support system, it is sometimes asked: should a doctor be entitled to switch it off, or to pull the plug? And then it is asked: can it be in the best interests of the patient that a doctor should be able to switch the life-support system off, when this will inevitably result in the patient’s death? Such an approach has rightly been criticised as misleading . . . This is because the question is not whether it is in the best interests of the patient that he should die. The question is whether it is in the best interests of the patient that his life should be prolonged by the continuance of this form of medical treatment or care. The correct formulation of the question is of particular importance in a case such as the present, where the patient is totally unconscious and where there is no hope whatsoever of any amelioration of his condition. In circumstances such as these, it may be difficult to say that it is in his best interests that the treatment should be ended. But, if the question is asked, as in my opinion it should be, whether it is in his best interests that treatment which has the effect of 68 ACTUS REUS: THE EXTERNAL ELEMENTS OF AN OFFENCE artificially prolonging his life should be continued, that question can sensibly be answered to the effect that it is not in his best interests to do so. Lord Mustill: I turn to an argument which in my judgment is logically defensible and consistent with the existing law. In essence it turns the previous argument on its head by directing the inquiry to the interests of the patient, not in the termination of life but in the continuation of his treatment. It runs as follows. (i) The cessation of nourishment and hydration is an omission not an act. (ii) Accordingly, the cessation will not be a criminal act unless the doctors are under a present duty to continue the regime. (iii) At the time when Anthony Bland came into the care of the doctors decisions had to be made about his care which he was unable to make for himself . . . Since the possibility that he might recover still existed his best interests required that he should be supported in the hope that this would happen. These best interests justified the application of the necessary regime without his consent. (iv) All hope of recovery has now been abandoned. Thus, although the termination of his life is not in the best interests of Anthony Bland, his best interests in being kept alive have also disappeared, taking with them the justification for the non-consensual regime and the correlative duty to keep it in being. (v) Since there is no longer a duty to provide nourishment and hydration a failure to do so cannot be a criminal offence. My Lords, I must recognise at once that this chain of reasoning makes an unpromising start by transferring the morally and intellectually dubious distinction between acts and omissions into a context where the ethical foundations of the law are already open to question. The opportunity for anomaly and excessively fine distinctions, often depending more on the way in which the problem happens to be stated than on any real distinguishing features, has been exposed by many commentators . . . All this being granted, we are still forced to take the law as we find it and try to make it work. Moreover, although in cases near the borderline the categorisation of conduct will be exceedingly hard, I believe that nearer the periphery there will be many instances which fall quite clearly into one category rather than the other . . . I therefore consider the argument to be soundly based. Now that the time has come when Anthony Bland has no further interest in being kept alive, the necessity to do so, created by his inability to make a choice, has gone; and the justification for the invasive care and treatment together with the duty to provide it have also gone. Absent a duty, the omission to perform what had previously been a duty will no longer be a breach of the criminal law. Lord Keith, Lord Lowry and Lord Browne-Wilkinson all concurred that the appeal should be dismissed. COMMENTS AND QUESTIONS 1 In R v Stone and Dobinson (above) Fanny gave Edward £1.50 per week from her pension as a contribution towards the rent. Could his liability have been based on a breach of contract? 2 Compare the position of Dobinson in this case with Proctor in R v Gibbins and Proctor (above). Are their roles morally indistinguishable? 3 What if Stone and Dobinson had simply refused to let Fanny into their house? Suppose she had died living ‘rough’. What would their liability have been? 69 CASES AND MATERIALS ON CRIMINAL LAW 4 In R v Smith [1979] Crim LR 251 (Birmingham Crown Court) D’s wife was ill but she did not want him to call a doctor. Her condition worsened and D did eventually call for medical assistance, but by this time it was too late and his wife died of puerperal fever before the doctor arrived. Medical evidence was that she could have been saved had a doctor been called earlier. D was charged with the manslaughter of his wife. The jury could not agree on the charge of manslaughter and were discharged from giving a verdict. To what extent did the court in Smith proceed on the basis that D was under no duty to summon assistance for his wife provided she was capable of making a rational decision regarding medical treatment for herself? Does this mean that the duty arises once she ceases to be capable of rational judgment? If, by that point, she has suffered irreparable harm in the sense that medical treatment will not avail her, and D fails to summon help, can it be said that his omission is the cause of her death? 5 The common law duty to limit the effect of harm accidentally caused, expounded in R v Miller (above), was relied upon in DPP v Santana-Bermudez [2003] All ER (D) 168 (Nov) to secure a conviction for actual bodily harm. The defendant was searched by a woman police constable (‘WPC’). Prior to the search she specifically asked the defendant whether or not he was in possession of any needles or ‘sharps’ to which he answered that he was not. The WPC then put her hand into the defendant’s pocket to search further and her finger was pierced by a hypodermic needle in the defendant’s pocket. The Court of Appeal adopted the view that by informing the WPC that he was not in possession of any sharp items or needles, the defendant had effectively tricked her into injuring herself. The court applied R v Miller [1983] 1 All ER 978 on the basis that the defendant had created a dangerous situation and had then come under a duty to limit the effect of the harm caused. This he had failed to do by not telling the truth to the WPC. As an alternative basis for liability, could it be argued that the defendant’s assurances that he had no sharp objects in his pocket be said to give rise to a relationship of reliance between him and the WPC? 2.5.7 CODIFICATION AND LAW REFORM PROPOSALS The Criminal Code team’s draft Code of 1985 did contain a codification of the law relating to criminal liability for omissions, but these provisions were eventually excluded from the Law Commission’s draft Code Bill published in 1989. Clause 17 of the 1989 Bill does, however, make clear that results may be caused by omission. As the commentary to the Bill explains: The . . . Bill therefore defines homicide offences in terms of causing death rather than of killing; and other offences against the person similarly require the causing of relevant harms. It seems to us to be desirable to draft some other offences at least (most obviously, offences of damage to property) in the same way, in order to leave fully open to the courts the possibility of so construing the relevant (statutory) provisions as to impose liability for omissions. For to prefer ‘cause death’ to ‘kill’ while retaining ‘destroy or damage property’ might be taken to imply an intention to exclude all liability for omissions in the latter case [Vol II, para 7.13]. In its report Legislating the Criminal Code (Law Com 218), the Law Commission extended this approach to its proposals for a number of non-fatal offences against the person, clause 19(1) of the Bill contained in that report stating that: 70 ACTUS REUS: THE EXTERNAL ELEMENTS OF AN OFFENCE An offence to which this section applies may be committed by a person who, with the result specified for the offence, omits to do an act that he is under a duty to do at common law. Where this section applies to an offence a person may commit an offence if, with the result specified for the offence, he omits to do an act that he is under a duty to do at common law; and accordingly references to acts include references to omissions. The issue of whether or not a duty arose would remain to be determined by the common law. The Miller principle is codified with some amendments by clause 31 of the Draft Criminal Law Bill as follows: Where it is an offence to be at fault in causing a result, a person who lacks the fault required when he does an act that may cause, or does cause, the result, he nevertheless commits the offence if being aware that he has done the act and that the result may occur or, as the case may be, has occurred and may continue, and with the fault required, he fails to take reasonable steps to prevent the result occurring or continuing and it does occur or continue. The commentary on this provision indicates that D would be under a duty to take measures that lie within his power to counteract the danger he has inadvertently created – see Law Com 218, para 41.3. The Home Office draft Offences Against the Person Bill also contains a similar measure in clause 16 as regards the commission of the offences provided for in that Bill. FURTHER READING Ashworth, A, ‘The scope of criminal liability for omission’ (1989) 105 LQR 424 Buxton, R, ‘The Human Rights Act and the substantive criminal law’ [2000] Crim LR 331 Smart, A, ‘Criminal responsibility for failing to do the impossible’ (1987) 103 LQR 532 Smith, ATH, ‘The Human Rights Act 1998 – (1) The Human Rights Act and the criminal lawyer: the constitutional context’ [1999] Crim LR 251 Williams, G, ‘What should the Code do about omissions?’ (1987) 7 Legal Studies 92 Williams, G, ‘Criminal omissions – the conventional view’ (1991) 107 LQR 86 71 CHAPTER 3 MENS REA: THE MENTAL ELEMENT CONTENTS 3.1 3.2 3.3 3.4 3.5 3.6 3.7 3.8 3.9 Introduction Mens rea: intention – the background to the current law Mens rea – recklessness The significance of mistake Children and proof of mens rea Coincidence of actus reus and mens rea Transferred malice Strict liability Corporate bodies and proof of mens rea 72 72 83 91 96 98 102 110 132 3.1 INTRODUCTION The term mens rea (or fault element, as it is sometimes referred to) refers to the state of mind of the accused at the time of the commission of the actus reus of an offence. The traditional maxim is ‘actus non facit reum nisi mens sit rea’: the act is not guilty unless the mind is also guilty. The only offences for which this is not a requirement are offences of ‘strict liability’ (as to which, see 3.8, below). This chapter examines the general principles of mens rea. The mens rea required for specific offences is dealt with as appropriate in subsequent chapters. Certain defences effectively involve a denial of mens rea, for example where the defendant raises issues such as insanity, diminished responsibility, intoxication or mistake. These too are dealt with in separate chapters. 3.2 MENS REA: INTENTION – THE BACKGROUND TO THE CURRENT LAW For a range of offences, both statutory and common law, intention on the part of the defendant is the fault element that has to be established by the prosecution. As the following material MENS REA: THE MENTAL ELEMENT demonstrates, defining intention has proved to be a difficult task – one that has occupied the House of Lords on at least five occasions since 1975. In simple terms there are two types of intent. The first requires proof of purpose, that is, that it was the defendant’s purpose to bring about a prohibited consequence. The second is based on evidence indicating the extent to which the defendant foresaw the prohibited consequence as resulting from his act or omission. In DPP v Smith [1961] AC 290 the House of Lords held that a defendant could be presumed to have foreseen the natural and probable consequences of his actions (that is, if a reasonable person would have foreseen the result then it could be presumed that the defendant had). The effect of Smith was reversed by s 8 of the Criminal Justice Act 1967 which provides: A court or jury, in determining whether a person has committed an offence: (a) shall not be bound in law to infer that he intended or foresaw a result of his actions by reason only of its being a natural and probable consequence of those actions; but (b) shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances. As a result of s 8 a jury cannot conclude that the defendant must have foreseen a consequence simply because it was the natural and probable consequence of his act or omission. The fact that something is the natural and probable consequence of the defendant’s act or omission is, however, evidence from which it may be inferred that the defendant intended that result to occur. One of the major difficulties facing the House of Lords in this regard has been determining the degree of foresight that could be equated with intention. In R v Moloney [1985] 1 AC 905, Lord Bridge of Harwich, whilst emphasising that foresight of consequences, as an element bearing on the issue of intention, belonged not to the substantive law but to the law of evidence, expressed the view that: In the rare cases [of murder trials] in which it is necessary to direct a jury by reference to foresight of consequences, I do not believe it is necessary for the judge to do more than invite the jury to consider two questions. First, was death or really serious injury in a murder case (or whatever relevant consequence must be proved to have been intended in any other case) a natural consequence of the defendant’s voluntary act? Second, did the defendant foresee that consequence as being a natural consequence of his act? The jury should then be told that if they answer yes to both questions it is a proper inference for them to draw that he intended that consequence . . . The difficulty with this was the use of the phrase ‘natural consequence’. At best it might leave juries uncertain; at worst it might lead juries to think that evidence that a consequence was foreseen as more likely than not was a sufficient basis for inferring intent. The House of Lords returned to the issue in R v Hancock and Shankland [1986] 1 AC 455, the notorious case of the striking miners dropping a concrete block onto a motorway in order to scare off those miners continuing to work during the strike. As a result of their actions a taxi-driver taking some miners to their jobs was killed. In the course of his speech Lord Scarman observed: 73 CASES AND MATERIALS ON CRIMINAL LAW In my judgment . . . the Moloney guidelines as they stand are unsafe and misleading. They require a reference to probability. They also require an explanation that the greater the probability of a consequence the more likely it is that the consequence was foreseen and that if that consequence was foreseen the greater the probability is that that consequence was also intended. But juries also require to be reminded that the decision is theirs to be reached upon a consideration of all the evidence. Even this approach still left juries with an apparently wide discretion as regards the proper basis from which to infer whether or not a defendant who had foreseen the consequences of his actions could properly be regarded as having intended them. It fell to the Court of Appeal, in R v Nedrick [1986] 1 WLR 1025, to attempt a greater degree of particularisation. Lord Lane CJ offered the following: We have endeavoured to crystallise the effect of their Lordships’ speeches in R v Moloney and R v Hancock in a way which we hope may be helpful to judges who have to handle this type of case . . . When determining whether the defendant had the necessary intent, it may therefore be helpful for a jury to ask themselves two questions: (1) How probable was the consequence which resulted from the defendant’s voluntary act? (2) Did he foresee that consequence? If he did not appreciate that death or serious harm was likely to result from his act, he cannot have intended to bring it about. If he did, but thought that the risk to which he was exposing the person killed was only slight, then it may be easy for the jury to conclude that he did not intend to bring about that result. On the other hand, if the jury are satisfied that at the material time the defendant recognised that death or serious harm would be virtually certain (barring some unforeseen intervention) to result from his voluntary act, then that is a fact from which they may find it easy to infer that he intended to kill or do serious bodily harm, even though he may not have had any desire to achieve that result. Where the charge is murder and in the rare cases where the simple direction is not enough, the jury should be directed that they are not entitled to infer the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant’s actions and that the defendant appreciated that such was the case. Where a man realises that it is for all practical purposes inevitable that his actions will result in death or serious harm, the inference may be irresistible that he intended that result, however little he may have desired or wished it to happen.The decision is one for the jury to be reached upon a consideration of all the evidence. 74 MENS REA: THE MENTAL ELEMENT 3.2.1 MENS REA – INTENTION: THE LEADING AUTHORITY R v Woollin [1999] 1 AC 82 (HL) Lord Steyn: The case in a nutshell The appellant lost his temper and threw his three month old son on to a hard surface. His son sustained a fractured skull and died. The appellant was charged with murder. The Crown did not contend that the appellant desired to kill his son or to cause him serious injury. The issue was whether the appellant nevertheless had the intention to cause serious harm.The appellant denied that he had any such intention. Subject to one qualification, the Recorder of Leeds summed up in accordance with the guidance given by Lord Lane, CJ in Nedrick . . . But towards the end of his summing-up the judge directed the jury that if they were satisfied that the appellant – must have realised and appreciated when he threw that child that there was a substantial risk that he would cause serious injury to it, then it would be open to you to find that he intended to cause injury to the child and you should convict him of murder. The jury found that the appellant had the necessary intention; they rejected a defence of provocation; and they convicted the appellant of murder . . . The Court of Appeal certified the following questions as of general importance: 1 2 In murder, where there is no direct evidence that the purpose of a defendant was to kill or to inflict serious injury on the victim, is it necessary to direct the jury that they may only infer an intent to do serious injury, if they are satisfied: (a) that serious bodily harm was a virtually certain consequence of the defendant’s voluntary act, and (b) that the defendant appreciated that fact? If the answer to question 1 is ‘yes,’ is such a direction necessary in all cases or is it only necessary in cases where the sole evidence of the defendant’s intention is to be found in his actions and their consequence to the victim? On appeal to your Lordships’ House the terrain of the debate covered the correctness in law of the direction recommended by Lord Lane CJ in Nedrick and, if that direction is sound, whether it should be used only in the limited category of cases envisaged by the Court of Appeal. And counsel for the appellant renewed his submission that by directing the jury in terms of substantial risk the judge illegitimately widened the mental element of murder. The directions of the judge on the mental element . . . it is necessary to set out the judge’s relevant directions of law with a brief explanation of the context and implications. The judge reminded the jury that the Crown did not allege an intention to kill. He accordingly concentrated on intention to do really serious bodily harm. He further reminded the jury that the Crown accepted that the defendant did not want to cause the child serious injuries.The judge then directed the jury as follows: In looking at this, you should ask yourselves two questions and I am going to suggest that you write them down. First of all, how probable was the consequence which resulted from his throw, the consequence being, as you know, serious injury? How probable was the consequence of serious injury which resulted from his throw? Secondly, did he foresee that consequence in the second before or at the time of 75 CASES AND MATERIALS ON CRIMINAL LAW throwing? The second question is of particular importance, members of the jury, because he could not have intended serious harm could he, if he did not foresee the consequence and did not appreciate at the time that serious harm might result from his throw? If he thought, or may have thought, that in throwing the child he was exposing him to only the slight risk of being injured, then you would probably readily conclude that he did not intend to cause serious injury, because it was outside his contemplation that he would be seriously injured. But the defence say here that he never thought about the consequence at all when he threw the child. He did not give it a moment’s thought. Again, if that is right, or may be right, you may readily conclude that he did not appreciate that serious harm would result. It follows from that, if that is how you find, that you cannot infer that he intended to do Karl really serious harm unless you are sure that serious harm was a virtual certainty from what he was doing and he appreciated that that was the case. So, members of the jury, that is how you should approach this question – and it is a vital question in the case. Are we sure that the prosecution have established that the defendant intended to cause Karl serious harm at the time that he threw him? (My emphasis added.) The first two questions identified by the judge appear in Lord Lane’s guidance in Nedrick . . . The [emphasised] passage is a classic direction in accordance with Nedrick . . . After an overnight adjournment the judge continued his summing up. He returned to the mental element which had to be established in order to find the appellant guilty of murder. On this occasion the judge did not use the Nedrick direction. Instead the judge directed the jury as follows: If you think that he had not given any thought to the consequences of what he was doing before he did it, then the Crown would have failed to prove the necessary intent, the intent to cause really serious harm, for murder and you should acquit him of murder and convict him of manslaughter. If, on the other hand, you reject that interpretation and are quite satisfied that he was aware of what he was doing and must have realised and appreciated when he threw that child that there was a substantial risk that he would cause serious injury to it, then it would be open to you to find that he intended to cause injury to the child and you should convict him of murder. It is plain, and the Crown accepts, that a direction posing an issue as to appreciation of a ‘substantial risk’ of causing serious injury is wider than a direction framed in terms of appreciation of a ‘virtual certainty (barring some unforeseen intervention)’. If Lord Lane correctly stated the law in Nedrick, the judge’s direction in terms of substantial risk was wrong. But the Crown argued . . . that Nedrick was wrongly decided or, alternatively, that the principle as enunciated by Lord Lane does not apply to the present case. The premises of the appeal The first premise of any examination of the issues raised by this appeal is that it is at present settled law that a defendant may be convicted of murder if it is established (1) that he had an intent to kill or (2) that he had an intent to cause really serious bodily injury: R v Cunningham [1982] AC 566. In regard to (2) the intent does not correspond to the harm which resulted, ie, the causing of death. It is a species of constructive crime . . . Secondly, I approach the issues arising on this appeal on the basis that it does not follow that ‘intent’ necessarily has precisely the same meaning in every context in the criminal law. The focus of the present appeal is the crime of murder. The problem facing the Court of Appeal in Nedrick In Hancock Lord Scarman did not express disagreement with the test of foresight of a probability which is ‘little short of overwhelming’ as enunciated in Moloney. Lord Scarman also did not 76 MENS REA: THE MENTAL ELEMENT express disagreement with the law underlying Lord Lane’s model direction in Hancock which was based on a defendant having ‘appreciated that what he did was highly likely to cause death or really serious bodily injury’. Lord Scarman merely said that model directions were generally undesirable. Moreover, Lord Scarman thought that where explanation is required the jury should be directed as to the relevance of probability without expressly stating the matter in terms of any particular level of probability. The manner in which trial judges were to direct juries was left unclear. Moreover, in practice juries sometimes ask probing questions which cannot easily be ignored by trial judges. For example, imagine that in a case such as Hancock the jury sent a note to the judge to the following effect: We are satisfied that the defendant, though he did not want to cause serious harm, knew that it was probable that his act would cause serious bodily harm. We are not sure whether a probability is enough for murder. Please explain. One may alter the question by substituting ‘highly probable’ for ‘probable’. Or one may imagine the jury asking whether a foresight of a ‘substantial risk’ that the defendant’s act would cause serious injury was enough. What is the judge to say to the jury? Hancock does not rule out an answer by the judge but it certainly does not explain how such questions are to be answered. It is well known that judges were sometimes advised to deflect such questions by the statement that ‘intention’ is an ordinary word in the English language. That is surely an unhelpful response to what may be a sensible question. In these circumstances it is not altogether surprising that in Nedrick the Court of Appeal felt compelled to provide a model direction for the assistance of trial judges . . . The direct attack on Nedrick It is now possible to consider the Crown’s direct challenge to the correctness of Nedrick. First, the Crown argued that Nedrick prevents the jury from considering all the evidence in the case relevant to intention. The argument is that this is contrary to the provisions of s 8 of the Criminal Justice Act 1967 [set out above] . . . Paragraph (a) [of s 8] is an instruction to the judge and is not relevant to the issues on this appeal. The Crown’s argument relied on paragraph (b) which is concerned with the function of the jury. It is no more than a legislative instruction that in considering their findings on intention or foresight the jury must take into account all relevant evidence . . . Nedrick does not prevent a jury from considering all the evidence: it merely stated what state of mind (in the absence of a purpose to kill or to cause serious harm) is sufficient for murder. I would therefore reject the Crown’s first argument. In the second place the Crown submitted that Nedrick is in conflict with the decision of the House in Hancock. Counsel argued that in order ‘to bring some coherence to the process of determining intention Lord Lane specified a minimum level of foresight, namely virtual certainty’. But that is not in conflict with the decision in Hancock which, apart from disapproving Lord Bridge’s ‘natural consequence’ model direction, approved Moloney in all other respects. And in Moloney Lord Bridge said that if a person foresees the probability of a consequence as little short of overwhelming, this ‘will suffice to establish the necessary intent’. Nor did the House in Hancock rule out the framing of model directions by the Court of Appeal for the assistance of trial judges. I would therefore reject the argument that the guidance given in Nedrick was in conflict with the decision of the House in Hancock. The Crown did not argue that as a matter of policy foresight of a virtual certainty is too narrow a test in murder. Subject to minor qualifications, the decision in Nedrick was widely welcomed by 77 CASES AND MATERIALS ON CRIMINAL LAW distinguished academic writers . . . It is also of interest that it is very similar to the threshold of being aware ‘that it will occur in the ordinary course of events’ in the Law Commission’s draft Criminal Code . . . Moreover, over a period of twelve years since Nedrick the test of foresight of virtual certainty has apparently caused no practical difficulties. It is simple and clear. It is true that it may exclude a conviction of murder in the often cited terrorist example where a member of the bomb disposal team is killed. In such a case it may realistically be said that the terrorist did not foresee the killing of a member of the bomb disposal team as a virtual certainty. That may be a consequence of not framing the principle in terms of risk taking. Such cases ought to cause no substantial difficulty since immediately below murder there is available a verdict of manslaughter which may attract in the discretion of the court a life sentence. In any event, as Lord Lane eloquently argued in a debate in the House of Lords, to frame a principle for particular difficulties regarding terrorism ‘would produce corresponding injustices which would be very hard to eradicate’: Hansard (HL Debates), 6 November 1989, col 480. I am satisfied that the Nedrick test, which was squarely based on the decision of the House in Moloney, is pitched at the right level of foresight. The argument that Nedrick has limited application The Court of Appeal held that the phrase ‘a virtual certainty’ should be confined to cases where the evidence of intent is limited to admitted actions of the accused and the consequences of those actions. It is not obligatory where there is other evidence to consider. The Crown’s alternative submission on the appeal was to the same effect. This distinction would introduce yet another complication into a branch of the criminal law where simplicity is of supreme importance. The distinction is dependent on the vagaries of the evidence in particular cases. Moreover, a jury may reject the other evidence to which the Court of Appeal refers. And in preparing his summingup a judge could not ignore this possibility. If the Court of Appeal’s view is right, it might compel a judge to pose different tests depending on what evidence the jury accepts. For my part, and with the greatest respect, I have to say that this distinction would be likely to produce great practical difficulties. But, most importantly, the distinction is not based on any principled view regarding the mental element in murder. Contrary to the view of the Court of Appeal, I would also hold that s 8(b) of the Act of 1967 does not compel such a result. In my view the ruling of the Court of Appeal was wrong. It may be appropriate to give a direction in accordance with Nedrick in any case in which the defendant may not have desired the result of his act. But I accept the trial judge is best placed to decide what direction is required by the circumstances of the case. The disposal of the present appeal It follows that the judge should not have departed from the Nedrick direction. By using the phrase ‘substantial risk’ the judge blurred the line between intention and recklessness, and hence between murder and manslaughter. The misdirection enlarged the scope of the mental element required for murder. It was a material misdirection. At one stage it was argued that the earlier correct direction ‘cured’ the subsequent incorrect direction. A misdirection cannot by any means always be cured by the fact that the judge at an earlier or later stage gave a correct direction. After all, how is a jury to choose between a correct and an incorrect direction on a point of law? If a misdirection is to be corrected, it must be done in the plainest terms . . . That is, however, not the end of the matter. For my part, I have given anxious consideration to the observation of the Court of Appeal that, if the judge had used the phrase ‘a virtual certainty’, the verdict would have been the same. In this case there was no suggestion of any other ill-treatment of the child. It would also be putting matters too high to say that on the evidence 78 MENS REA: THE MENTAL ELEMENT before the jury it was an open-and-shut case of murder rather than manslaughter. In my view the conviction of murder is unsafe. The conviction of murder must be quashed. The status of Nedrick In my view Lord Lane’s judgment in Nedrick provided valuable assistance to trial judges.The model direction is by now a tried-and-tested formula. Trial judges ought to continue to use it. On matters of detail I have three observations, which can best be understood if I set out again the relevant part of Lord Lane’s judgment. It was as follows: (A) When determining whether the defendant had the necessary intent, it may therefore be helpful for a jury to ask themselves two questions. (1) How probable was the consequence which resulted from the defendant’s voluntary act? (2) Did he foresee that consequence? If he did not appreciate that death or serious harm was likely to result from his act, he cannot have intended to bring it about. If he did, but thought that the risk to which he was exposing the person killed was only slight, then it may be easy for the jury to conclude that he did not intend to bring about that result. On the other hand, if the jury are satisfied that at the material time the defendant recognised that death or serious harm would be virtually certain (barring some unforeseen intervention) to result from his voluntary act, then that is a fact from which they may find it easy to infer that he intended to kill or do serious bodily harm, even though he may not have had any desire to achieve that result. (B) Where the charge is murder and in the rare cases where the simple direction is not enough, the jury should be directed that they are not entitled to infer the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant’s actions and that the defendant appreciated that such was the case. (C) Where a man realises that it is for all practical purposes inevitable that his actions will result in death or serious harm, the inference may be irresistible that he intended that result, however little he may have desired or wished it to happen.The decision is one for the jury to be reached upon a consideration of all the evidence. (Lettering added.) First, I am persuaded by the speech of my noble and learned friend, Lord Hope of Craighead, that it is unlikely, if ever, to be helpful to direct the jury in terms of the two questions set out in (A). I agree that these questions may detract from the clarity of the critical direction in (B). Secondly, in their writings previously cited Glanville Williams, JC Smith and Andrew Ashworth observed that the use of the words ‘to infer’ in (B) may detract from the clarity of the model direction. I agree. I would substitute the words ‘to find’. Thirdly, the first sentence of (C) does not form part of the model direction. But it would always be right for the judge to say, as Lord Lane put it, that the decision is for the jury upon a consideration of all the evidence in the case. The certified questions Given my conclusions the certified questions fall away. R v Matthews; R v Alleyne [2003] 2 Cr App R 30 The defendants took the victim to a bridge over the River Ouse and threw him into the water. The victim could not swim and drowned as a result. The defendants were charged with murder. When directing the jury on the issue of intent, the trial judge stated: 79 CASES AND MATERIALS ON CRIMINAL LAW With regard to intention to kill the prosecution will only succeed in proving . . . intent either: (i) by making you sure that this specific intention was actually in the mind/s of the defendants; or (ii) (a) by making you sure that [the deceased’s death] was a virtual certainty (barring some attempt to save him), and (b) the defendant . . . had appreciated at the time that [the deceased] was thrown off the bridge that that was the case, and he then had no intentions of saving him, and knew or realised that the others did not intend to save him either. The defendants were convicted and appealed against their convictions on the grounds that the trial judge had misdirected the jury on the issue of intent. Rix LJ [Having referred to the trial judge’s direction on intention]: The classic form of that direction, repeated in the JSB model direction, is as follows: Where the charge is murder and in the rare cases where the simple direction is not enough, the jury should be directed that they are not entitled to find the necessary intention, unless they feel sure that death [or serious bodily harm] was a virtual certainty (barring some unforeseen intervention) as a result of the defendant’s actions and that the defendant appreciated that such was the case. ... [24] We have emphasised the word find in that direction, because the original direction of Lord Lane CJ in Nedrick [1986] 3 All ER 2, [1986] 1 WLR 1025 contained the word ‘infer’. The only change made by the House of Lords in Woollin [1999] AC 82, [1998] 4 All ER 103, was to substitute find for infer (see Lord Steyn at 96H of the former report and Lord Hope of Craighead at 97D of the former report). ... [39] Mr Coker for the Crown on this appeal submits that in Woollin the House of Lords has finally moved away from a rule of evidence to a rule of substantive law. In this connection he drew attention to a sentence in Lord Steyn’s speech at 93F where he says, immediately after setting out Lord Lane’s observations in Nedrick, that: ‘The effect of the critical direction is that a result foreseen as virtually certain is an intended result.’ [40] He also relies on what Professor Sir John Smith has to say in his note on Woollin [1998] Crim LR 890 and in Smith & Hogan, Criminal Law, 10th edition, at 70ff. Thus in the former, Professor Smith said this: A jury might still fairly ask ‘We are all quite sure that D knew that it was virtually certain that his act would cause death. You tell us we are entitled to find that he intended it. Are we bound to find that? Some of us want to and some do not. How should we decide?’ The implication appears to be that, even now, they are not so bound. But why not? At one point Lord Steyn says of Nedrick ‘The effect of the critical direction is that a result foreseen as virtually certain is an intended result.’ If that is right, the only question for the jury is, ‘Did the defendant foresee the result as virtually certain?’ If he did, he intended it. That, it is submitted is what the law should be; and it now seems that we have at last moved substantially in that direction. The Nedrick formula, however, even as modified (‘entitled to find’), involves some ambiguity with the hint of the existence of some ineffable, undefinable notion of intent, locked in the breasts of the jurors. 80 MENS REA: THE MENTAL ELEMENT [41] Moreover, in the latter treatise (at 72) Professor Smith cites Lord Lane speaking in the debate on the report of the House of Lords Select Committee on Murder (HL Paper, 78-I, 1989) as follows: . . . in Nedrick the court was obliged to phrase matters as it did because of earlier decisions in your Lordships’ House by which it was bound.We had to tread very gingerly indeed in order not to tread on your Lordships’ toes. As a result, Nedrick was not as clear as it should have been. However, I agree with the conclusions of the committee that ‘intention’ should be defined in the terms set out in paragraph 195 of the report on page 50. That seems to me to express clearly what in Nedrick we failed properly to explain. [42] The definition referred to, as Smith & Hogan goes on to explain, is that stated in cl 18(b) of the Draft Code (itself referred to by Lord Steyn in Woollin [1999] AC 82, [1998] 4 All ER 103) as follows: A person acts ‘intentionally’ with respect to . . . a result when he acts either in order to bring it about or being aware that it will occur in the ordinary course of events. [43] In our judgment, however, the law has not yet reached a definition of intent in murder in terms of appreciation of a virtual certainty. Lord Lane was speaking not of what was decided in Nedrick [1986] 3 All ER 2, [1986] 1 WLR 1025 (or in the other cases which preceded it) nor of what was thereafter to be decided in Woollin [1999] AC 82, [1998] 4 All ER 103 but of what the law in his opinion should be, as represented by the cl 18(b) definition. Similarly, although the law has progressively moved closer to what Professor Smith has been advocating (see his commentaries in the Criminal Law Review on the various cases discussed above), we do not regard Woollin as yet reaching or laying down a substantive rule of law. On the contrary, it is clear from the discussion in Woollin as a whole that Nedrick was derived from the existing law, at that time ending in Moloney [1985] AC 905, [1985] 1 All ER 1025 and Hancock [1986] 1 AC 455, [1986] 1 All ER 641, and that the critical direction in Nedrick was approved, subject to the change of one word. [44] In these circumstances we think that the judge did go further than the law as it stands at present permitted him to go in redrafting the Nedrick/Woollin direction into a form where, as Mr Coker accepts (although we have some doubt about this), the jury were directed to find the necessary intent proved provided they were satisfied in the case of any defendant that there was appreciation of the virtual certainty of death. This is to be contrasted with the form of the approved direction which is in terms of ‘not entitled to find the necessary intention, unless. . . .’ [45] Having said that, however, we think that, once what is required is an appreciation of virtual certainty of death, and not some lesser foresight of merely probable consequences, there is very little to choose between a rule of evidence and one of substantive law. It is probably this thought that led Lord Steyn to say that a result foreseen as virtually certain is an intended result. Lord Bridge had reflected the same thought when he had said, in Moloney at 920C of the former report, that if the defendant there had had present to his mind, when he pulled the trigger, that his gun was pointing at his stepfather’s head at a distance of six feet and ‘its inevitable consequence’, then: the inference was inescapable, using words in their ordinary, everyday meaning, that he intended to kill his stepfather. Lord Lane had also spoken in Nedrick of an irresistible inference. ... 81 CASES AND MATERIALS ON CRIMINAL LAW [56] It was submitted that the judge should have directed the jury on the distinction between recklessness and the Nedrick/Woollin formula. However, there is no support at all in Woollin [1999] AC 82, [1998] 4 All ER 103, for such an additional direction. On the contrary: in Nedrick [1986] 3 All ER 2, [1986] 1 WLR 1025 Lord Lane had pointed up the distinction between a defendant who foresees death or serious injury but thinks that the risk is slight with the defendant who foresees death or serious injury as a virtual certainty: see the passage from Lord Lane’s judgment marked as ‘(A)’ in Lord Steyn’s speech in Woollin [1999] AC 82, [1998] 4 All ER 103, at pp 96C/D of the former report. But Lord Steyn said that that passage should not be used, as it may detract from the clarity of the ‘critical direction’ (at 96G of the former report); and Lord Hope spoke to similar effect (at 97E of the former report). Under that critical direction the jury are told that they have to be sure that a defendant ‘appreciated’ that death or serious injury was a virtual certainty. That excludes the case of true recklessness, where the defendant does not consider consequences at all. We agree with Mr Coker’s submission that a direction about recklessness was unnecessary and would have been confusing. COMMENTS AND QUESTIONS 1 What is the difference between inferring intention and finding intention? Is intention conceptually different from foresight? 2 What is to be made of Lord Steyn’s observation that he approached the issues arising on the appeal ‘on the basis that it does not follow that “intent” necessarily has precisely the same meaning in every context in the criminal law’? Does he mean that some offences require ‘purpose’ type intent? Or does he mean that intent might have a different meaning when used, for example, in the context of offences against the person? Is it conceivable that intent, in the context of intention to do grievous bodily harm contrary to s 18 of the Offences Against the Person Act 1861 (see further Chapter 5), would have a different meaning to that enunciated in Woollin? Given that intent to do grievous bodily harm will suffice for murder, this (one hopes) seems unlikely. 3 Why are the courts so reluctant to accept that the Nedrick/Woollin direction amounts to a definition of intent? 3.2.2 CODIFICATION AND LAW REFORM PROPOSALS A proposed codification of intention can be found in clause 18(b) of the draft Criminal Code Bill (DCCB). The Law Commission subsequently published its proposals for reform of offences against the person (not including homicide) in Offences Against the Person and General Principles (Law Com 218). The draft Criminal Law Bill (DCLB) attached to that report provided for a somewhat amended definition of intention in clause 1. The most recent reform proposals are to be found in the draft Bill attached to the Home Office consultation paper Violence: Reforming the Offences Against the Person Act 1861, published in February 1998. Clause 14 of the Home Office Bill proposes the following: 14(1) A person acts intentionally with respect to a result if – (a) it is his purpose to cause it, or 82 MENS REA: THE MENTAL ELEMENT (b) although it is not his purpose to cause it, he knows that it would occur in the ordinary course of events if he were to succeed in his purpose of causing some other result. ... (3) A person intends an omission to have a result if – (a) it is his purpose that the result will occur, or (b) although it is not his purpose that the result will occur, he knows that it would occur in the ordinary course of events if he were to succeed in his purpose that some other result will occur. Note that this proposed definition would only apply for the purposes of the Bill, hence it raises the prospect of intention having a different meaning in respect of other offences such as murder or criminal damage. This is clearly not a satisfactory state of affairs. If the mens rea for murder were to remain as ‘intention to cause serious harm’ it would be absurd if intent had one meaning in the context of murder, and another where the offence charged was intentionally causing serious harm under the proposed Bill. 3.3 MENS REA – RECKLESSNESS A few criminal offences, such as murder, require proof of nothing less than intent. For the vast majority of criminal offences where mens rea has to be established, however, intention or recklessness will suffice. What meaning then is to be attributed to the term ‘reckless’? On the one hand it can be seen as a fault element that justifies conviction notwithstanding that the defendant foresaw a prohibited consequence as something less than a virtually certain consequence of his act or omission – for example where the defendant foresaw that a certain harm might result. As will be seen from the extracts that follow, however, the debate in recent years has centred around the extent to which a defendant could be described as reckless notwithstanding the fact that he has not realised the risk of harm that could result from his act or omission. Prior to the House of Lords’ ruling in Commissioner of Police of the Metropolis v Caldwell [1982] AC 341, the accepted meaning of recklessness was that it required proof that the defendant had been aware of a more than negligible risk that a prohibited consequence would occur and had nevertheless gone on to take that risk. The decision in Caldwell, although effectively confined in its ambit to the offence of criminal damage under the Criminal Damage Act 1971, upset that orthodoxy by holding that, as an alternative, a defendant could be reckless if he created a risk of criminal damage that would have been obvious to the reasonable prudent adult bystander (even though not obvious to the defendant himself) and went on to take that risk. Caldwell recklessness was a significant departure from the subjective approach to mens rea in that it did not require any proof that the defendant had foreseen the risk of harm. The rule operated particularly harshly in cases involving young offenders where there was evidence that they had not possessed the intelligence to appreciate the dangerousness of their actions; see for example Elliot v C [1983] 1 WLR 939. What was the point of imposing liability on a defendant who would not have been aware of the ‘obvious risk’ even if he or she had stopped to consider the risks involved? It was never clear how the imposition of Caldwell recklessness was supposed to model a prospective defendant’s behaviour. 83 CASES AND MATERIALS ON CRIMINAL LAW 3.3.1 SUBJECTIVE RECKLESSNESS Although the Court of Appeal’s decision in R v Cunningham (below) deals with an offence where the fault element was described in the relevant statute as ‘maliciously’, the case is the leading modern authority on the subjective nature of recklessness. R v Cunningham [1957] 2 QB 396 (CA) Byrne J: The appellant was convicted at Leeds Assizes upon an indictment framed under s 23 of the Offences Against the Person Act 1861, which charged that he unlawfully and maliciously caused to be taken by Sarah Wade a certain noxious thing, namely, coal gas, so as thereby to endanger the life of the said Sarah Wade . . . The facts were not really in dispute, and in a statement to a police officer the appellant said: ‘All right, I will tell you. I was short of money, I had been off work for three days, I got eight shillings from the gas meter. I tore it off the wall and threw it away.’ Although there was a stop tap within two feet of the meter the appellant did not turn off the gas, with the result that a very considerable volume of gas escaped, some of which seeped through the wall of the cellar and partially asphyxiated Mrs Wade, who was asleep in her bedroom next door, with the result that her life was endangered. . . . The act of the appellant was clearly unlawful and therefore the real question for the jury was whether it was also malicious within the meaning of s 23 of the Offences Against the Person Act 1861 . . . With the utmost respect to the learned judge, we think it is incorrect to say that the word ‘malicious’ in a statutory offence merely means wicked. We think the judge was, in effect, telling the jury that if they were satisfied that the appellant acted wickedly – and he had clearly acted wickedly in stealing the gas meter and its contents – they ought to find that he had acted maliciously in causing the gas to be taken by Mrs Wade so as thereby to endanger her life. In our view it should have been left to the jury to decide whether, even if the appellant did not intend the injury to Mrs Wade, he foresaw that the removal of the gas meter might cause injury to someone but nevertheless removed it. We are unable to say that a reasonable jury, properly directed as to the meaning of the word ‘maliciously’ in the context of s 23, would without doubt have convicted. R v G [2003] 4 All ER 765 Two boys started a fire in a refuse bin. The fire spread and caused extensive damage to some nearby shops. The boys were convicted of criminal damage on the basis that they had been reckless as to whether property would be damaged. The trial judge, following Commissioner of Police of the Metropolis v Caldwell [1982] AC 341, had rejected a submission that the direction to the jury regarding recklessness should reflect the fact that the defendants had been aged 11 and 12 at the time of the offence. The Court of Appeal upheld the conviction, regarding itself as bound by Caldwell and the following point of law was certified for consideration by the House of Lords: 84 MENS REA: THE MENTAL ELEMENT Can a defendant properly be convicted under section 1 of the Criminal Damage Act 1971 on the basis that he was reckless as to whether property was destroyed or damaged when he gave no thought to the risk but, by reason of his age and/or personal characteristics the risk would not have been obvious to him, even if he had thought about it? Lord Bingham: The task confronting the House in this appeal is, first of all, one of statutory construction: what did Parliament mean when it used the word ‘reckless’ in section 1(1) and (2) of the 1971 Act? In so expressing the question I mean to make it as plain as I can that I am not addressing the meaning of ‘reckless’ in any other statutory or common law context . . . . . . Since a statute is always speaking, the context or application of a statutory expression may change over time, but the meaning of the expression itself cannot change. So the starting point is to ascertain what Parliament meant by ‘reckless’ in 1971 . . . section 1 [of the 1971 Act] as enacted followed . . . the draft proposed by the Law Commission. It cannot be supposed that by ‘reckless’ Parliament meant anything different from the Law Commission. The Law Commission’s meaning was made plain both in its Report . . . These materials . . . reveal a very plain intention to replace the old-fashioned and misleading expression ‘maliciously’ by the more familiar expression ‘reckless’ but to give the latter expression the meaning which R v Cunningham [1957] 2 QB 396 and Professor Kenny had given to the former. In treating this authority as irrelevant to the construction of ‘reckless’ the majority [in Caldwell ] fell into understandable but clearly demonstrable error. No relevant change in the mens rea necessary for proof of the offence was intended, and in holding otherwise the majority misconstrued section 1 of the Act. That conclusion is by no means determinative of this appeal. For the decision in R v Caldwell was made more than 20 years ago . . . Invitations to reconsider that reasoning have been rejected. The principles laid down have been applied on many occasions, by Crown Court judges and, even more frequently, by justices. In the submission of the Crown, the ruling of the House works well and causes no injustice in practice. If Parliament had wished to give effect to the intention of the Law Commission it has had many opportunities, which it has not taken, to do so. Despite its power under Practice Statement (Judicial Precedent) [1966] 1 WLR 1234 to depart from its earlier decisions, the House should be very slow to do so, not least in a context such as this. These are formidable arguments . . . But I am persuaded by Mr Newman QC for the appellants that they should be rejected. I reach this conclusion for four reasons, taken together. First, it is a salutary principle that conviction of serious crime should depend on proof not simply that the defendant caused (by act or omission) an injurious result to another but that his state of mind when so acting was culpable. This, after all, is the meaning of the familiar rule actus non facit reum nisi mens sit rea. The most obviously culpable state of mind is no doubt an intention to cause the injurious result, but knowing disregard of an appreciated and unacceptable risk of causing an injurious result or a deliberate closing of the mind to such risk would be readily accepted as culpable also. It is clearly blameworthy to take an obvious and significant risk of causing injury to another. But it is not clearly blameworthy to do something involving a risk of injury to another if . . . one genuinely does not perceive the risk. Such a person may fairly be accused of stupidity or lack of imagination, but neither of those failings should expose him to conviction of serious crime or the risk of punishment. Secondly, the present case shows, more clearly than any other reported case since R v Caldwell, that the model direction formulated by Lord Diplock is capable of leading to obvious unfairness . . . it is evident that [the trial judge’s direction based on the objective approach to 85 CASES AND MATERIALS ON CRIMINAL LAW recklessness espoused in Caldwell ] . . . offended the jury’s sense of fairness. The sense of fairness of 12 representative citizens sitting as a jury (or of a smaller group of lay justices sitting as a bench of magistrates) is the bedrock on which the administration of criminal justice in this country is built. A law which runs counter to that sense must cause concern. Here, the appellants could have been charged under section 1(1) with recklessly damaging one or both of the wheelie-bins, and they would have had little defence. As it was, jury might have inferred that boys of the appellants’ age would have appreciated the risk to the building of what they did, but it seems clear that such was not their conclusion (nor, it would appear, the judge’s either). On that basis the jury thought it unfair to convict them. I share their sense of unease. It is neither moral nor just to convict a defendant (least of all a child) on the strength of what someone else would have apprehended if the defendant himself had no such apprehension. Nor, the defendant having been convicted, is the problem cured by imposition of a nominal penalty. Thirdly, I do not think the criticism of R v Caldwell expressed by academics, judges and practitioners should be ignored. A decision is not, of course, to be overruled or departed from simply because it meets with disfavour in the learned journals. But a decision which attracts reasoned and outspoken criticism by the leading scholars of the day, respected as authorities in the field, must command attention . . . Fourthly, the majority’s interpretation [in Caldwell ] of ‘recklessly’ in section 1 of the 1971 Act was, as already shown, a misinterpretation. If it were a misinterpretation that offended no principle and gave rise to no injustice there would be strong grounds for adhering to the misinterpretation and leaving Parliament to correct it if it chose. But this misinterpretation is offensive to principle and is apt to cause injustice.That being so, the need to correct the misinterpretation is compelling. . . . In the course of argument before the House it was suggested that the rule in R v Caldwell might be modified, in cases involving children, by requiring comparison not with normal reasonable adults but with normal reasonable children of the same age. This is a suggestion with some attractions but it is open to four compelling objections. First, even this modification would offend the principle that conviction should depend on proving the state of mind of the individual defendant to be culpable. Second, if the rule were modified in relation to children on grounds of their immaturity it would be anomalous if it were not also modified in relation to the mentally handicapped on grounds of their limited understanding. Third, any modification along these lines would open the door to difficult and contentious argument concerning the qualities and characteristics to be taken into account for purposes of the comparison. Fourth, to adopt this modification would be to substitute one misinterpretation of section 1 for another. There is no warrant in the Act or in the travaux préparatoires which preceded it for such an interpretation. A further refinement, advanced by Professor Glanville Williams in his article ‘Recklessness Redefined’ (1981) 40 CLJ 252, 270–271, adopted by the justices in Elliott v C [1983] 1 WLR 939 and commented upon by Robert Goff LJ in that case is that a defendant should only be regarded as having acted recklessly by virtue of his failure to give any thought to an obvious risk that property would be destroyed or damaged, where such risk would have been obvious to him if he had given any thought to the matter. This refinement also has attractions, although it does not meet the objection of principle and does not represent a correct interpretation of the section. It is, in my opinion, open to the further objection of over-complicating the task of the jury (or bench of justices). It is one thing to decide whether a defendant can be believed when he says that the thought of a given risk never crossed 86 MENS REA: THE MENTAL ELEMENT his mind. It is another, and much more speculative, task to decide whether the risk would have been obvious to him if the thought had crossed his mind. The simpler the jury’s task, the more likely is its verdict to be reliable . . . I cannot accept that restoration of the law as understood before R v Caldwell would lead to the acquittal of those whom public policy would require to be convicted.There is nothing to suggest that this was seen as a problem before R v Caldwell . . . There is no reason to doubt the common sense which tribunals of fact bring to their task. In a contested case based on intention, the defendant rarely admits intending the injurious result in question, but the tribunal of fact will readily infer such an intention, in a proper case, from all the circumstances and probabilities and evidence of what the defendant did and said at the time. Similarly with recklessness: it is not to be supposed that the tribunal of fact will accept a defendant’s assertion that he never thought of a certain risk when all the circumstances and probabilities and evidence of what he did and said at the time show that he did or must have done. . . . For the reasons I have given I would allow this appeal and quash the appellants’ convictions. I would answer the certified question obliquely, basing myself on clause 18(c) of the Criminal Code Bill annexed by the Law Commission to its Report ‘A Criminal Code for England and Wales Volume 1: Report and Draft Criminal Code Bill’ (Law Com No 177, April 1989): A person acts recklessly within the meaning of section 1 of the Criminal Damage Act 1971 with respect to – (i) (ii) a circumstance when he is aware of a risk that it exists or will exist; a result when he is aware of a risk that it will occur; and it is, in the circumstances known to him, unreasonable to take the risk. Lord Steyn: In my view the very high threshold for departing from a previous decision of the House has been satisfied in this particular case. In summary I would reduce my reasons to three propositions. First, in Caldwell the majority should have accepted without equivocation that before the passing of the 1971 Act foresight of consequences was an essential element in recklessness in the context of damage to property under section 51 of the Malicious Damage Act 1861. Secondly, the matrix of the immediately preceding Law Commission recommendations shows convincingly that the purpose of section 1 of the 1971 Act was to replace the out of date language of ‘maliciously’ causing damage by more modern language while not changing the substance of the mental element in any way. Foresight of consequences was to remain an ingredient of recklessness in regard to damage to property. Thirdly, experience has shown that by bringing within the reach of section 1(1) cases of inadvertent recklessness the decision in Caldwell became a source of serious potential injustice which cannot possibly be justified on policy grounds. These three propositions require some explanation. . . . In the case before the House the two boys were 11 and 12 respectively. Their escapade of camping overnight without their parents’ permission was something that many children have undertaken. But by throwing lit newspapers under a plastic wheelie bin they caused £1m of damage to a shop. It is, however, an agreed fact on this appeal that the boys thought there was no risk of the fire spreading in the way it eventually did. What happened at trial is highly significant. The jury were perplexed by the Caldwell directions which compelled them to treat the boys as adults and to convict them. The judge plainly thought this approach was contrary to common sense but loyally applied the law as laid down in Caldwell. The view of the jurors and the judge would be widely shared by reasonable people who pause to consider the matter. The only answer 87 CASES AND MATERIALS ON CRIMINAL LAW of the Crown is that where unjust convictions occur the judge can impose a lenient sentence.This will not do in a modern criminal justice system. Parliament certainly did not authorise such a cynical strategy. Ignoring the special position of children in the criminal justice system is not acceptable in a modern civil society . . . The accepted meaning of recklessness involved foresight of consequences. This subjective state of mind is to be inferred ‘by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances’ . . . That is what Parliament intended by implementing the Law Commission proposals. This interpretation of section 1 of the 1971 Act would fit in with the general tendency in modern times of our criminal law. The shift is towards adopting a subjective approach. It is generally necessary to look at the matter in the light of how it would have appeared to the defendant. . . . The surest test of a new legal rule is not whether it satisfies a team of logicians but how it performs in the real world. With the benefit of hindsight the verdict must be that the rule laid down by the majority in Caldwell failed this test. It was severely criticised by academic lawyers of distinction. It did not command respect among practitioners and judges. Jurors found it difficult to understand: it also sometimes offended their sense of justice. Experience suggests that in Caldwell the law took a wrong turn. That brings me to the question whether the subjective interpretation of recklessness might allow wrongdoers who ought to be convicted of serious crime to escape conviction. Experience before Caldwell did not warrant such a conclusion. In any event, as Lord Edmund-Davies explained, if a defendant closes his mind to a risk he must realise that there is a risk and, on the evidence, that will usually be decisive: 358D. One can trust the realism of trial judges, who direct juries, to guide juries to sensible verdicts and juries can in turn be relied on to apply robust common sense to the evaluation of ridiculous defences. Moreover, the endorsement by Parliament of the Law Commission proposals could not seriously have been regarded as a charter for the acquittal of wrongdoers. In my view the case for departing from Caldwell has been shown to be irresistible. ‘Caldwell Recklessness is Dead, Long Live Mens rea’s Fecklessness’: Kumaralingam Amirthalingam (2004) MLR 491 R v G’s restoration of recklessness to its subjective roots may have been justified on the facts but the doctrine of mens rea itself needs to be restored to its normative roots of attributing blameworthiness. By emphasising blameworthiness and the community’s sense of fairness but juxtaposing that with subjective mens rea R v G was a wrong step in the right direction . . . A modified objective test for children, where the question would be whether a reasonable person of similar age would have considered the risk to be an obvious one, was considered and rejected. The rejection of this approach is questionable given that the courts have recognised that the reasonable person may be modified in the case of professionals or experts. Lord Steyn referred to the Convention on the Rights of the Child and held that it provided a compelling argument to reject Caldwell, as the Convention required a child’s age to be taken into account in an objective sense. The considerable experience of the tort of negligence suggests that such modifications are not only permissible but necessary. 88 MENS REA: THE MENTAL ELEMENT A ‘subjectivised’ form of inadvertence, suggested by Glanville Williams, whereby an accused could be held reckless if the risk would have been obvious to the accused had he or she – and not the reasonable person – given any thought to the matter was also rejected. In Lord Bingham’s view, juries could decide whether a defendant possessed the requisite mens rea, but it would be too speculative for a jury to decide whether a defendant would have considered the risk to be obvious if he or she had thought about the risk. Be that as it may the proper question in any case is not whether the defendant would have considered the risk but whether the defendant, having chosen to act in that way, should have considered the risk. This is a normative question that determines whether the mens was rea and juries are eminently capable of making such decisions. . . . Even if one does not accept the moral blameworthiness thesis and adopts Hart’s view that mens rea is merely about ensuring that the accused had a fair opportunity to exercise his or her physical and mental capacities to avoid infringing the law, a similar conclusion as to inadvertence is reached . . . Criminal fault is a composite of subjective and objective elements. Orthodox theory however insists on an artificial bifurcation and the inquiry into blameworthiness is hijacked by the futile exercise of labelling fault as subjective or objective. R v C regretfully preserves this unhelpful predilection. . . . A subjective test is necessary to establish the existence of a relevant mental state – the ‘mens’. This ensures individual responsibility; it takes into account the accused’s personal capacity so it cannot be said that the accused him or herself did not have a fair opportunity to avoid criminal liability. It is only in determining the blameworthiness of the accused’s mental state – the ‘rea’ – that some objectivity is necessary. This approach still honours the goal of subjectivism, as it is the accused’s mental state that is at issue; unlike liability for negligence, where it is purely the accused’s conduct that is at issue. Expanding negligence is not appropriate because it does not reflect the ‘evil mind’ that is the touchstone of criminal liability and that which distinguishes it from civil liability. The House of Lords in R v G was willing to overturn an established, time tested authority in order to nurture a criminal law doctrine of fault that fairly attributes blameworthiness to the accused and accords with the community’s sense of fairness and justice. On the facts, the purely subjective approach to mens rea was apposite, but it would be a mistake to pretend that a purely subjective doctrine is the salve to our mens rea woes. Lord Rodger of Earlsferry acknowledged this in his opinion where he expressed the view that Lord Diplock’s broader concept of recklessness, encompassing an objective element was not undesirable in terms of legal policy; and further, held that inadvertence need not necessarily be excluded from recklessness. This observation is especially relevant to recklessness in the context of sexual offences. . . . In a civil society there should be certain minimum duties of citizenship and every individual should have a responsibility to advert to relevant risks when actively engaging in certain conduct. Failure to live up to that can fairly be labelled culpable.This is not an objective test in the sense of ignoring the accused and asking what the reasonable person would have foreseen. The focus remains on the accused and the question is simply whether his or her mind should have been attuned to the risk. COMMENTS AND QUESTIONS 1 Following the decision in Caldwell Parliament replaced the offence of causing death by reckless driving with the offence of causing death by dangerous driving; see Road Traffic Act 89 CASES AND MATERIALS ON CRIMINAL LAW 1991. What was the significance of the substitution of the word ‘dangerous’ for ‘reckless’? Was it intended to make convictions easier to come by? Did the change make clear that the fault element was now totally objective? 2 Was the House of Lords correct in R v G to adopt an all or nothing approach to objective recklessness? Whilst few would advocate the imposition of liability on a juvenile who had not and could not have thought of the risk of harm in a given situation, is there not merit in imposing liability on a sentient adult for failing to consider a risk he would have been aware of if only he had stopped to consider it? Should thoughtlessness be elevated to a form of mens rea? 3 The decision in R v Caldwell also gave rise to what became known as the ‘lacuna’ argument which ran thus: if a defendant, before acting, showed that he stopped to consider a risk, and genuinely concluded that there was no risk, he should not be found to be reckless even if the risk materialised. This was because he had given thought to the risk, and thus fell outside the scope of Caldwell recklessness, and he did not believe he was taking a risk, hence he fell outside the scope of Cunningham recklessness. Following R v G is there any need for a lacuna argument? Is it true to say that a defendant who considers a risk but then genuinely dismisses it as remote or negligible is not reckless because he is not aware that he is taking a risk? 4 For an illustration of the effect of R v G, see R v Castle [2004] All ER (D) 289, where the appellant was charged with aggravated criminal damage being reckless as to whether life would be endangered. The Court of Appeal stressed that the objective approach to recklessness had been abandoned. The jury should have been directed that the defendant had acted recklessly with respect to: a circumstance if he had been aware of a risk that it had or would have existed; or that he was reckless as regards a result if he had been aware of a risk that it would occur, and it was in the circumstances known to him, unreasonable to take the risk. 5 Although Lord Bingham, in R v G, observed that in redefining recklessness under the Criminal Damage Act 1971 he was not referring to recklessness in any other statutory or common law context, is there any justification for recklessness having any other meaning in criminal law? 3.3.2 CODIFICATION AND LAW REFORM PROPOSALS The definition of recklessness endorsed by the House of Lords in R v G is essentially that put forward in the Home Office Consultation Paper Violence: Reforming the Offences Against the Person Act 1861, which in turn drew upon the definition contained in the 1989 Draft Code Bill. The commentary to the DCCB is, therefore, still instructive in this regard: 8.17 ‘Recklessly’. Clause 18(c) provides that a person acts ‘recklessly’ with respect to a circumstance when he is aware of a risk that it exists or will exist, and with respect to a result when he is aware of a risk that it will occur, it being, in either case, ‘in the circumstances known to him, unreasonable to take the risk’. The use thus proposed for ‘reckless’ and related words is the same as that which we proposed in our Mental Element Report. ... 8.20 The ‘subjectivist’ approach to criminal liability. ‘Knowledge’, ‘intention’ and ‘recklessness’ (and cognate words) are terms used throughout the draft Bill with the meanings given by clause. 90 MENS REA: THE MENTAL ELEMENT The modern English criminal law tradition tends to require a positive state of mind with respect to the various external elements of an offence of any seriousness; and the three key terms are the obvious terms, because of their familiarity in criminal law usage, by which to refer to some of the most common states of mind required. Although this ‘subjectivist’ tradition is not without its critics, we are proposing a Code that stays within the mainstream of English criminal law. But in doing so we do not exclude the possibility that Parliament may hereafter wish to create offences constructed upon a different foundation of liability. The group of House of Lords’ cases led by Caldwell can, indeed, be interpreted as having placed some serious offences upon such a different foundation. It will, of course, be open to Parliament to pursue the line followed by those cases by rejecting or modifying the fault requirements proposed for particular offences in Part II of our draft Bill and by providing further key terms to supplement the three that we have defined. 8.21 The Code team, in their Bill, did in fact provide a term (‘heedlessness’) to convey the extended sense of recklessness laid down in Caldwell. We have not found occasion to use that expression in the definitions of offences in Part 11 of our Bill but it remains available if there should prove to be a use for it. 3.4 THE SIGNIFICANCE OF MISTAKE Although it is common to hear mistake spoken of as a substantive defence in criminal law, in reality a defendant pleading mistake is almost always denying that he had the mens rea for the offence with which he has been charged. On this basis it is likely to be the case that mistake is the most commonly pleaded ‘defence’ in criminal law. It is possible to identify three categories of defence argument based on mistake: (a) Where the defendant claims that he did not know that a particular activity was prohibited by law, that is, mistake of law. (b) Where a defendant makes a mistake of fact. The key here is to distinguish between relevant and irrelevant mistakes. • If D burgles A’s house mistaking it for P’s, he has made a mistake of fact but not one that has any relevance in terms of denying the mens rea of the offence. • If D points a gun at P and pulls the trigger, wrongly believing the gun to be unloaded, with the result that P suffers injuries, D has again made a mistake of fact, but not one that necessarily denies the mens rea for the offence. D may not have intended to injure P, but he may still be regarded as reckless in not having checked whether or not the gun was loaded before pulling the trigger. In effect this type of mistake is a denial of foresight of consequences. • D fires his gun at what he believes to be a small deer. In fact it is a poacher who dies from the resultant injuries. D has made a mistake of fact, but this time it relates to an element of the offence that the prosecution has to prove – that is, on a murder charge the prosecution has to prove that D intended to kill or do grievous bodily harm to a human being. If D’s mistake of fact leads him to believe he is shooting at an animal, and he therefore acts with intent to attack an animal, he lacks the mens rea for the offence. The mistake is evidence that D lacked the mens rea. As the extracts below 91 CASES AND MATERIALS ON CRIMINAL LAW indicate, the debate here has centred around whether D should be judged on the facts as he believes them to be, or whether D should only be able to rely on a mistake of fact that the reasonable person would have made. (c) D may make a mistake of fact that leads him to believe in the existence of justificatory or exculpatory circumstances. For example, he may mistakenly believe that P is consenting to what would otherwise be an assault, or D may mistakenly believe that P is about to attack him, leading D to use force on P that would be justified as self-defence if the facts were as D believed them to be; this latter aspect of mistake is considered further in Chapter 14.10. 3.4.1 MISTAKE OF FACT RELATING TO AN ELEMENT OF THE OFFENCE CHARGED The following extracts from DPP v Morgan and B v DPP raise general issues regarding the subjectivist approach to mens rea, whereby the defendant is to be judged on the facts as he honestly believes them to be. Note that the offences under consideration have been significantly reformed by the Sexual Offences Act 2003, considered in Chapter 6. Under the 2003 Act, an honest belief that the complainant in a rape case was consenting will not avail the defendant, the belief in the complainant’s consent must now also be reasonably held. The following extracts concern the approach to mistake of fact at common law, which remains subjective – i.e. the defendant is to be judged on the facts as he honestly believed them to be. DPP v Morgan [1976] AC 182 (HL) The appellant Morgan and his three co-appellants spent the evening of 15 August 1973 in one another’s company. Morgan persuaded his co-defendants to return to his house in order to have sex with his wife, the complainant. He reassured them that she enjoyed being forced to have sex with strangers, and that if she offered resistance it was her way of showing that she was enjoying the sexual intercourse. The complainant was aroused from her sleep, frogmarched into another room where there was a double bed, held by each of her limbs, arms and legs apart, by the four appellants, while each of Morgan’s co-appellants in turn had intercourse with her in the presence of the others.The question certified considered by the House of Lords was: Whether, in rape, the defendant can properly be convicted notwithstanding that he in fact believed that the woman consented if such belief was not based on reasonable grounds. Lord Hailsham of St Marylebone: . . . Once one has accepted, what seems to me abundantly clear, that the prohibited act in rape is non-consensual sexual intercourse, and that the guilty state of mind is an intention to commit it, it seems to me to follow as a matter of inexorable logic that there is no room either for a ‘defence’ of honest belief or mistake, or of a defence of honest and reasonable belief and mistake. Either the prosecution proves that the accused had the requisite intent, or it does not. In the former case it 92 MENS REA: THE MENTAL ELEMENT succeeds, and in the latter it fails. Since honest belief clearly negatives intent, the reasonableness or otherwise of that belief can only be evidence for or against the view that the belief and therefore the intent was actually held, and it matters not whether, to quote Bridge J [giving the judgment of the Court of Appeal in the present case], ‘the definition of a crime includes no specific element beyond the prohibited act’ . . . B v DPP [2000] 1 All ER 833 For the facts see the extract in Chapter 3.8.1. Lord Nicholls: Reasonable belief or honest belief The existence of the presumption is beyond dispute, but in one respect the traditional formulation of the presumption calls for re-examination. This respect concerns the position of a defendant who acted under a mistaken view of the facts. In this regard, the presumption is expressed traditionally to the effect that an honest mistake by a defendant does not avail him unless the mistake was made on reasonable grounds. Thus, in R v Tolson (1889) 23 QBD 168, 181, Cave J observed: At common law an honest and reasonable belief in the existence of circumstances, which, if true, would make the act for which a prisoner is indicted an innocent act has always been held to be a good defence. This doctrine is embodied in the somewhat uncouth maxim ‘actus non facit reum, nisi mens sit rea’. Honest and reasonable mistake stands on the same footing as absence of the reasoning faculty, as in infancy, or perversion of that faculty, as in lunacy . . . So far as I am aware it has never been suggested that these exceptions do not equally apply in the case of statutory offences unless they are excluded expressly or by necessary implication. The other judges in that case expressed themselves to a similar effect. In Bank of New South Wales v Piper [1897] AC 383, 389–90, the Privy Council likewise espoused the ‘reasonable belief’ approach: . . . the absence of mens rea really consists in an honest and reasonable belief entertained by the accused of facts which, if true, would make the act charged against him innocent. In Sweet v Parsley [1970] AC 132, 163, Lord Diplock referred to a general principle of construction of statutes creating criminal offences, in similar terms: . . . a general principle of construction of any enactment, which creates a criminal offence, [is] that, even where the words used to describe the prohibited conduct would not in any other context connote the necessity for any particular mental element, they are nevertheless to be read as subject to the implication that a necessary element in the offence is the absence of a belief, held honestly and upon reasonable grounds, in the existence of facts which, if true, would make the act innocent. The ‘reasonable belief’ school of thought held unchallenged sway for many years. But over the last quarter of a century there have been several important cases where a defence of honest but 93 CASES AND MATERIALS ON CRIMINAL LAW mistaken belief was raised. In deciding these cases the courts have placed new, or renewed, emphasis on the subjective nature of the mental element in criminal offences. The courts have rejected the reasonable belief approach and preferred the honest belief approach. When mens rea is ousted by a mistaken belief, it is as well ousted by an unreasonable belief as by a reasonable belief. In the pithy phrase of Lawton LJ in R v Kimber [1983] 1 WLR 1118, 1122, it is the defendant’s belief, not the grounds on which it is based, which goes to negative the intent.This approach is well encapsulated in a passage in the judgment of Lord Lane CJ in R v Williams (Gladstone) (1984) 78 Cr App R 276, 281: The reasonableness or unreasonableness of the defendant’s belief is material to the question of whether the belief was held by the defendant at all. If the belief was in fact held, its unreasonableness, so far as guilt or innocence is concerned, is neither here nor there. It is irrelevant. Were it otherwise, the defendant would be convicted because he was negligent in failing to recognise that the victim was not consenting . . . and so on. Considered as a matter of principle, the honest belief approach must be preferable. By definition the mental element in a crime is concerned with a subjective state of mind, such as intent or belief. To the extent that an overriding objective limit (‘on reasonable grounds’) is introduced, the subjective element is displaced. To that extent a person who lacks the necessary intent or belief may nevertheless commit the offence. When that occurs the defendant’s ‘fault’ lies exclusively in falling short of an objective standard. His crime lies in his negligence. A statute may so provide expressly or by necessary implication. But this can have no place in a common law principle, of general application, which is concerned with the need for a mental element as an essential ingredient of a criminal offence. The traditional formulation of the common law presumption, exemplified in Lord Diplock’s famous exposition in Sweet v Parsley, cited above, is out of step with this recent line of authority, in so far as it envisages that a mistaken belief must be based on reasonable grounds. This seems to be a relic from the days before a defendant in a criminal case could give evidence in his own defence. It is not surprising that in those times juries judged a defendant’s state of mind by the conduct to be expected of a reasonable person. I turn to the recent authorities.The decision which heralded this development in criminal law was the decision of your Lordships’ House in Director of Public Prosecutions v Morgan [1976] AC 182. This was a case of rape. By a bare majority the House held that where a defendant had sexual intercourse with a woman without her consent but believing she did consent, he was not guilty of rape even though he had no reasonable grounds for his belief. The intent to commit rape involves an intention to have intercourse without the woman’s consent or with a reckless indifference to whether she consents or not. It would be inconsistent with this definition if an honest belief that she did consent led to an acquittal only when it was based on reasonable grounds. One of the minority, Lord Edmund-Davies, would have taken a different view had he felt free to do so. In R v Kimber [1983] 1 WLR 1118, a case of indecent assault, the Court of Appeal applied the approach of the majority in Morgan’s case. The guilty state of mind was the intent to use personal violence to a woman without her consent. If the defendant did not so intend, he was entitled to be found not guilty. If he did not so intend because he believed she was consenting, the prosecution will have failed to prove the charge, irrespective of the grounds for the defendant’s belief. The court disapproved of the suggestion made in the earlier case of R v Phekoo [1981] 1 WLR 1117, 1127, that this House intended to confine the views expressed in Morgan’s case to cases of rape. This reasoning was taken a step further in R v Williams (Gladstone) (1984) 78 Cr App R 276. 94 MENS REA: THE MENTAL ELEMENT There the Court of Appeal, presided over by Lord Lane CJ, adopted the same approach in a case of assault occasioning actual bodily harm.The context was a defence that the defendant believed that the person whom he assaulted was unlawfully assaulting a third party. In Beckford v R [1988] AC 130 a similar issue came before the Privy Council on an appeal from Jamaica in a case involving a defence of self-defence to a charge of murder. The Privy Council applied the decisions in Morgan’s case and Williams’ case. Lord Griffiths said, at 144: If then a genuine belief, albeit without reasonable grounds, is a defence to rape because it negatives the necessary intention, so also must a genuine belief in facts which if true would justify self-defence be a defence to a crime of personal violence because the belief negatives the intent to act unlawfully. Lord Griffiths also observed, at a practical level, that where there are no reasonable grounds to hold a belief it will surely only be in exceptional circumstances that a jury will conclude that such a belief was or might have been held. Finally in this summary, in Blackburn v Bowering [1994] 1 WLR 1324, the Court of Appeal, presided over by Sir Thomas Bingham MR, applied the same approach to the exercise by the court of its contempt jurisdiction in respect of an alleged assault on officers of the court while in the execution of their duty. The Crown advanced no suggestion to your Lordships that any of these recent cases was wrongly decided. This is not surprising, because the reasoning in these cases is compelling. Thus, the traditional formulation of the common law presumption must now be modified appropriately. Otherwise the formulation would not be an accurate reflection of the current state of the criminal law regarding mistakes of fact. Lord Diplock’s dictum in Sweet v Parsley [1970] AC 132, 163, must in future be read as though the reference to reasonable grounds were omitted. I add one further general observation. In principle, an age-related ingredient of a statutory offence stands on no different footing from any other ingredient. If a man genuinely believes that the girl with whom he is committing a grossly indecent act is over fourteen, he is not intending to commit such an act with a girl under fourteen . . . COMMENTS AND QUESTIONS 1 A mistake of law will normally only amount to a defence if it is a mistake as to civil law, not criminal law. For example, it is a defence to say ‘I thought that I was – as a matter of civil law – the legal owner of the property I damaged’ (as in R v Smith [1974] QB 354, considered in Chapter 12.5.2) but it is not a defence to say ‘I thought that a wild creature could not be “property” for the purposes of theft’ (cf s 4(4) of the Theft Act 1968). 2 A defendant charged with theft will be able to argue that he was not dishonest if, when he appropriated the property belonging to another he did so in the honest belief that he had the right in law to take the property. Note that he does not have to provide evidence of any such right; it suffices that he believes he has the right. In this sense his mistake as to his civil law rights can provide a shield against criminal liability; see further Chapter 9.5.2. 3 A defendant who, through mental illness, is unaware that an activity is prohibited by the criminal law could be entitled to rely on the defence of insanity – see further Chapter 13.5.4. 4 Suppose D wants to fix a distinctive mascot to the front of his car and inquires at the local 95 CASES AND MATERIALS ON CRIMINAL LAW police station as to whether this would be lawful. The duty officer advises him that it would be lawful. D is later stopped by the police and prosecuted because the mascot contravenes a provision in the relevant road traffic legislation. Can D plead mistake of law as a defence? Would there be any public law argument to the effect that he had a legitimate expectation that he would not be prosecuted? 5 Where a defendant makes a mistake of fact because he has, of his own volition, reduced himself to a state of intoxication, the mistake will not avail him if he is charged with a crime of basic intent – see further Chapter 13.1.3. 6 The principle that D should be judged on the facts as he honestly believes them to be should apply equally to a mistake as to the availability of a defence; see further Chapter 14.11. 3.5 CHILDREN AND PROOF OF MENS REA A child under the age of 10 cannot incur criminal liability. This is established by s 50 of the Children and Young Persons Act 1933, which provides: ‘It shall be conclusively presumed that no child under the age of 10 can be guilty of an offence.’ Prior to 1998 it was the case that, in respect of a child between the ages of 10 and 14, mens rea would only be established if the defendant knew that what he had done was wrong – sometimes referred to as ‘mischievous discretion’. This operated as a rebuttable presumption against a child between the ages of 10 and 14 having mens rea. Section 34 of the Crime and Disorder Act 1998 Act abolished the presumption as follows: ‘The rebuttable presumption of criminal law that a child aged 10 or over is incapable of committing an offence is hereby abolished.’ T v United Kingdom; V v United Kingdom (1999) The Times, 17 December The European Court of Human Rights was asked to rule upon whether or not the imposition of criminal liability on children as young as 10 years of age amounted to a breach of the European Convention on Human Rights. European Court of Human Rights: Pursuant to section 50 of the Children and Young Persons Act 1933 (‘the 1933 Act’) as amended by section 16(1) of the Children and Young Persons Act 1963, the age of criminal responsibility in England and Wales is ten years, below which no child can be found guilty of a criminal offence. The age of ten was endorsed by the Home Affairs Select Committee (composed of Members of Parliament) in October 1993 (Juvenile Offenders, Sixth Report of the Session 1992–93, Her Majesty’s Stationery Office) . . . The United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) . . . were adopted by the United Nations General Assembly on 29 November 1985. These Rules are not binding in international law . . . They provide, as relevant: 4.1 In those legal systems recognising the concept of the age of criminal responsibility for juveniles, the beginning of that age shall not be fixed at too low an age level, bearing in mind the facts of emotional, mental and intellectual maturity. Commentary: The minimum age of criminal responsibility differs widely owing to history and culture.The modern approach would be to consider whether a child can live up to the moral and 96 MENS REA: THE MENTAL ELEMENT psychological components of criminal responsibility; that is, whether a child, by virtue of her or his individual discernment and understanding, can be held responsible for essentially antisocial behaviour. If the age of criminal responsibility is fixed too low or if there is no lower age limit at all, the notion of criminal responsibility would become meaningless. In general, there is a close relationship between the notion of responsibility for delinquent or criminal behaviour and other social rights and responsibilities (such as marital status, civil majority, etc). Efforts should therefore be made to agree on a reasonable lowest age limit that is applicable. . . . The age of criminal responsibility is seven in Cyprus, Ireland, Switzerland and Liechtenstein; eight in Scotland; thirteen in France; fourteen in Germany, Austria, Italy and many Eastern European countries; fifteen in the Scandinavian countries; sixteen in Portugal, Poland and Andorra; and eighteen in Spain, Belgium and Luxembourg. . . . The applicant alleged that the cumulative effect of the age of criminal responsibility, the accusatorial nature of the trial, the adult proceedings in a public court, the length of the trial, the jury of twelve adult strangers, the physical lay-out of the courtroom, the overwhelming presence of the media and public, the attacks by the public on the prison van which brought him to court and the disclosure of his identity, together with a number of other factors linked to his sentence gave rise to a breach of Article 3. He submitted that, at ten years old, the age of criminal responsibility in England and Wales was low compared with almost all European countries, in the vast majority of which the minimum age of responsibility was thirteen or higher. He contended, moreover, that there was a clear developing trend in international and comparative law towards a higher age of criminal responsibility . . . He accepted that it was in principle possible for a State to attribute criminal responsibility to a child as young as ten without violating that child’s rights under Article 3. However, it was then incumbent on such a State to ensure that the procedures adopted for the trial and sentencing of such young children were modified to reflect their age and vulnerability. . . . The Government denied that the attribution of criminal responsibility to the applicant and his trial in public in an adult court breached his rights under Article 3. With regard to the age of criminal responsibility, they submitted that the practice amongst the Contracting States was very varied, with ages ranging from seven in Cyprus, Ireland, Liechtenstein and Switzerland, to eighteen in a number of other States. There were no international principles laying down a specific age for criminal responsibility: Article 40(3) of the UN Convention required States to adopt a minimum age but imposed no specific such age. The Beijing Rules relied upon by the applicant were not binding under international law; the Preamble invited States to adopt them but left it up to States to decide whether or not to do so. . . . The Court has considered first whether the attribution to the applicant of criminal responsibility in respect of acts committed when he was ten years old could, in itself, give rise to a violation of Article 3. In doing so, it has regard to the principle, well established in its case law that, since the Convention is a living instrument, it is legitimate when deciding whether a certain measure is acceptable under one of its provisions to take account of the standards prevailing amongst the Member States of the Council of Europe . . . . . . In this connection, the Court observes that, at the present time there is not yet a commonly accepted minimum age for the imposition of criminal responsibility in Europe. While most of the Contracting States have adopted an age-limit which is higher than that in force in England and Wales, other States, such as Cyprus, Ireland, Liechtenstein and Switzerland, attribute criminal responsibility from a younger age. Moreover, no clear tendency can be ascertained from examination of the relevant international texts and instruments . . . Rule 4 of the Beijing Rules which, 97 CASES AND MATERIALS ON CRIMINAL LAW although not legally binding, might provide some indication of the existence of an international consensus, does not specify the age at which criminal responsibility should be fixed but merely invites States not to fix it too low, and Article 40(3)(a) of the UN Convention requires States Parties to establish a minimum age below which children shall be presumed not to have the capacity to infringe the criminal law, but contains no provision as to what that age should be. The Court does not consider that there is at this stage any clear common standard amongst the member States of the Council of Europe as to the minimum age of criminal responsibility. Even if England and Wales is among the few European jurisdictions to retain a low age of criminal responsibility, the age of ten cannot be said to be so young as to differ disproportionately from the age-limit followed by other European States. The Court concludes that the attribution of criminal responsibility to the applicant does not in itself give rise to a breach of Article 3 of the Convention. 3.6 COINCIDENCE OF ACTUS REUS AND MENS REA Establishing criminal liability normally involves the prosecution in proving that there was a coincidence of the actus reus and the mens rea for the offence in question. In the vast majority of cases the coincidence is evident from the facts. In some cases, however, the courts have had to deal with arguments based on non-coincidence and, as the following extracts indicate, they have responded by developing a somewhat elastic concept of coincidence. Thabo Meli and Others v R [1954] 1 WLR 228 (PC) Lord Reid: The four appellants in this case were convicted of murder . . . The appeal which has been heard by this Board dealt with two matters: first, whether the conclusions of the learned judge on questions of fact were warranted: and, second, whether, on a point of law, the accused are entitled to have the verdict quashed. On the first matter, there really is no ground for criticising the learned judge’s treatment of the facts. It is established by evidence, which was believed and which is apparently credible, that there was a preconceived plot on the part of the four accused to bring the deceased man to a hut and there to kill him, and then fake an accident, so that the accused should escape the penalty for their act. The deceased man was brought to the hut. He was there treated to beer and was at least partially intoxicated; and he was then struck over the head in accordance with the plan of the accused. Witnesses say that while the deceased was seated and bending forward he was struck a heavy blow on the back of the head with a piece of iron like the instrument produced at the trial. But a post mortem examination showed that his skull had not been fractured and medical evidence was to the effect that a blow such as the witnesses described would have produced more severe injuries than those found at the post mortem examination. There is at least doubt whether the weapon which was produced as being like the weapon which was used could have produced the injuries that were found, but it may be that this weapon is not exactly similar to the one which was used, or it may be that the blow was a glancing blow and produced less severe injuries than those which one might expect. In any event, the man was unconscious after receiving the blow, 98 MENS REA: THE MENTAL ELEMENT but he was not then dead. There is no evidence that the accused then believed that he was dead, but their Lordships are prepared to assume from their subsequent conduct that they did so believe; and it is only on that assumption that any statable case can be made for this appeal. The accused took out the body, rolled it over a low krantz or cliff, and dressed up the scene to make it look like an accident. Obviously, they believed at that time that the man was dead, but it appears from the medical evidence that the injuries which he received in the hut were not sufficient to cause the death and that the final cause of his death was exposure when he was left unconscious at the foot of the krantz. The point of law which was raised in this case can be simply stated. It is said that two acts were done: first, the attack in the hut; and, second, the placing of the body outside afterwards; and that they were separate acts. It is said that, while the first act was accompanied by mens rea, it was not the cause of death; but that the second act, while it was the cause of death, was not accompanied by mens rea; and on that ground, it is said that the accused are not guilty of murder, though they may have been guilty of culpable homicide. It is said that the mens rea necessary to establish murder is an intention to kill, and that there could be no intention to kill when the accused thought that the man was already dead, so their original intention to kill had ceased before they did the act which caused the man’s death. It appears to their Lordships impossible to divide up what was really one series of acts in this way. There is no doubt that the accused set out to do all these acts in order to achieve their plan, and as parts of their plan; and it is much too refined a ground of judgment to say that, because they were under a misapprehension at one stage and thought that their guilty purpose had been achieved before, in fact, it was achieved, therefore they are to escape the penalties of the law. Their Lordships do not think that this is a matter which is susceptible of elaboration. There appears to be no case, either in South Africa or England, or for that matter elsewhere, which resembles the present. Their Lordships can find no difference relevant to the present case between the law of South Africa and the law of England; and they are of opinion that by both laws there can be no separation such as that for which the accused contend. Their crime is not reduced from murder to a lesser crime merely because the accused were under some misapprehension for a time during the completion of their criminal plot. Their Lordships must, therefore, humbly advise Her Majesty that this appeal should be dismissed. Attorney General’s Ref (No 4 of 1980) [1981] 1 WLR 705 (CA) Ackner LJ: . . . this reference raises a single simple question, viz if an accused kills another by one or other of two or more different acts each of which, if it caused the death, is a sufficient act to establish manslaughter, is it necessary in order to found a conviction to prove which act caused the death? The answer to that question is No, it is not necessary to found a conviction to prove which act caused the death. No authority is required to justify this answer, which is clear beyond argument, as was indeed immediately conceded by counsel on behalf of the accused. What went wrong in this case was that counsel made jury points to the judge and not submissions of law. He was in effect contending that the jury should not convict of manslaughter if the death had resulted from the ‘fall’, because the push which had projected the deceased over the 99 CASES AND MATERIALS ON CRIMINAL LAW handrail was a reflex and not a voluntary action, as a result of her digging her nails into him. If, however, the deceased was still alive when he cut her throat, since he then genuinely believed her to be dead, having discovered neither pulse nor sign of breath, but frothy blood coming from her mouth, he could not be guilty of manslaughter because he had not behaved with gross criminal negligence. What counsel and the judge unfortunately overlooked was that there was material available to the jury which would have entitled them to have convicted the accused of manslaughter, whichever of the two sets of acts caused her death. It being common ground that the deceased was killed by an act done to her by the accused and it being conceded that the jury could not be satisfied which was the act which caused the death, they should have been directed in due course in the summing up, to ask themselves the following questions: (1) Are we satisfied beyond reasonable doubt that the deceased’s ‘fall’ downstairs was the result of an intentional act by the accused which was unlawful and dangerous? If the answer was No, then they would acquit. It the answer was Yes, then they would need to ask themselves a second question, namely (2) Are we satisfied beyond reasonable doubt that the act of cutting the girl’s throat was an act of gross criminal negligence? If the answer to that question was No, then they would acquit, but if the answer was Yes, then the verdict would be guilty of manslaughter. The jury would thus have been satisfied that, whichever act had killed the deceased, each was a sufficient act to establish the offence of manslaughter. The fact of this case did not call for a ‘series of acts direction’ following the principle in Thabo Meli v R . . . R v Le Brun [1992] 1 QB 61 (CA) Lord Lane CJ: . . . Problems of causation and remoteness of damage are never easy of solution. We have had helpful arguments from both counsel on this point, the point in the present case being, to put it in summary before coming to deal with it in more detail, that the intention of the appellant to harm his wife one way or another may have been separated by a period of time from the act which in fact caused the death, namely the fact of her falling to the ground and fracturing her skull. The second incident may have taken place without any guilty mind of the part of the appellant. The authors of Smith and Hogan, Criminal Law, 6th edn, 1988, p 320, say: An intervening act by the original actor will not break the chain of causation so as to excuse him, where the intervening act is part of the same transaction, but it is otherwise if the act which causes the actus reus is part of a completely different transaction. For example, D, having wounded P, visits him in hospital and accidentally infects him with smallpox of which he dies. The problem in the instant case can be expressed in a number of different ways, of which causation is one. Causation on the facts as the jury in this case must have found them – I say at the best from the point of view of the appellant – is in one sense clear. Death was caused by the victim’s head hitting the ground as she was being dragged away by the appellant. The only remoteness was that between the initial unlawful blow and the later moment when the skull was fractured causing death. The question can be perhaps framed in this way. There was here an initial unlawful blow to 100 MENS REA: THE MENTAL ELEMENT the chin delivered by the appellant. That, again on what must have been the jury’s finding, was not delivered with the intention of doing really serious harm to the wife. The guilty intent accompanying that blow was sufficient to have rendered the appellant guilty of manslaughter, but not murder, had it caused death. But it did not cause death. What caused death was the later impact when the wife’s head hit the pavement. At the moment of impact the appellant’s intention was to remove her, probably unconscious body to avoid detection. To that extent the impact may have been accidental. May the earlier guilty intent be joined with the later non-guilty blow which caused death to produce in the conglomerate a proper verdict of manslaughter? [In] the present case . . . death . . . was not the result of a preconceived plan which went wrong . . . Here the death, again assuming the jury’s finding to be such as it must have been, was the result of an initial unlawful blow, not intended to cause serious harm, in its turn causing the appellant to take steps possibly to evade the consequences of his unlawful act. During the taking of those steps he commits the actus reus but without the mens rea necessary for murder or manslaughter. Therefore the mens rea is contained in the initial unlawful assault, but the actus reus is the eventual dropping of the head onto the ground. Normally the actus reus and mens rea coincide in point of time. What is the situation when they do not? Is it permissible, as the prosecution contend here, to combine them to produce a conviction for manslaughter? . . . It seems to us that where the unlawful application of force and the eventual act causing death are parts of the same sequence of events, the same transaction, the fact that there is an appreciable interval of time between the two does not serve to exonerate the defendant from liability. That is certainly so where the appellant’s subsequent actions which caused death, after the initial unlawful blow, are designed to conceal his commission of the original assault. It would be possible to express the problem as one of causation. The original unlawful blow to the chin was a causa sine qua non of the later actus reus. It was the opening event in a series which was to culminate in death: the first link in the chain of causation, to use another metaphor. It cannot be said that the actions of the appellant in dragging the victim away with the intention of evading liability broke the chain which linked the initial blow with the death. In short, in circumstances such as the present, which is the only concern of this court, the act which causes death, and the necessary mental state to constitute manslaughter, need not coincide in point of time . . . Attorney General’s Ref (No 3 of 1994) [1997] 3 All ER 936 The facts are set out in an extract at 3.7 below dealing with the issue of transferred malice. Lord Mustill: The existence of an interval of time between the doing of an act by the defendant with the necessary wrongful intent and its impact on the victim in a manner which leads to death does not in itself prevent the intent, the act and the death from together amounting to murder, so long as there is an unbroken causal connection between the act and the death. If authority is needed for this obvious proposition it may be found in R v Church . . . and R v Le Brun . . . 101 CASES AND MATERIALS ON CRIMINAL LAW Lord Hope: As Lord Lane CJ observed in R v Le Brun . . . following R v Church . . . the act which caused the death and the mental state which is needed to constitute manslaughter need not coincide in point of time. So to this extent as least it may be said to be immaterial that the child was not alive when the defendant stabbed the mother with the intention which was needed to show that he was committing an unlawful act. It is enough that the original unlawful and dangerous act, to which the required mental state is related, and the eventual death of the victim are both part of the same sequence of events. 3.7 TRANSFERRED MALICE Under the doctrine of transferred malice if A fires a gun at B, intending to kill him, and he misses, but succeeds in killing a bystander C, A cannot deny that he had the mens rea for murder. This could be explained by saying that the identity of the victim in homicide is no part of the mens rea (that is, the mens rea is intention to kill or do grievous bodily harm to a person – not a named individual). It can also, however, be expressed in terms of the ‘malice’ aimed at B being transferred to the actual victim, C. The same principle is applied to property offences. R v Pembliton (1874) LR 2 CCR 119 Lord Coleridge CJ: I am of opinion that the conviction should be quashed. The facts of the case are that there was fighting going on in the streets of Wolverhampton near the prosecutor’s house, and the prisoner, after fighting for some time, separated himself from the crowd and threw a stone, which missed the person he aimed at, but struck and broke a window, doing damage to the extent of upwards of £5. The question is, whether under an indictment for unlawfully and maliciously injuring the property of the owner of the plate-glass window, these facts will support the indictment when coupled with the other facts found by the jury, that the prisoner threw the stone at the people intending to strike one or more of them, but not intending to break a window. I am of opinion that the evidence does not support the conviction. The indictment is under the 24 and 25 Vict c 97, s 51, which deals with malicious injuries to property, and the section expressly says that the act is to be unlawful and malicious. There is also the 58th section, which makes it immaterial whether the offence has been committed from malice against the owner of the property or otherwise, that is, from malice against someone not the owner of the property. In both these sections it seems to me that what is intended by the statute is a wilful doing of an intentional act. Without saying that if the case had been left to them in a different way the conviction could not have been supported, if, on these facts the jury had come to a conclusion that the prisoner was reckless of the consequence of his act, and might reasonably have expected that it would result in breaking the window, it is sufficient to say that the jury have expressly found the contrary. I do not say anything to throw doubt on the rule under the common law in cases of murder which has been referred to, but the principles laid down in such cases have no application to the statutable offence we have to consider. 102 MENS REA: THE MENTAL ELEMENT R v Latimer (1886) 17 QB 359 (CCR) The defendant aimed a blow with his belt at one person, striking him slightly. The belt also struck someone else, causing a severe wound. The court had to decide whether A could be guilty of unlawfully wounding C where A intends to strike B but strikes C instead. Lord Coleridge CJ: . . . It is common knowledge that a man who has an unlawful and malicious intent against another, and, in attempting to carry it out, injures a third person, is guilty of what the law deems malice against the person injured, because the offender is doing an unlawful act, and has that which the judges call general malice, and that is enough . . . [His Lordship then referred to R v Hunt 1 Moo CC 93 and said:] There a man intended to injure A, and said so, and, in the course of doing it, stabbed the wrong man, and had clearly malice in fact, but no intention of injuring the man who was stabbed. He intended to do an unlawful act, and in the course of doing it the consequence was that somebody was injured . . . Lord Esher MR: I am of the same opinion. The only case which could be cited against the well-known principle of law applicable to this case was R v Pembliton (1874) Law Rep 2 CC 119, but, on examination, it is found to have been decided on this ground, viz that there was no intention to injure any property at all. It was not a case of attempting to injure one man’s property and injuring another’s, which would have been wholly different. Bowen LJ: I am of the same opinion. It is quite clear that the act was done by the prisoner with malice in his mind. I use the word ‘malice’ in the common law sense of the term, viz a person is deemed malicious when he does an act which he knows will injure either the person or property of another. The only case that could be cited for the prisoner is R v Pembliton (1874) Law Rep 2 CC 119, which was founded not upon malice in general, but upon a particular form of malice, viz malicious injury to property; and the court held that though the prisoner might have been acting maliciously in the common law sense of the term, he was not malicious in the sense of the Act directed against malicious injury to property. That decision does not apply to a case under the Act where the indictment is for injury to the person. R v Pembliton might have been ground for an argument of some plausibility if the prisoner meant to strike at a pane of glass and had hit a person. It might have been that the malice in that case was not enough. But when, as here, an intent to injure a person is proved, that is enough. Manisty J: I will add only a few words, for all has been said that could be said, but the facts of this case, no doubt, raise an exceedingly important question, for the man Chapple, whom the prisoner intended to strike, and who was struck, with the belt, was standing close by the woman, and the belt bounded off and struck the prosecutrix. It seems to me that the first and second findings of the jury are quite sufficient to justify the verdict, for they find that the blow was unlawful and malicious, and that it wounded the prosecutrix. That being so, the third finding does not entitle the prisoner to acquittal. The third finding is that the striking of the prosecutrix was purely an accident, and so it was in one sense. The prisoner did not intend to strike her, but in the unlawful and malicious act of striking Chapple the prisoner did unlawfully and maliciously wound the prosecutrix, and the third finding is quite immaterial. 103 CASES AND MATERIALS ON CRIMINAL LAW Attorney General’s Ref (No 3 of 1994) [1997] 3 All ER 936 Lord Mustill: My Lords . . . As will appear, the events which founder the appeal were never conclusively proved at the trial, but are assumed to have been as follows. At the time in question a young woman M was pregnant, with between 22 and 24 weeks of gestation. According to the present state of medical knowledge if her baby had been born after 22 weeks it would not have had any significant prospect of survival. Two further weeks would have increased the chance to about 10 per cent. The pregnancy was, however, proceeding normally, and the risk that it would fail to continue to full term and be followed by an uneventful birth was very small indeed. Sadly, however, the natural father B quarrelled with M and stabbed her in the face, back and abdomen with a long-bladed kitchen knife in circumstances raising a prima facie inference that he intended to do her grievous bodily harm. M was admitted to hospital for surgical treatment and was later discharged in an apparently satisfactory state, still carrying the baby. Unfortunately, some 17 days after the incident M went into premature labour. The baby, named S, was born alive.The birth was still grossly premature, although by that time the chance that the baby would survive had increased to 50 per cent. Thereafter S lived for 121 days, when she succumbed to broncho-pulmonary dysplasia from the effects of premature birth. After her birth it was discovered that one of the knife cuts had penetrated her lower abdomen. The wound needed surgical repair, but it is agreed that this ‘made no provable contribution to her death’. The case for the Crown at the trial of B was that the wounding of M by B had set in train the events which caused the premature birth of S and hence her failure to achieve the normal prospect of survival which she would have had if the pregnancy had proceeded to full term. In this sense, therefore, we must assume that the wounding of M, at a time when S was a barely viable foetus, was the reason why she later died when she did. Meanwhile, B had been prosecuted for an offence of wounding the mother with intent to cause her grievous bodily harm, had pleaded guilty and had been sentenced to a term of four years’ imprisonment. After S died he was charged again, this time with the murder of S, to which he pleaded not guilty. At his trial a submission was advanced that on the evidence no criminal offence relating to S was proved. In a considered ruling the trial judge upheld that submission, as regards the offences of both murder and manslaughter. I leave aside the first submission for the defence, to the effect that causation between the wounding of the mother, the premature birth and the subsequent death of S had not been established on the evidence. This failed before the judge and has not been renewed. The gist of the ruling lay in the law, and was to the effect that both the physical and the mental elements of murder were absent.There was no relevant actus reus, for the foetus was not a live person; and the cause of the death was the wounding of the mother, not of S. As to mens rea again there was none. When B stabbed the mother he had no intent to kill or do serious harm to any live person other than the mother, or to do any harm at all to the foetus. The Crown could not make good this deficiency by reliance on the concept of ‘transferred malice’, for this operates only where the mens rea of one crime causes the actus reus of the same crime, albeit the result is in some respects unintended. Here, the intent to stab the mother (a live person) could not be transferred to the foetus (not a live person), an organism which could not be the victim of a crime of murder. As to the alternative verdict of manslaughter the judge was at first exercised by the possibility that since the stabbing of M was an unlawful and dangerous act which led to the death of S a 104 MENS REA: THE MENTAL ELEMENT conviction could be sustained even though the act was not aimed at the ultimate victim: see R v Mitchell [1983] QB 741. In the end, however, he was persuaded that this approach could not be sustained where there was at the material time no victim capable of dying as a direct and immediate result. Accordingly, the trial judge directed the jury to acquit the defendant. Considering that this ruling should be reviewed the Attorney General referred the matter to the opinion of the Court of Appeal under s 36 of the Criminal Justice Act 1972. The point of law referred was as follows: 1.1 Subject to the proof by the prosecution of the requisite intent in either case: whether the crimes of murder or manslaughter can be committed where unlawful injury is deliberately inflicted: (i) to a child in utero; (ii) to a mother carrying a child in utero where the child is subsequently born alive, enjoys an existence independent of the mother, thereafter dies and the injuries inflicted while in utero either caused or made a substantial contribution to the death. 1.2 Whether the fact that the death of the child is caused solely as a consequence of injury to the mother rather than as a consequence of direct injury to the foetus can negative any liability for murder or manslaughter in the circumstances set out in question 1.1. . . . In the result, the [Court of Appeal] answered the first of the referred questions in the affirmative, adding, at 598: The requisite intent to be proved in the case of murder is an intention to kill or cause really serious bodily injury to the mother, the foetus before birth being viewed as an integral part of the mother. Such intention is appropriately modified in the case of manslaughter. The court answered the second question in the negative, provided the jury is satisfied that causation is proved. The accused person now brings the matter before this House, and maintains that the answers given to both questions were wrong, and that the ruling of the trial judge was right . . . (a) Established rules The able arguments of counsel were founded on a series of rules which, whatever may be said about their justice or logic, are undeniable features of the criminal law today. I will begin by stating them. Next, I shall describe two different ways in which the arguments for the Crown build on these rules, and will follow with reasons for rejecting one of these quite summarily. Closer examination is needed for the other, to see whether its historical origins are sound. Finally, an attempt will be made to see whether a principled answer can be given to the questions posed by the Attorney General. I perceive the established rules to be as follows . . . [In Rule 1 Lord Mustill summarised the mens rea for murder.] . . . 2 If the defendant does an act with the intention of causing a particular kind of harm to B, and unintentionally does that kind of harm to V, then the intent to harm B may be added to the harm actually done to V in deciding whether the defendant has committed a crime towards V. This rule is usually referred to as the doctrine of ‘transferred malice’, a misleading label but one which is too firmly entrenched to be discarded. Nor would it be possible now to question the rule itself, for although the same handful of authorities are called up repeatedly in the texts they are constantly cited without disapproval . . . Counsel rightly did not seek to deny the existence of the rule although, here again, it will be necessary to examine its rationale . . . [Rule 3 dealt with the proposition that a foetus could not be the victim of a crime of violence; Rule 4 105 CASES AND MATERIALS ON CRIMINAL LAW with coincidence of actus reus and mens rea; and Rule 5 with the proposition that violence towards a foetus that results in harm suffered by the baby once born can give rise to criminal liability.] I prefer, so far as binding authority permits, to start afresh, and to do so by reference to the second of the arguments advanced by the Attorney General. This builds on the rules stated above by the following stages. If D struck X intending to cause her serious harm, and the blow, in fact, caused her death, that would be murder (Rule 1). If she had been nursing a baby Y which was accidentally struck by the blow and consequently died, that would also be murder (Rules 1 and 2). So, also, if an evil-doer had intended to cause harm but not death to X by giving her a poisoned substance and the substance was, in fact, passed on by X to the baby, which consumed it and died as a result (Rules 1, 2, and 3). Again, it would have been murder if the foetus had been injured in utero and had succumbed to the wound after being born alive (Rules 1, 2, 4 and 5). It is only a short step to make a new rule, adding together the malice towards the mother, the contemporaneous starting of a train of events, and the coming to fruition of those events in the death of the baby after being born alive. My Lords, the attractions of this argument are plain, not least its simplicity. But for my part I find it too dependent on the piling up of old fictions, and too little on the reasons why the law takes its present shape. To look for these reasons is not, to use an expression sometimes met, ‘legal archaeology’ for its own sake. Except in those cases, of which the present is not one, where the rationale of the existing law is plain on its face, the common law must build for the future with materials from the past. One cannot see where a principle should go without an idea of where it has come from . . . I turn to the second rule, of ‘transferred malice’. For present purposes this is more important and more difficult. Again, one must look at its origins to see whether they provide a theme which can be applied today. Three of them are familiar.Taking Lord Coke’s example of the glancing arrow we have seen how one explanation of the poacher’s responsibility founded on the notion of risk. The person who committed a crime took the chance that the outcome would be worse than he expected. Amongst many sources one can find the idea in Russell on Crime, 4th edn (1845), p 739: If an action, unlawful in itself, be done deliberately, and with the intention of mischief or great bodily harm to particular individuals, or of mischief indiscriminately, fall where it may, and death ensue or beside the original intention of the party, it will be murder. In a later edition (1855, p 759) this was exemplified by cases of particular malice to one individual falling by mistake upon another. In support are cited R v Saunders (1573) 2 Plowd 473 (a poisoned apple intended for the mother but given to the child) and Gore 9 Co Rep 81 (medicine poisoned by the wife to kill her husband and consumed by the apothecary to prove his innocence); also 1 Hawkins PC, c 31, 545 and 1 Hale 436. As already suggested, this doctrine does survive in some small degree today, but as the foundation of a modern doctrine of transferred malice broad enough to encompass the present case it seems to me quite unsupportable. Secondly, there is the reversed burden of proof whereby the causing of death is prima facie murder, unless it falls within one of the extenuating categories recognised by the institutional writers. Again, this concept is long out of date. Nobody could seriously think of using it to make new law. Third, there was the idea of ‘general malice’, of an evil disposition existing in the general and manifesting itself in the particular, uniting the aim of the offender and the result which his deeds 106 MENS REA: THE MENTAL ELEMENT actually produced. According to this theory, there was no need to ‘transfer’ the wrongful intent from the intended to the actual victim; for since the offender was (in the words of Blackstone) ‘an enemy to all mankind in general’, the actual victim was the direct object of the offender’s enmity. Plainly, this will no longer do, for the last vestiges of the idea disappeared with the abolition of the murder/felony doctrine. What explanation is left: for explanation there must be, since the ‘transferred malice’ concept is agreed on both sides to be sound law today? The sources in more recent centuries are few. Of the two most frequently cited the earlier is R v Pembliton . . . The ancient origins of this argument need no elaboration, and indeed the report of the argument as it developed showed that it was based on a conception of general malice. The interventions in argument are instructive. After the prosecutor had relied on the fact that the prisoner was actuated by malice, Blackburn J responded: ‘But only of a particular kind, and not against the person injured.’ Later, in reply to a reliance on a passage from Hale the same judge said: Lord Coke, 3 Inst, p 56, puts the case of a man stealing deer in a park, shooting at the deer, and by the glance of the arrow killing a boy that is hidden in a bush, and calls this murder; but can anyone say that ruling would be adopted now? This most learned of judges continued: I should have told the jury that if the prisoner knew there were windows behind, and that the probable consequence of his act would be to break one of them, that would be evidence for them of malice. The conviction was quashed. It is sufficient to quote briefly from the judgment of Blackburn J: We have not now to consider what would be malice aforethought to bring a given case within the common law definition of murder; here the statute says that the act must be unlawful and malicious . . . the jury might perhaps have found on this evidence that the act was malicious, because they might have found that the prisoner knew that the natural consequence of his act would be to break the glass, and although that was not his wish, yet he was reckless whether he did it or not; but the jury have not so found . . . This decision was distinguished in R v Latimer . . . [see above] . . . [members of the court] . . . were able to distinguish Pembliton which, as Bowen LJ put the matter: ‘was founded not upon malice in general but on a particular form of malice, viz, malicious injury to property . . .’ My Lords, I find it hard to base a modern law of murder on these two cases.The court in Latimer was, I believe, entirely justified in finding a distinction between their statutory backgrounds and one can well accept that the answers given, one for acquittal, the other for conviction, would be the same today. But the harking back to a concept of general malice, which amounts to no more than this, that a wrongful act displays a malevolence which can be attached to any adverse consequence, has long been out of date. And to speak of a particular malice which is ‘transferred’ simply disguises the problem by idiomatic language. The defendant’s malice is directed at one objective, and when after the event the court treats it as directed at another object it is not recognising a ‘transfer’ but creating a new malice which never existed before. As Dr Glanville Williams pointed out (Criminal Law, the General Part, 2nd edn (1961), p 184) the doctrine is ‘rather an arbitrary exception to general principles’. Like many of its kind this is useful enough to yield rough justice, in particular cases, and it can sensibly be retained notwithstanding its lack of any sound intellectual basis. But it is another matter to build a new rule upon it. 107 CASES AND MATERIALS ON CRIMINAL LAW I pause to distinguish the case of indiscriminate malice from those already discussed, although even now it is sometimes confused with them. The terrorist who hides a bomb in an aircraft provides an example.This is not a case of ‘general malice’ where under the old law any wrongful act sufficed to prove the evil disposition which was taken to supply the necessary intent for homicide. Nor is it transferred malice, for there is no need of a transfer.The intention is already aimed directly at the class of potential victims of which the actual victim forms part. The intent and the actus reus completed by the explosion are joined from the start, even though the identity of the ultimate victim is not yet fixed. So also with the shots fired indiscriminately into a crowd. No ancient fictions are needed to make these cases of murder . . . The fourth rule is an exception to the generally accepted principle that actus reus and mens rea must coincide. A continuous act or continuous chain of causes leading to death is treated by the law as if it happened when first initiated.The development of this into the fifth rule, which links an act and intent before birth with a death happening after a live delivery, causes a little more strain, given the incapacity of the foetus to be the object of homicide. If, however, it is possible to interpret the situation as one where the mental element is directed, not to the foetus but to the human being when and if it comes into existence, no fiction is required. My Lords, the purpose of this enquiry has been to see whether the existing rules are based on principles sound enough to justify their extension to a case where the defendant acts without an intent to injure either the foetus or the child which it will become. In my opinion they are not. To give an affirmative answer requires a double ‘transfer’ of intent: first from the mother to the foetus and then from the foetus to the child as yet unborn.Then one would have to deploy the fiction (or at least the doctrine) which converts an intention to commit serious harm into the mens rea of murder. For me, this is too much. If one could find any logic in the rules I would follow it from one fiction to another, but whatever grounds there may once have been have long since disappeared. I am willing to follow old laws until they are overturned, but not to make a new law on a basis for which there is no principle. Moreover, even on a narrower approach the argument breaks down. The effect of transferred malice, as I understand it, is that the intended victim and the actual victim are treated as if they were one, so that what was intended to happen to the first person (but did not happen) is added to what actually did happen to the second person (but was not intended to happen), with the result that what was intended and what happened are married to make a notionally intended and actually consummated crime. The cases are treated as if the actual victim had been the intended victim from the start. To make any sense of this process there must, as it seems to me, be some compatibility between the original intention and the actual occurrence, and this is, indeed, what one finds in the cases.There is no such compatibility here. The defendant intended to commit and did commit an immediate crime of violence to the mother. He committed no relevant violence to the foetus, which was not a person, either at the time or in the future, and intended no harm to the foetus or to the human person which it would become. If fictions are useful, as they can be, they are only damaged by straining them beyond their limits. I would not overstrain the idea of transferred malice by trying to make it fit the present case. 3.7.1 CODIFICATION AND LAW REFORM PROPOSALS The Law Commission’s Report Legislating the Criminal Code: Offences Against the Person and General Principles (1993) (Law Com 218) sought to codify the doctrine of transferred 108 MENS REA: THE MENTAL ELEMENT malice – see clause 32. A slightly amended version now appears in the draft Offences Against the Person Bill appended to the Home Office Consultation Paper, clause 17 of which provides: 17(1) This section applies in determining whether a person is guilty of an offence under this Act. (2) A person’s intention or awareness of a risk that his act will cause, a result in relation to a person capable of being the victim of the offence must be treated as an intention to cause or (as the case may be) awareness of a risk that his act cause, that result in relation to any other person affected by his act. (3) A person’s intention, or awareness of a risk, that his omission will have a result in relation to a person capable of being the victim of the offence must be treated as an intention or (as the case may be) awareness of a risk that his omission will have that result in relation to any other person affected as a result of his omission. Given the close similarity between the Law Commission’s proposed clause 32 in Law Com 218, and the provisions in the Home Office Bill, it is instructive to note the commentary on the transferred malice clause originally provided in Law Com 218. 42.1 Clause 25 of the Bill accompanying LCCP 122 restated, in the most general terms and not only in relation to offences against the person, the common law doctrine known as ‘transferred intent’ (subsection (1)), and provided a corresponding rule for ‘transferred’ defences. We received very little comment on the clause, and are satisfied, in particular, that the formulation of subsection (1) accurately represents the current law. Both subsections appear unchanged in clause 32 of the final draft Bill. Accordingly, the following explanation of the clause repeats in substance that which we gave in LCCP 122 . . . 42.3 The clause assumes that the specified result, such as serious injury, or damage to property belonging to another, is an element of a specific offence. If the actor does not cause such a result, the external elements of the offence with which he is charged are not made out. Accordingly, no question of criminal liability arises. It is only when the external elements of the offence charged have been caused by the defendant that the second question arises, of whether he acted with the fault required for that offence. This clause provides that if he acted with that fault, it can be transferred. What is required is a concurrence of fault in relation to the result specified for the offence and the occurrence of such a result, although not in relation to the same person or thing. 42.4 The equivalent clause in the Draft Code referred in terms to ‘recklessness’ and not, like the draft in LCCP 122 or clause 32 of the Criminal Law Bill, to ‘awareness of a risk’. ‘Recklessness’ will have a prescribed meaning under the Bill for the purposes of offences against the person, but will continue to have its other meaning or meanings in other contexts. It is therefore necessary to avoid the term in a provision of general application. The only state of mind, other than intention, with which the subsection needs to deal is awareness of a risk. It is this aspect of recklessness that may call for ‘transfer’. The provision is not needed in relation to the limb of Caldwell recklessness concerned with failure to advert to an obvious risk. In order to apply that limb to (for example) the causing of damage to the property actually affected, it is sufficient to ask: was there an obvious risk that that property (or such property) would be damaged and did the defendant fail to advert to that risk? It is irrelevant that there was a risk to other property of which the defendant should have been, but was not, aware. 109 CASES AND MATERIALS ON CRIMINAL LAW 42.5 Awareness of a relevant risk does not alone establish recklessness. It is necessary also that the risk be one that it was unreasonable to take in the circumstances known to the actor. If a defendant unreasonably took a known risk in relation to X, the risk-taking in relation to Y that the subsection treats as having occurred must similarly be unreasonable before recklessness is established in relation to Y. Conversely if, in the circumstances known to the defendant, it was reasonable to take the risk in relation to X that he knowingly took, the taking of the risk in relation to Y that he is treated as having knowingly taken can hardly be regarded as reckless. 42.6 Clause 32(2) enables a person who affects an uncontemplated victim to rely on a defence that would have been available to him if he had affected the person or thing he had in contemplation. The provision will be useful for the avoidance of doubt. 3.8 STRICT LIABILITY There are certain offences where a defendant can be convicted notwithstanding that he did not have any mens rea. These offences are generally referred to as offences of strict liability. To say that these offences do not require proof of any mens rea may, however, be too sweeping. There are offences where no fault element at all arises – it is perhaps better to classify these as offences of absolute liability. Many so called strict liability offences do in fact require some mens rea in relation to some elements of the offence. The significant factor is that there may be some elements of the actus reus in relation to which no mens rea is required. When dealing with a statutory offence that is silent as to mens rea the task of the court lies in determining whether or not Parliament actually intended the offence to operate without proof of fault. The exercise is, largely, one of statutory interpretation. As the following extracts indicate, the factors taken into account by the courts can be summarised as follows: (a) There is a presumption in favour of mens rea – that is, even if the statute is silent as to mens rea the courts will assume that some is required unless there is evidence to the contrary. (b) The presumption in favour of mens rea can be rebutted by express wording in the statute or by necessary implication. (c) The presumption in favour of mens rea is stronger where the offence is truly criminal – as opposed to merely regulatory. Factors such as the stigma attaching to a conviction and the penalty imposed will be significant here. (d) The presumption in favour of mens rea may be rebutted by the subject matter of the offence, for example where the prohibition relates to a grave social danger or matter of public concern. (e) The presumption in favour of mens rea is less likely to be rebutted where there is little evidence that the imposition of strict liability will help to achieve the aims and objects of the legislation. 110 MENS REA: THE MENTAL ELEMENT 3.8.1 THE PRESUMPTION IN FAVOUR OF MENS REA: READING THE STATUTE AS A WHOLE Sweet v Parsley [1970] AC 132 (HL) The defendant was a schoolteacher who had let premises, Fries Farm, to students. A police raid of the premises found that the students were using the premises for smoking cannabis. The defendant was convicted under s 5 of the Dangerous Drugs Act 1965, which provided as follows: If a person: (a) being the occupier of any premises, permits those premises to be used for the purpose of smoking cannabis or cannabis resin or of dealing in cannabis resin (whether by sale or otherwise); or, (b) is concerned in the management of any premises used for any such purpose as aforesaid, he shall be guilty of an offence against this Act. The issue for the House of Lords was as to whether a defendant could incur liability under s 5 in the absence of any direct knowledge that the premises were being used for drug taking. Lord Morris of Borth-y-Gest: My Lords, it has frequently been affirmed and should unhesitatingly be recognised that it is a cardinal principle of our law that mens rea, an evil intention or a knowledge of the wrongfulness of the act, is in all ordinary cases an essential ingredient of guilt of a criminal offence. It follows from this that there will not be guilt of an offence created by statute unless there is mens rea or unless Parliament has by the statute enacted that guilt may be established in cases where there is no mens rea. . . . But as Parliament is supreme, it is open to Parliament to legislate in such a way that an offence may be created of which someone may be found guilty though mens rea is lacking. The intention of Parliament is expressed in the words of an enactment.The words must be looked at in order to see whether either expressly or by necessary implication they displace the general rule or presumption that mens rea is a necessary prerequisite before guilt of an offence can be found. Particular words in a statute must be considered in their setting in the statute and having regard to all the provisions of the statute and to its declared or obvious purpose . . . It must be considered, therefore, whether by the words of a penal statute it is either express or implied that there may be a conviction without mens rea or, in other words, whether what is called an absolute offence is created . . . The inquiry must be made, therefore, whether Parliament has used words which expressly enact or impliedly involve that an absolute offence is created.Though sometimes help in construction is derived from noting the presence or the absence of the word ‘knowingly’, no conclusive test can be laid down as a guide in finding the fair, reasonable and common sense meaning of language. But in considering whether Parliament has decided to displace what is a general and somewhat fundamental rule it would not be reasonable lightly to impute to Parliament an intention to create an offence in such a way that someone could be convicted of it who by all reasonable and sensible standards is without fault. . . 111 CASES AND MATERIALS ON CRIMINAL LAW If someone is concerned in management there must at least be knowledge of what it is that is being managed: otherwise there could be no concern in it. If someone is concerned in the management of a building containing a number of separately let residential flats the concern in such case would be in the arrangements for the lettings and in the arrangements relating to lifts or staircases or the structure of the building as a whole. The concern would be in the management of premises used for residential purposes. In the ordinary course of things the landlord or the manager would have no right of entry into a flat and would have no concern with any normal, reasonable and lawful activity within a flat. If a tenant, who was a non-smoker, had a guest one day who smoked a pipe of tobacco in the flat, it would be a strained and unnatural use of language to describe the flat which the tenant rented as being premises used for the purpose of smoking. It would be equally strained and unnatural to describe the landlord or his agent as being concerned in the management of premises used for the purpose of smoking. If on an isolated occasion a tenant gave a showing of some cinematograph films to his friends, it would be unreasonable to describe the manager of the flats (who had no occasion to know of the film showing) as being one who was concerned in the management of premises used for the purpose of exhibiting films. If a tenant took sugar with his tea it would be fanciful to describe the flat as premises used for the purpose of putting sugar into tea. It seems to me, therefore that the words ‘premises . . . used for the purpose of smoking cannabis’ are not happily chosen if they were intended to denote premises in which at any time cannabis is smoked. In my opinion, the words ‘premises . . . used for the purpose of . . .’ denote a purpose which is other than quite incidental or casual or fortuitous: they denote a purpose which is or has become either a significant one or a recognised one though certainly not necessarily an only one. There is no difficulty in appreciating what is meant if it is said that premises are used for the purposes of a dance hall or a billiard hall or a bowling alley or a hairdressing saloon or a cafe. A new or additional use might, however, arise. It might happen that a house let as a private dwelling might come to be used as a brothel or for the purposes of prostitution. A room let for private occupation might come to be the resort of a number of people who wished to smoke opium so that the time would come when the room could rationally be described as a room used for the purpose of smoking opium. The words ‘concerned in the management of any premises used for the purpose of’ are, in my view, to be considered together and as one phrase. Even so the phrase may be capable of two meanings. It could denote the management of premises used for a certain purpose in the sense that the management is limited to management in respect of the premises themselves. It could denote the management of premises used for a certain purpose in the sense that the management was concerned either additionally or perhaps separately with the purpose for which the premises were used. Thus, if someone is said so to be concerned in the management of premises used for the purpose of dancing, he could be someone concerned only in the management of the premises themselves, or he could be someone who additionally or possibly separately was concerned with the dancing. On either approach and with an ordinary use of words, it would seem to me that the person would be one who would have and would need to have knowledge of the use of the premises for the particular purpose . . . For the reasons that I have indicated I consider that on a fair reading of the phrase ‘concerned in the management of premises used for the purpose of’ a link is denoted between management and user for a purpose.To say that someone is concerned in the management of premises used for the purpose of smoking cannabis involves, in my view, that his management is with knowledge that the premises are so used. The wording of s 5(b) contains positive indications that mens rea is 112 MENS REA: THE MENTAL ELEMENT an essential ingredient of an offence. Even if, contrary to my view, it is not affirmatively enacted that there must be mens rea I cannot read the wording as enacting that there need not be mens rea. I find it wholly impossible to say that the statute has either clearly, or by necessary implication, ruled out mens rea as a constituent part of guilt. On the findings of the magistrates it follows that the appellant was not guilty. I would, therefore, allow the appeal. Accordingly, in my view, the case should be remitted to the Divisional Court with a direction to quash the conviction. Pharmaceutical Society of Great Britain v Storkwain Ltd [1986] 1 WLR 903 (HL) The defendants had supplied controlled drugs on production of what transpired to be a forged prescription. The House of Lords had to consider whether the relevant legislation – s 58 of the Medicines Act 1968 – could be construed so as to impose criminal liability on the defendants even though they had had no knowledge of the forgery. Lord Goff of Chieveley: My Lords, this appeal is concerned with a question of construction of s 58 of the Medicines Act 1968. Section 58(2)(a) of the Act provides: (2) Subject to the following provisions of this section: (a) no person shall sell by retail, or supply in circumstances corresponding to retail sale, a medicinal product of a description, or falling within a class specified in an order under this section except in accordance with a prescription given by an appropriate practitioner . . . By s 67(2) of the Act of 1968, it is provided that any person who contravenes, inter alia, s 58 shall be guilty of an offence.The question which has arisen for decision in the present case is whether, in accordance with the well-organised presumption, there are to be read into s 58(2)(a) words appropriate to require mens rea, on the principle stated in R v Tolson (1889) 23 QBD 168, and Sweet v Parsley [1970] AC 132. . . . it is, in my opinion, clear from the Act of 1968 that Parliament must have intended that the presumption of mens rea should be inapplicable to s 58(2)(a). First of all, it appears from the Act of 1968 that, where Parliament wished to recognise that mens rea should be an ingredient of an offence created by the Act, it has expressly so provided. Thus, taking first of all offences created under provisions of Part II of the Act of 1968, express requirements of mens rea are to be found both in s 45(2) and in s 46(1), (2) and (3) of the Act. More particularly, in relation to offences created by Part III and Parts V and VI of the Act of 1968, s 121 makes detailed provision for a requirement of mens rea in respect of certain specified sections of the Act, including ss 63–65 (which are contained in Part III), but significantly not s 58, nor indeed ss 52 and 53 . . . It is very difficult to avoid the conclusion that, by omitting s 58 from those sections to which s 121 is expressly made applicable, Parliament intended that there should be no implication of a requirement of mens rea in s 58(2)(a).This view is fortified by subsections (4) and (5) of s 58 itself. Subsection (4)(a) provides that any order made by the appropriate ministers for the purposes of s 58 may provide that s 58(2)(a) or (b), or both, shall have effect subject to such exemptions as may be specified in the order. From this subsection alone it follows that the ministers, if they think it right, can provide for 113 CASES AND MATERIALS ON CRIMINAL LAW exemption where there is no mens rea on the part of the accused. Subsection (5) provides that any exemption conferred by an order in accordance with subsection (4)(a) may be conferred subject to such conditions or limitations as may be specified in the order. From this it follows that if the ministers, acting under subsection (4), were to confer an exemption relating to sales where the vendor lacked the requisite mens rea they may nevertheless circumscribe their exemption with conditions and limitations which render the exemption far narrower than the implication for which Mr Fisher (for the defendants) contends should be read into the statute itself. I find this to be very difficult to reconcile with the proposed implication. It comes as no surprise to me, therefore, to discover that the relevant order in force at that time, the Medicines (Prescription Only) Order 1980, is drawn entirely in conformity with the construction of the statute which I favour. It is unnecessary, in the present case, to consider whether the relevant articles of the Order may be taken into account in construing s 58 of the Act of 1968; it is enough, for present purposes, that I am able to draw support from the fact that the ministers, in making the Order, plainly did not read s 58 as subject to the implication proposed by Mr Fisher. So, for example, Article 11 of the order (which is headed ‘Exemption in cases involving another’s default’) reads as follows: The restrictions imposed by s 58(2)(a) (restrictions on sale and supply) shall not apply to the sale or supply of a prescription only medicine by a person who, having exercised all due diligence believes on reasonable grounds that the product sold or supplied is not a prescription only medicine, where it is due to the act or default of another person that the product is a product to which s 58(2)(a) applies. This provision which, by including the words ‘having exercised due diligence’, provides for a narrower exemption than that which Mr Fisher has submitted should be read by implication into the statute, in the limited circumstances specified in the concluding words of the paragraph, is plainly inconsistent with the existence of any such implication. Likewise, Article 13(1) provides that, for the purposes of s 58(2)(a), a prescription only medicine shall not be taken to be sold or supplied in accordance with a prescription given by a practitioner unless certain specified conditions are fulfilled. Those conditions, which are very detailed, are set out in Article 13(2); and they all presuppose the existence of a valid prescription. Furthermore, Article 13(3) provides: The restrictions imposed by s 58(2)(a) (restrictions on sale and supply) shall not apply to a sale or supply of a prescription only medicine which is not in accordance with a prescription given by an appropriate practitioner by reason only that a condition specified in paragraph (2) is not fulfilled, where the person selling or supplying the prescription only medicine, having exercised all due diligence believes on reasonable grounds that that condition is fulfilled in relation to that sale or supply. So here again we find a provision which creates an exemption in narrower terms than that which Mr Fisher submits is to be found, by implication, in s 58(2)(a) itself. It follows that Article 13, like Article 11, of the Order is inconsistent with the existence of any such implication. For these reasons, which are substantially the same as those which are set out in the judgments of Farquharson and Tudor Price JJ in the Divisional Court [1985] 3 All ER 4, I am unable to accept the submissions advanced on behalf of the defendants. I gratefully adopt as my own the following passage from the judgment of Farquharson J, at 10: 114 MENS REA: THE MENTAL ELEMENT It is perfectly obvious that pharmacists are in a position to put illicit drugs and perhaps other medicines on the market. Happily this rarely happens but it does from time to time. It can therefore be readily understood that Parliament would find it necessary to impose a heavier liability on those who are in such a position, and make them more strictly accountable for any breaches of the Act. I would therefore answer the certified question in the negative, and dismiss the appeal with costs. B v DPP [2000] 1 All ER 833 The appellant, aged 15 at the material time, sat next to a 13 year old girl who was a passenger on a bus. The appellant asked the girl several times to perform oral sex with him. She repeatedly refused. The appellant was charged with inciting a girl under 14 to commit an act of gross indecency contrary to section 1(1) of the Indecency with Children Act 1960. The appellant pleaded not guilty, relying on the fact that he honestly believed that the girl was over 14 years. The defence argued that on the admitted facts the appellant was entitled to be acquitted. The prosecution submitted that the offence was one of strict liability. The appellant was convicted and appealed. [NB liability in this area would now be governed by the Sexual Offences Act 2003, as to which see further Chapter 6.] Lord Steyn [considering the extent to which the offence in question could be read as one that imposed strict liability]. The correct approach My Lords, it will be convenient to turn to the approach to be adopted to the construction of section 1(1) of the Act of 1960.While broader considerations will ultimately have to be taken into account, the essential point of departure must be the words of section 1(1). The language is general and nothing on the face of section 1(1) indicates one way or the other whether section 1(1) creates an offence of strict liability. In enacting such a provision Parliament does not write on a blank sheet. The sovereignty of Parliament is the paramount principle of our constitution. But Parliament legislates against the background of the principle of legality . . . Recently, in R v Secretary of State for the Home Department ex p Simms [1999] 3 WLR 328 the House applied the principle to subordinate legislation: see in particular the speeches of Lord Hoffmann (at 341F–G), myself (at 340G–H) and Lord Browne-Wilkinson (at 330E). In ex p Simms Lord Hoffmann explained the principle as follows (at 341F–G): But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. 115 CASES AND MATERIALS ON CRIMINAL LAW This passage admirably captures, if I may say so, the rationale of the principle of legality. In successive editions of his classic work Professor Sir Rupert Cross cited as the paradigm of the principle the ‘ “presumption” that mens rea is required in the case of statutory crimes’: Statutory Interpretation 3rd edn (1995), p 166. Sir Rupert explained that such presumptions are of general application and are not dependent on finding an ambiguity in the text. He said they ‘not only supplement the text, they also operate at a higher level as expressions of fundamental principles governing both civil liberties and the relations between Parliament, the executive and the courts. They operate as constitutional principles which are not easily displaced by a statutory text’. In other words, in the absence of express words or a truly necessary implication, Parliament must be presumed to legislate on the assumption that the principle of legality will supplement the text. This is the theoretical framework against which section 1(1) must be interpreted. It is now necessary to examine the practical application of the principle as explained by the House in Sweet v Parsley . . . Lord Reid drew a distinction between ‘a truly criminal act’ and acts which are not truly criminal in any real sense, but are ‘acts which in the public interest are prohibited under a penalty’: at 149F . . . he said that in cases of truly criminal acts it is wrong to take into account ‘no more than the wording of the Act and the character and seriousness of the mischief which constitutes the offence’: at 150A . . . Counsel for the Crown accepted that the approach as outlined in Sweet v Parsley, and in particular in the speech of Lord Reid, is an authoritative and accurate statement of the law. It is only necessary to refer one further decision. In Lim Chin Aik v R [1963] AC 160, at 174, the Privy Council observed that in considering how the presumption can be displaced ‘it is not enough in their Lordships’ opinions merely to label the statute as one dealing with a grave social evil and from that to infer that strict liability was intended’. Their Lordships no doubt had in mind that the prevalence of even a grave social evil does not necessarily throw light on the question of what technique was adopted to combat the evil, viz the creation of an offence of strict liability or an offence of which mens rea is an ingredient. Concentrating still on the wording of section 1(1) of the Act of 1960, I now address directly the question whether the presumption is prima facie applicable.Two distinctive features of section 1(1) must be taken into account. First, the actus reus is widely defined. Unlike the position under sections 14 and 15 of the Act of 1956, an assault is not an ingredient of the offence under section 1(1). Any act of gross indecency with or towards a child under the age of 14, or incitement to such an act, whether committed in public or private, is within its scope. The subsection is apt to cover acts of paedophilia and all responsible citizens will welcome effective legislation in respect of such a great social evil. But it also covers any heterosexual or homosexual contact between teenagers if one of them is under 14. And the actus reus extends to incitement of a child under 14: words are enough. The subsection therefore extends to any verbal sexual overtures between teenagers if one of them is under 14 . . . For the law to criminalise such conduct of teenagers by offences of strict liability would be far reaching and controversial.The second factor is that section 1(1) creates an offence of a truly criminal character. It was initially punishable on indictment by a custodial term of up to two years and by subsequent amendment the maximum term has been increased to ten years’ imprisonment. Moreover, as Lord Reid observed in Sweet v Parsley (at 146H) ‘a stigma still attaches to any person convicted of a truly criminal offence, and the more serious or more disgraceful the offence the greater the stigma.’ Taking into account the cumulative effect of these two factors, I am persuaded that, if one concentrates on the language of section 1(1), the presumption is prima facie applicable. It is, however, now necessary to examine weighty contrary arguments based on the broader context in which section 1(1) must be seen. 116 MENS REA: THE MENTAL ELEMENT Since counsel for the Crown adopted as part of his argument the reasoning of the Divisional Court, and in particular the reasoning of Rougier J, it is unnecessary to summarise the judgments. Instead I propose to examine directly the major planks of the reasoning contained in the judgments of the Divisional Court and in the submissions of counsel for the Crown. But I would respectfully record my tribute to the careful and elegant judgments in the Divisional Court . . . [Turning to the legislative policy underpinning the 1956 and 1960 Acts] Counsel for the Crown next submitted that a necessary implication negativing mens rea as an ingredient of the offence is to be found in the general legislative policy of the Act of 1956 to protect girls under the age of 16: see sections 5, 6, 14, 15, 26 and 28. It is undoubtedly right that there is a clear legislative policy prohibiting the sexual exploitation of girls. It is unquestionably a great social evil as Lord Hutton has so clearly explained. Whatever can be done sensibly and justly to stamp it out ought to be done. The real question is: what does this policy tell us about the critical question whether section 1(1) is an offence of strict liability or not? It is not enough to label the statute as one dealing with a grave social evil and from that to infer that strict liability was intended . . . Moreover, upon analysis the argument is far from compelling. It infers from the premise of the legislative policy directed against the mischief a conclusion that the legislature gave clear expression to a choice of the solution of creating an offence of strict liability rather than an offence containing mens rea as an ingredient.The cardinal principle of construction described by Lord Reid in Sweet v Parsley is not to be displaced by such speculative considerations as to the chosen legislative technique. I would reject this argument. Prince’s case Counsel for the Crown also relied on what he described as a principle of construction established in R v Prince (1875) LR 2 CCR 154. In Prince the defendant was convicted under a Victorian statute of unlawfully taking an unmarried girl under the age of 16 out of the possession of her father. The defendant bona fide and on reasonable grounds believed that the girl was over 16. The judge referred the question of the availability of the defence to the Court for Crown Cases Reserved. The court consisted of 16 judges. The prisoner was not represented. By a majority of 15 to 1 the court held that there was no such defence.The leading judgment was given by Blackburn J with the concurrence of nine other judges. Blackburn J relied strongly on a drafting flaw in sections 50 and 51 of the Offences Against the Person Act 1861. The two sections respectively provided for offences of sexual intercourse with a girl under ten (section 50) and above the age of ten years and under the age of twelve years (section 51). The first was a felony and the latter a misdemeanour. Blackburn J produced what Professor Sir Rupert Cross in a magisterial article described as a ‘knock-out’ argument: ‘Centenary reflections on Prince’s case’ (1975) 91 LQR 540. The passage in Blackburn’s J judgment reads as follows: It seems impossible to suppose that the intention of the legislature in those two sections could have been to make the crime depend upon the knowledge of the prisoner of the girl’s actual age. It would produce the monstrous result that a man who had carnal connection with a girl, in reality not quite ten years old, but whom he on reasonable grounds believed to be a little more than ten, was to escape altogether. He could not, in that view of the statute, be convicted of the felony, for he did not know her to be under ten. He could not be convicted of the misdemeanour, because she was in fact not above the age of ten. It seems to us that the intention of the legislature was to punish those who had connection 117 CASES AND MATERIALS ON CRIMINAL LAW with young girls, though with their consent, unless the girl was in fact old enough to give a valid consent.The man who has connection with a child, relying on her consent, does it at his peril, if she is below the statutable age. The 55th section, on which the present case arises, uses precisely the same words as those in sections 50 and 51, and must be construed in the same way. Eventually the distinction between felonies and misdemeanours was abolished and the drafting flaw in the earlier legislation no longer exists. The principal ground of the decision of Blackburn J has disappeared. It is true that Bramwell B gave a separate judgment in which seven judges concurred. This judgment is largely based on the view that the defendant was guilty in law because if the facts had been as he supposed he would have acted immorally. For the further reasons given by Sir Rupert Cross in his article one can be confident that the reasoning of Bramwell B, if tested in a modern court, would not be upheld: see also DPP v Morgan [1976] AC 182, at 238, per Lord Fraser of Tullybelton; and the valuable discussion by Brooke LJ of the context of Prince’s case: at 130B–32B. Significantly, Prince’s case was cited in Sweet v Parsley but was not mentioned in any of the judgments. The view may have prevailed that it was not necessary to overrule it because its basis had gone and that the principle laid down in Sweet v Parsley would in future be the controlling one. In any event, I would reject the contention that there is a special rule of construction in respect of age-based sexual offences which is untouched by the presumption as explained in Sweet v Parsley. Lord Nicholls: The construction of section 1 of the Indecency with Children Act 1960 In section 1(1) of the Indecency with Children Act 1960 Parliament has not expressly negatived the need for a mental element in respect of the age element of the offence. The question, therefore, is whether, although not expressly negatived, the need for a mental element is negatived by necessary implication. ‘Necessary implication’ connotes an implication which is compellingly clear. Such an implication may be found in the language used, the nature of the offence, the mischief sought to be prevented and any other circumstances which may assist in determining what intention is properly to be attributed to Parliament when creating the offence. I venture to think that, leaving aside the statutory context of section 1, there is no great difficulty in this case. The section created an entirely new criminal offence, in simple unadorned language. The offence so created is a serious offence. The more serious the offence, the greater is the weight to be attached to the presumption, because the more severe is the punishment and the graver the stigma which accompany a conviction. Under section 1 conviction originally attracted a punishment of up to two years’ imprisonment. This has since been increased to a maximum of ten years’ imprisonment. The notification requirements under Part I of the Sex Offenders Act 1997 now apply, no matter what the age of the offender: see Schedule 1, paragraph 1(1)(b). Further, in addition to being a serious offence, the offence is drawn broadly (‘an act of gross indecency’). It can embrace conduct ranging from predatory approaches by a much older paedophile to consensual sexual experimentation between precocious teenagers of whom the offender may be the younger of the two. The conduct may be depraved by any acceptable standard, or it may be relatively innocuous behaviour in private between two young people. These factors reinforce, rather than negative, the application of the presumption in this case. The purpose of the section is, of course, to protect children. An age ingredient was therefore an essential ingredient of the offence. This factor in itself does not assist greatly. Without more, this does not lead to the 118 MENS REA: THE MENTAL ELEMENT conclusion that liability was intended to be strict so far as the age element is concerned, so that the offence is committed irrespective of the alleged offender’s belief about the age of the ‘victim’ and irrespective of how the offender came to hold this belief. Nor can I attach much weight to a fear that it may be difficult sometimes for the prosecution to prove that the defendant knew the child was under fourteen or was recklessly indifferent about the child’s age. A well known passage from a judgment of that great jurist, Sir Owen Dixon, in Thomas v R (1937) 59 CLR 279, 309, bears repetition: The truth appears to be that a reluctance on the part of courts has repeatedly appeared to allow a prisoner to avail himself of a defence depending simply on his own state of knowledge and belief. The reluctance is due in great measure, if not entirely, to a mistrust of the tribunal of fact – the jury. Through a feeling that, if the law allows such a defence to be submitted to the jury, prisoners may too readily escape by deposing to conditions of mind and describing sources of information, matters upon which their evidence cannot be adequately tested and contradicted, judges have been misled into a failure steadily to adhere to principle. It is not difficult to understand such tendencies, but a lack of confidence in the ability of a tribunal correctly to estimate evidence of states of mind and the like can never be sufficient ground for excluding from inquiry the most fundamental element in a rational and humane criminal code. Similarly, it is far from clear that strict liability regarding the age ingredient of the offence would further the purpose of section 1 more effectively than would be the case if a mental element were read into this ingredient. There is no general agreement that strict liability is necessary to the enforcement of the law protecting children in sexual matters . . . Is there here a compellingly clear implication that Parliament should be taken to have intended that the ordinary common law requirement of a mental element should be excluded in respect of the age ingredient of this new offence? Thus far, having regard especially to the breadth of the offence and the gravity of the stigma and penal consequences which a conviction brings, I see no sufficient ground for so concluding. Indeed, the Crown’s argument before your Lordships did not place much reliance on any of the matters just mentioned. The thrust of the Crown’s argument lay in a different direction: the statutory context. This is understandable, because the statutory background is undoubtedly the Crown’s strongest point. The Crown submitted that the law in this field has been regarded as settled for well over one hundred years, ever since the decision in R v Prince (1875) LR 2 CCR 154. That well known case concerned the unlawful abduction of a girl under the age of sixteen. The defendant honestly believed she was over sixteen, and he had reasonable grounds for believing this. No fewer than fifteen judges held that this provided no defence. Subsequently, in R v Maughan (1934) 24 Cr App R 130 the Court of Criminal Appeal (Lord Hewart CJ, Avory and Roche JJ) held that a reasonable and honest belief that a girl was over sixteen could never be a defence to a charge of indecent assault. The court held that this point had been decided in R v Forde (1923) 17 Cr App R 99. The court also observed that in any event the answer was to be found in Prince’s case. Building on this foundation Mr Scrivener QC submitted that the Sexual Offences Act 1956 was not intended to change this established law, and that section 1 of the Indecency with Children Act 1960 was to be read with the 1956 Act. The preamble to the 1960 Act stated that its purpose was to make ‘further’ provision for the punishment of indecent conduct towards young people. In this field, where Parliament intended belief as to age to be a defence, this was stated expressly: see, for instance, the ‘young man’s defence’ in section 6(3) of the 1956 Act. 119 CASES AND MATERIALS ON CRIMINAL LAW This is a formidable argument, but I cannot accept it. I leave on one side Mr O’Connor QC’s sustained criticisms of the reasoning in Prince’s case and Maughan’s case. Where the Crown’s argument breaks down is that the motley collection of offences, of diverse origins, gathered into the Sexual Offences Act 1956 displays no satisfactorily clear or coherent pattern. If the interpretation of section 1 of the Act of 1960 is to be gleaned from the contents of another statute, that other statute must give compelling guidance. The Act of 1956 as a whole falls short of this standard. So do the two sections, sections 14 and 15, which were the genesis of section 1 of the Act of 1960. Accordingly, I cannot find, either in the statutory context or otherwise, any indication of sufficient cogency to displace the application of the common law presumption. In my view the necessary mental element regarding the age ingredient in section 1 of the Act of 1960 is the absence of a genuine belief by the accused that the victim was fourteen years of age or above. The burden of proof of this rests upon the prosecution in the usual way. If Parliament considers that the position should be otherwise regarding this serious social problem, Parliament must itself confront the difficulties and express its will in clear terms. I would allow this appeal. I add a final observation. As just mentioned, in reaching my conclusion I have left on one side the criticisms made of Prince’s case and Maughan’s case. Those cases concerned different offences and different statutory provisions. The correctness of the decisions in those cases does not call for decision on the present appeal. But, without expressing a view on the correctness of the actual decisions in those cases, I must observe that some of the reasoning in Prince’s case is at variance with the common law presumption regarding mens rea as discussed above. To that extent, the reasoning must be regarded as unsound. For instance, Bramwell B (at p 174) seems to have regarded the common law presumption as ousted because the act forbidden was ‘wrong in itself’. Denman J (at p 178) appears to have considered it was ‘reasonably clear’ that the Act of 1861 was an Act of strict liability so far as the age element was concerned. On its face this is a lesser standard than necessary implication. And in the majority judgment, Blackburn J reached his conclusion by inference from the intention Parliament must have had when enacting two other, ineptly drawn, sections of the Act. But clumsy parliamentary drafting is an insecure basis for finding a necessary implication elsewhere, even in the same statute. Prince’s case, and later decisions based on it, must now be read in the light of this decision of your Lordships’ House on the nature and weight of the common law presumption. Lord Hutton: . . . the Act of 1960 is an appendix to the Act of 1956, and the wording of sections 5 and 6 of the 1956 Act relating respectively to intercourse with a girl under thirteen and to intercourse with a girl under sixteen, but with the latter section providing in subsection (3) for ‘the young man’s defence’, makes it plain that the offence under section 5 is an offence of strict liability. Therefore it is clear that in the Act of 1956 Parliament intended that there should be strict liability when a man had sexual intercourse with a girl under thirteen, and accordingly it can be argued that it is in accordance with the intention of Parliament that there should be strict liability when a person is guilty of gross indecency towards a child under fourteen. The second point is that in addition to section 6(3) there are a number of sections in the Act of 1956 which expressly provide for a defence of mistake. In the case of intercourse with a woman who is a defective section 7(2) provides a defence if the man does not know and has no reason to suspect the woman to be a defective. The same applies to the offence of procurement of a defective: see section 9(2). The same defence applies to indecent assault on a woman defective: see section 14(4). The same defence is available in respect of permitting a defective to use premises for 120 MENS REA: THE MENTAL ELEMENT intercourse or causing or encouraging the prostitution of a defective: see section 27(2) and section 29(2). Therefore the Crown can argue with considerable force that when Parliament intends that there should be a defence of mistake it makes express provision for this defence, so that where there is no express provision for such a defence the statute by implication intends that the defence will not be available. This point is well stated by Tucker J in his judgment at p 127H: I deduce from all these statutory provisions that it is the clear intention of Parliament to protect young children and to make it an offence to commit offences against children under a certain age whether or not the defendant knows of the age of the victim, and that it was intended that, save where expressly provided, a mistaken or honest belief in the victim’s age should not afford a defence. Therefore I consider that it would be reasonable to infer that it was the intention of Parliament that liability under section 1(1) of the Act of 1960 should be strict so that an honest belief as to the age of the child would not be a defence. But the test is not whether it is a reasonable implication that the statute rules out mens rea as a constituent part of the crime – the test is whether it is a necessary implication. Applying this test, I am of opinion that there are considerations which point to the conclusion that it is not a necessary implication. One is that the various provisions of the Act of 1956 have not been drafted to give effect to a consistent scheme but are a collection of diverse provisions derived from a variety of sources: . . . A further consideration is that in Sweet v Parsley Lord Reid stated at p 149D: It is also firmly established that the fact that other sections of the Act expressly require mens rea, for example because they contain the word ‘knowingly’, is not in itself sufficient to justify a decision that a section which is silent as to mens rea creates an absolute offence. Whilst, as I have stated, I think there is force in the view expressed by Blackburn J at pp 171–72 of R v Prince, I am of opinion that to the extent that Prince’s case can be viewed as establishing a general rule that mistake as to age does not afford a defence in age-based sexual offences, that rule cannot prevail over the presumption stated by this House in Sweet v Parsley. Therefore, for the reasons which I have stated, I would allow this appeal and I would answer the first certified question in the negative. For the reasons which have been stated by my noble and learned friend Lord Steyn, and with which I agree, I would answer part (a) of the second certified question in the affirmative, and I would answer part (b) by stating that the burden of proof rests on the Crown once the defendant has raised some evidence before the jury or magistrates that he or she honestly believed the child was over fourteen. I am conscious that the decision by this House to allow this appeal may make it more difficult to convict those who are guilty of an offence under Section 1(1) of the Act of 1960 and thus reduce the protection given to children, but I have come to the conclusion that as Parliament has failed to state by express provision or by necessary implication that mens rea as to age is not necessary, the legal presumption stated by Lord Reid that mens rea is required must be applied. If Parliament regards the decision in this case as giving rise to undesirable consequences it will be for it to change the law, and I share the regret of Brooke LJ expressed in his judgment at p 136A–H that Parliament does not take account of the expert advice which it has received over the years from the Criminal Law Revision Committee and the Law Commission, and does not address its mind, in enacting legislation creating or restating criminal offences, to the issue whether mens rea 121 CASES AND MATERIALS ON CRIMINAL LAW should be a constituent part of the offences and does not state in clear terms whether or not mens rea is required. 3.8.2 THE SERIOUSNESS OF THE OFFENCE: STIGMA AND PUNISHMENT VERSUS MERELY REGULATORY Alphacell Ltd v Woodward [1972] AC 824 (HL) The appellant company had been convicted, under the Rivers (Prevention of Pollution) Act 1951, of the offence of causing or knowingly permitting to enter a stream ‘any poisonous, noxious or polluting matter’ (s 2(1)(a)). The following extracts focus upon the extent to which the imposition of strict liability can be justified where the prohibition is essentially regulatory in substance, as opposed to ‘truly criminal’. Viscount Dilhorne: . . . This Act, in my opinion, is one of those Acts to which my noble and learned friends, Lord Reid and Lord Diplock, referred in Sweet v Parsley [1970] AC 132, 149, 163 which, to apply the words of Wright J in Sherras v De Rutzen [1895] 1 QB 918, 922 deals with acts which ‘are not criminal in any real sense, but are acts which in the public interest are prohibited under a penalty’. What, then, is meant by the word ‘caused’ in the subsection? If a man, intending to secure a particular result, does an act which brings that about, he causes that result. If he deliberately and intentionally does certain acts of which the natural consequence is that certain results ensue, may he not also be said to have caused those results even though they may not have been intended by him? I think he can, just as he can be said to cause the result if he is negligent, without intending that result . . . We have not here to consider what the position would be if pollution were caused by an inadvertent and unintentional act without negligence. In such case it might be said that the doer of the act had not caused the pollution although the act had caused it. Here the acts done by the appellants were intentional. They were acts calculated to lead to the river being polluted if the acts done by the appellants, the installation and operation of the pumps, were ineffective to prevent it. Where a person intentionally does certain things which produce a certain result, then it can truly be said that he has caused that result, and here in my opinion the acts done intentionally by the appellants causes the pollution . . . Lord Salmon: My Lords . . . The appellants contend that, even if they caused the pollution, still they should succeed since they did not cause it intentionally or knowingly or negligently. Section 2(1)(a) of the Rivers (Prevention of Pollution) Act 1951 is undoubtedly a penal section. It follows that if it is capable of two or more meanings then the meaning most favourable to the subject should be adopted. Accordingly, so the argument runs, the words ‘intentionally’ or ‘knowingly’ or ‘negligently’ should be read into the section immediately before the word ‘causes’. I do not agree. It is of the utmost public importance that our rivers should not be polluted. The risk of pollution, particularly from the vast and increasing number of riparian industries, is very great. The offences created by the Act of 1951 seem to me to be prototypes of offences which ‘are not criminal in any 122 MENS REA: THE MENTAL ELEMENT real sense, but are acts which in the public interest are prohibited under a penalty’: Sherras v De Rutzen [1895] 1 QB 918, per Wright J at 922, referred to with approval by my noble and learned friends, Lord Reid and Lord Diplock, in Sweet v Parsley [1970] AC 132, at 149, 162. I can see no valid reason for reading the word ‘intentionally’, ‘knowingly’ or ‘negligently’ into s 2(1)(a) and a number of cogent reasons for not doing so. In the case of a minor pollution such as the present, when the justices find that there is no wrongful intention or negligence on the part of the defendant, a comparatively nominal fine will no doubt be imposed. This may be regarded as a not unfair hazard of carrying on a business which may cause pollution on the banks of a river. The present appellants were fined £20 and ordered to pay, in all, £24 costs. I should be surprised if the costs of pursuing this appeal to this House were incurred for the purpose of saving these appellants £44. If this appeal succeeded and it were held to be the law that no conviction could be obtained under the Act of 1951 unless the prosecution could discharge the often impossible onus of proving that the pollution was caused intentionally or negligently, a great deal of pollution would go unpunished and undeterred to the relief of many riparian factory owners. As a result, many rivers which are now filthy would become filthier still and many rivers which are now clean would lose their cleanliness. The legislature no doubt recognised that as a matter of public policy this would be most unfortunate. Hence s 2(1)(a) which encourages riparian factory owners not only to take reasonable steps to prevent pollution but to do everything possible to ensure that they do not cause it . . . Wings Ltd v Ellis [1985] AC 272 (HL) A Mr Wade booked a foreign holiday with the defendant company on the strength of information contained in its travel brochure that was subsequently found to be untrue. The House of Lords had to consider whether the relevant legislation, s 14 of the Trade Descriptions Act 1968, created an offence of strict liability. Lord Scarman: My Lords, this appeal turns on the construction properly to be put upon a few ordinary English words in the context of s 14 of the Trade Descriptions Act 1968. Put very shortly, the basic issue between the parties is whether upon its proper construction s 14(1)(a) creates an offence of strict, or more accurately, semi-strict, liability or is one requiring the existence of full mens rea . . . Section 14, so far as material, is in these terms: (1) It shall be an offence for any person in the course of any trade or business: (a) to make a statement which he knows to be false; or (b) recklessly to make a statement which is false; as to any of the following matters, that is to say: (1) the provision in the course of any trade or business of any services, accommodation or facilities . . . It is no exaggeration to say that the social impact of the class of business which I have described and in which the respondent company is engaged has been immense. It has brought about a dramatic change in the lifestyle of millions. People rely on the brochures issued by the companies engaged in this highly competitive business when choosing their annual holidays abroad. Some, 123 CASES AND MATERIALS ON CRIMINAL LAW like Mr and Mrs Wade in this case, choose to travel great distances to far-away places very different from anything which they have experienced at home upon their faith in a description which they have read in a brochure but which they cannot check. The Trade Descriptions Act 1968 is plainly a very important safeguard for those members of the public (and they run into millions) who choose their holidays in this way. If the protection is not to be undermined, the Act must be widely known (as indeed it is), easily understood (as, having heard the arguments in this case, I fear that it may not be), and must be of general application save in situations specifically excepted by the statute itself. The Act is not based on the law of contract or tort. It operates by prohibiting false descriptions under the pain of penalties enforced through the criminal courts. But it is not a truly criminal statute. Its purpose is not the enforcement of the criminal law but the maintenance of trading standards. Trading standards, not criminal behaviour, are its concern. Its prohibitions include false trade descriptions applied to goods (s 1); misleading indications as to the price of goods (s 11); false representations as to royal approval or awards (s 12); and false statements as to the nature of services, accommodation, or facilities provided in the course of business (s 14). It provides for certain defences to be available, two of which could have been relevant in this case. They are defences made available under ss 23 and 24, to which I shall return later. Neither section was invoked at the hearing before the justices, who consequently made no finding upon either of them. Indeed, it was argued by the respondent in your Lordships’ House that neither was applicable to an offence charged under s 14. The Act, of course, to be of any value at all in modern conditions, has to cover trades and businesses conducted on a large scale by individual proprietors, by firms, and by bodies corporate. The day-to-day business activities of large enterprises, whatever their legal structure, are necessarily conducted by their employees, and particularly by their sales staff. It follows that many of the acts prohibited by the Act will be the acts of employees done in the course of the trade or business and without the knowledge at the time of those who direct the business. It will become clear that the Act does cover such acts when one comes to consider the terms of the two statutory defences to which I have already referred. The Act also makes specific provision consistent with this view of its operation in respect of businesses carried on by bodies corporate. Section 20 provides that where an offence has been committed by a body corporate and was committed with the consent or is attributable to the neglect of a director or other officer of the company, he ‘as well as the body corporate’ is guilty of the offence . . . My Lords, the subject-matter and structure of the Act make plain that the Act belongs to that class of legislation which prohibits acts which ‘are not criminal in any real sense, but are acts which in the public interest are prohibited under a penalty’, as Wright J put it in Sherras v De Rutzen [1895] 1 QB 918, 922. In construing the offence-creating sections of the Act it will, therefore, be necessary to bear in mind that it may well have been the intention of the legislature ‘in order to guard against the happening of the forbidden thing, to impose a liability upon a principal even though he does not know of, and is not a party to, the forbidden act done by his servant’: see per Viscount Reading CJ in Mousell Brothers Ltd v London and North-Western Railway Co [1917] 2 KB 836, 844. While, however, the subject-matter of the Act is such that the presumption recognised by Lord Reid in Sweet v Parsley [1970] AC 132, 148G as applicable to truly criminal statutes ‘that Parliament did not intend to make criminals of persons who were in no way blameworthy in what they did’ is not applicable to this Act, it does not necessarily follow that merely because an offencecreating section in the Act is silent as to mens rea its silence must be construed as excluding 124 MENS REA: THE MENTAL ELEMENT mens rea. As Lord Reid said, at 149, in the absence of a clear indication that an offence is intended to be an absolute offence one must examine all relevant circumstances in order to establish the intention of Parliament . . . At the end of the day the question whether an offence created by statute requires mens rea, guilty knowledge or intention, in whole, in part, or not at all, turns on the subject-matter, the language and the structure of the Act studied as a whole, on the language of the particular statutory provision under consideration construed in the light of the legislative purpose embodied in the Act, and on ‘whether strict liability in respect of all or any of the essential ingredients of the offence would promote the object of the provision’: Gammon’s case at 16 and see Sweet v Parsley [1970] AC 132, 163, per Lord Diplock . . . 3.8.3 PRESUMPTION IN FAVOUR OF MENS REA REBUTTED BY SUBJECT MATTER: THE NEED TO PROTECT SOCIETY Gammon (Hong Kong) Ltd v AG of Hong Kong [1985] 1 AC 1 (PC) The defendant company was charged with breaching building regulations in Hong Kong (the ‘Ordinances’). The issue for the Privy Council was as to whether or not the Ordinances created offences of strict liability. Lord Scarman: . . . The issue in the appeal is whether the offences charged are offences of strict liability or require proof of mens rea as to their essential facts . . . In their Lordships’ opinion, the law relevant to this appeal may be stated in the following propositions . . .: (1) there is a presumption of law that mens rea is required before a person can be held guilty of a criminal offence; (2) the presumption is particularly strong where the offence is ‘truly criminal’ in character; (3) the presumption applies to statutory offences, and can be displaced only if this is clearly or by necessary implication the effect of the statute; (4) the only situation in which the presumption can be displaced is where the statute is concerned with an issue of social concern, and public safety is such an issue; (5) even where a statute is concerned with such an issue, the presumption of mens rea stands unless it can also be shown that the creation of strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act. . . . Whether, therefore, a particular provision of the statute creates an offence of full mens rea or of strict liability must depend upon the true meaning of the words of the particular provision construed with reference to its subject-matter and to the question whether strict liability in respect of all or any of the essential ingredients of the offence would promote the object of the provision . . . 125 CASES AND MATERIALS ON CRIMINAL LAW 3.8.4 WHETHER THE IMPOSITION OF STRICT LIABILITY HELPS TO ACHIEVE THE LEGISLATIVE PURPOSE Sherras v De Rutzen [1895] 1 QB 918 (QBD) Day J: I am clearly of opinion that this conviction ought to be quashed. This police constable comes into the appellant’s public house without his armlet, and with every appearance of being off duty. The house was in the immediate neighbourhood of the police station, and the appellant believed, and he had very natural grounds for believing, that the constable was off duty. In that belief he accordingly served him with liquor. As a matter of fact, the constable was on duty; but does that fact make the innocent act of the appellant an offence? I do not think it does. He had no intention to do a wrongful act; he acted in the bona fide belief that the constable was off duty. It seems to me that the contention that he committed an offence is utterly erroneous . . . Wright J: I am of the same opinion. There are many cases on the subject, and it is not very easy to reconcile them. There is a presumption that mens rea, an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence; but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject-matter with which it deals, and both must be considered: Nichols v Hall Law Rep 8 CP 322. One of the most remarkable exceptions was in the case of bigamy. It was held by all the judges, on the statute 1 Jac 1, c 11, that a man was rightly convicted of bigamy who had married after an invalid Scotch divorce, which had been obtained in good faith, and the validity of which he had no reason to doubt: Lolley’s case R & R 237. Another exception, apparently grounded on the language of a statute, is Prince’s case Law Rep 2 CC 154, where it was held by 15 judges against one that a man was guilty of abduction of a girl under 16, although he believed, in good faith and on reasonable grounds, that she was over that age. Apart from isolated and extreme cases of this kind, the principal classes of exceptions may perhaps be reduced to three. One is a class of acts which, in the language of Lush J in Davies v Harvey Law Rep 9 QB 433, are not criminal in any real sense, but are acts which in the public interest are prohibited under a penalty. Several such instances are to be found in the decisions on the Revenue Statutes, e.g. AG v Lockwood 9 M & W 378, where the innocent possession of liquorice by a beer retailer was held an offence. So under the Adulteration Acts, R v Woodrow 15 M & W 404, as to innocent possession of adulterated tobacco; Fitzpatrick v Kelly Law Rep 8 QB 337 and Roberts v Egerton Law Rep 9 QB 494 as to the sale of adulterated food . . . . . . Another class comprehends some, and perhaps all, public nuisances: R v Stephens Law Rep 1 QB 702 where the employer was held liable on indictment for a nuisance caused by workmen without knowledge and contrary to his orders . . . Last, there may be cases in which, although the proceeding is criminal in form, it is really only a summary mode of enforcing a civil right: see per Williams and Willes JJ in Morden v Porter 7 CB (NS) 641; 29 LJ (MC) 213, as to unintentional trespass in pursuit of game; Lee v Simpson 3 CB 871, as to unconscious dramatic piracy; and Hargreaves v Diddams Law Rep 10 QB 582, as to a bona fide belief in a legally impossible right to fish. But, except in such cases as these there must in general be guilty knowledge on the part of the defendant, or of someone whom he has put in his place to act for him, generally, or in the particular matter, in order to constitute an offence. It is plain that if guilty knowledge is not necessary, no care on the part of the publican could save him from a conviction . . . since it would be as easy for the constable to deny that he was on duty when asked, or to 126 MENS REA: THE MENTAL ELEMENT produce a forged permission from his superior officer, as to remove his armlet before entering the public house. I am, therefore, of opinion that this conviction ought to be quashed. Lim Chin Aik v R [1963] AC 160 (PC) Lord Evershed: . . . What should be the proper inferences to be drawn from the language of the statute or statutory instrument under review – in this case of ss 6 and 9 of the Immigration Ordinance? More difficult, perhaps, still, what are the inferences to be drawn in a given case from the ‘subject-matter with which [the statute or statutory instrument] deals’? Where the subject-matter of the statute is the regulation for the public welfare of a particular activity – statutes regulating the sale of food and drink are to be found among the earliest examples – it can be and frequently has been inferred that the legislature intended that such activities should be carried out under conditions of strict liability. The presumption is that the statute or statutory instrument can be effectively enforced only if those in charge of the relevant activities are made responsible for seeing that they are complied with. When such a presumption is to be inferred, it displaces the ordinary presumption of mens rea . . . But it is not enough in their Lordships’ opinion merely to label the statute as one dealing with a grave social evil and from that to infer that strict liability was intended. It is pertinent also to inquire whether putting the defendant under strict liability will assist in the enforcement of the regulations. That means that there must be something he can do, directly or indirectly, by supervision or inspection, by improvement of his business methods or by exhorting those whom he may be expected to influence or control, which will promote the observance of the regulations. Unless this is so, there is no reason in penalising him, and it cannot be inferred that the legislature imposed strict liability merely in order to find a luckless victim . . . Where it can be shown that the imposition of strict liability would result in the prosecution and conviction of a class of persons whose conduct could not in any way affect the observance of the law, their Lordships consider that, even where the statute is dealing with a grave social evil, strict liability is not likely to be intended. Their Lordships apply these general observations to the Ordinance in the present case. The subject-matter, the control of immigration, is not one in which the presumption of strict liability has generally been made. Nevertheless, if the courts of Singapore were of the view that unrestricted immigration is a social evil which it is the object of the Ordinance to control most rigorously, their Lordships would hesitate to disagree. That is a matter peculiarly within the cognisance of the local courts. But [counsel for the Crown] was unable to point to anything that the appellant could possibly have done so as to ensure that he complied with the regulations. It was not, for example, suggested that it would be practicable for him to make continuous inquiry to see whether an order had been made against him. Clearly one of the objects of the Ordinance is the expulsion of prohibited persons from Singapore, but there is nothing that a man can do about it if, before the commission of the offence, there is no practical or sensible way in which he can ascertain whether he is a prohibited person or not. [Counsel], therefore, relied chiefly on the text of the Ordinance and their Lordships return, accordingly, to the language of the two material sections. It is to be observed that the Board is here concerned with one who is said (within the terms of s 6(3)) to have ‘contravened’ the 127 CASES AND MATERIALS ON CRIMINAL LAW subsection by ‘remaining’ in Singapore (after having entered) when he had been ‘prohibited’ from entering by an ‘order’ made by the Minister containing such prohibition. It seems to their Lordships that, where a man is said to have contravened an order or an order of prohibition, the common sense of the language presumes that he was aware of the order before he can be said to have contravened it. Their Lordships realise that this statement is something of an oversimplification when applied to the present case; for the ‘contravention’ alleged is of the unlawful act, prescribed by subsection (2) of the section, of remaining in Singapore after the date of the order of prohibition. Nonetheless it is their Lordships’ view that, applying the test of ordinary sense to the language used, the notion of contravention here alleged is more consistent with the assumption that the person charged had knowledge of the order than the converse. But such a conclusion is in their Lordships’ view much reinforced by the use of the word ‘remains’ in its context. It is to be observed that if the respondent is right a man could lawfully enter Singapore and could thereafter lawfully remain in Singapore until the moment when an order of prohibition against his entering was made; that then, instanter, his purely passive conduct in remaining – that is, the mere continuance, quite unchanged, of his previous behaviour, hitherto perfectly lawful – would become criminal. These considerations bring their Lordships clearly to the conclusion that the sense of the language here in question requires for the commission of a crime thereunder mens rea as a constituent of such crime; or at least that there is nothing in the language used which suffices to exclude the ordinary presumption. Their Lordships do not forget the emphasis placed by [counsel] on the fact that the word ‘knowingly’ or the phrases ‘without reasonable cause’ or ‘without reasonable excuse’ are found in various sections of the Ordinance (as amended) but find no place in the section now under consideration – see, for example, ss 16(4), 18(4), 19(2), 29, 31(2), 41(2) and 56(d) and (e) of the Ordinance. In their Lordships’ view the absence of such a word or phrase in the relevant section is not sufficient in the present case to prevail against the conclusion which the language as a whole suggests. In the first place, it is to be noted that to have inserted such words as ‘knowingly’ or ‘without lawful excuse’ in the relevant part of s 6(3) of the Act would in any case not have been sensible. Further, in all the various instances where the word or phrase is used in the other sections of the Ordinance before-mentioned the use is with reference to the doing of some specific act or the failure to do some specific act as distinct from the mere passive continuance of behaviour theretofore perfectly lawful. Finally, their Lordships are mindful that in the Sherras case [1895] 1 QB 918 itself the fact that the word ‘knowingly’ was not found in the subsection under consideration by the court but was found in another subsection in the same section was not there regarded as sufficient to displace the ordinary rule. Their Lordships have accordingly reached the clear conclusion, with all respect to the view taken in the courts below, that the application of the rule that mens rea is an essential ingredient in every offence has not in the present case been ousted by the terms or subject-matter of the Ordinance, and that the appellant’s conviction and sentence cannot stand . . . Sweet v Parsley [1970] AC 132 (HL) The facts are given in the earlier extract at the beginning of this chapter. The following passage indicates that strict liability ought not to be imposed on those who cannot take action to prevent a prohibited circumstance arising. 128 MENS REA: THE MENTAL ELEMENT Lord Morris of Borth-y-Gest: It is said that the intention of Parliament was to impose a duty on all persons concerned in the management of any premises to exercise vigilance to prevent the smoking of cannabis. If that had been the intention of Parliament different words would have been used. It would be possible for Parliament to enact, though it would be surprising if it did, that if anyone should at any time smoke cannabis on any premises, then all those concerned in the management of those premises, whether they knew of the smoking or not, should automatically be guilty of a criminal offence. Yet this is in effect what it is now said that Parliament has enacted. The implications are astonishing. Parliament would not only be indirectly imposing a duty upon persons concerned in the management of any premises requiring them to exercise complete supervision over all persons who enter the premises to ensure that no one of them should smoke cannabis, but Parliament would be enacting that the persons concerned in the management would become guilty of an offence if, unknown to them, someone by surreptitiously smoking cannabis eluded the most elaborately devised measures of supervision. There would not be guilt by reason of anything done nor even by reasons of any carelessness, but by reason of the unknown act of some unknown person whom it had not been found possible to control. When the range of possible punishments is remembered the unlikelihood that Parliament intended to legislate in such way becomes additionally apparent. Lord Pearce: My Lords, the prosecution contend that any person who is concerned in the management of premises where cannabis is in fact smoked even once, is liable, though he had no knowledge and no guilty mind. This is, they argue, a practical act intended to prevent a practical evil. Only by convicting some innocents along with the guilty can sufficient pressure be put upon those who make their living by being concerned in the management of premises. Only thus can they be made alert to prevent cannabis being smoked there. And if the prosecution have to prove knowledge or mens rea, many prosecutions will fail and many of the guilty will escape. I find that argument wholly unacceptable. The notion that some guilty mind is a constituent part of crime and punishment goes back far beyond our common law. And at common law mens rea is a necessary element in a crime. Since the Industrial Revolution the increasing complexity of life called into being new duties and crimes which took no account of intent. Those who undertake various industrial and other activities, especially where these affect the life and health of the citizen, may find themselves liable to statutory punishment regardless of knowledge or intent, both in respect of their own acts or neglect and those of their servants. But one must remember that normally mens rea is still an ingredient of any offence. Before the court will dispense with the necessity for mens rea it has to be satisfied that Parliament so intended. The mere absence of the word ‘knowingly’ is not enough. But the nature of the crime, the punishment, the absence of social obloquy, the particular mischief and the field of activity in which it occurs, and the wording of the particular section and its context, may show that Parliament intended that the act should be prevented by punishment regardless of intent or knowledge. Viewing the matter of these principles, it is not possible to accept the prosecution’s contention. Even granted that this were in the public health class of case, such as, for instance, are offences created to ensure that food shall be clean, it would be quite unreasonable. It is one thing to make a man absolutely responsible for all his own acts and even vicariously liable for his servants if he engages in a certain type of activity. But it is quite another matter to make him liable for persons over whom he has no control. The innocent hotel-keeper, the lady who keeps lodgings or takes 129 CASES AND MATERIALS ON CRIMINAL LAW paying guests, the manager of a cinema, the warden of a hostel, the matron of a hospital, the housemaster and matron of a boarding school, all these, it is conceded, are, on the prosecution’s argument, liable to conviction the moment that irresponsible occupants smoke cannabis cigarettes. And for what purpose is this harsh imposition laid on their backs? No vigilance by night or day can make them safe. The most that vigilance can attain is advance knowledge of their own guilt. If a smell of cannabis comes from a sitting room, they know that they have committed the offence. Should they then go at once to the police and confess their guilt in the hope that they will not be prosecuted? They may think it easier to conceal the matter in the hope that it may never be found out. For if, though morally innocent, they are prosecuted they may lose their livelihood, since thereafter, even though not punished, they are objects of suspicion. I see no real, useful object achieved by such hardship to the innocent. And so wide a possibility of injustice to the innocent could not be justified by any benefit achieved in the determent and punishment of the guilty. If, therefore, the words creating the offence are as wide in their application as the prosecution contend, Parliament cannot have intended an offence to which absence of knowledge or mens rea is no defence . . . COMMENTS AND QUESTIONS 1 The corollary to the argument that there is no point in imposing strict liability upon a defendant who could not have taken action to avoid liability is that strict liability can be justified where D has a choice as to whether or not to participate in a particular trade or activity. A trader serving food to the public is regarded as having accepted the risk of liability for selling contaminated food, even where he has no knowledge of the contamination, as an occupational hazard. If he thinks such liability is unfair he should engage in a less hazardous trade. The purpose of strict liability in such cases is to ensure vigilance and to prevent the courts being flooded with ‘unmeritorious’ defences based on lack of knowledge. As Lord Russell CJ observed in Parker v Alder [1899] 1 QB 20, when referring to the imposition of strict liability on a defendant selling adulterated milk: Now, assuming that the respondent was entirely innocent morally, and had no means of protecting himself from the adulteration of this milk in the course of transit, has he committed an offence against the Acts? I think that he has. When the scope and object of these Acts are considered, it will appear that if he were to be relieved from responsibility a wide door would be opened for evading the beneficial provisions of this legislation . . . This is one of the class of cases in which the legislature has, in effect, determined that mens rea is not necessary to constitute the offence . . . 2 130 The ‘implausible defence’ issue was obviously a factor in the court’s ruling in R v Bradish (1990) 90 Cr App R 271, where the appellant was convicted of possessing a prohibited weapon contrary to s 5(1) of the Firearms Act 1968. He had contended that he had not known that the container in his possession was a CS gas canister. Auld J observed: MENS REA: THE MENTAL ELEMENT . . . the possibilities and consequences of evasion would be too great for effective control, even if the burden of proving lack of guilty knowledge were to be on the accused. The difficulty of enforcement, when presented with such a defence, would be particularly difficult where there is a prosecution for possession of a component part of a firearm or prohibited weapon, as provided for by sections 1 and 5 when read with section 57(1) of the 1968 Act. It would be easy for an accused to maintain, lyingly but with conviction, that he did not recognise the object in his possession as part of a firearm or prohibited weapon. To the argument that the innocent possessor or carrier of firearms or prohibited weapons or parts of them is at risk of unfair conviction under these provisions there has to be balanced the important public policy behind the legislation of protecting the public from the misuse of such dangerous weapons. Just as the Chicago-style gangster might plausibly maintain that he believed his violin case to contain a violin, not a sub-machine gun, so it might be difficult to meet a London lout’s assertion that he did not know an unmarked plastic bottle in his possession contained ammonia rather than something to drink. 3 In Harrow LBC v Shah [1999] 3 All ER 302, the Divisional Court held that a defendant could be convicted of selling a lottery ticket to a person under the age of 16, even though there was no fault established on the part of the defendant retailer. Mitchell J observed that the imposition of strict liability would ‘. . . unquestionably encourage greater vigilance in preventing the commission of the prohibited act’ and that ‘. . . no sort of stigma attaches to [the] offence . . .’. 3.8.5 CODIFICATION AND LAW REFORM PROPOSALS Clause 20 of the draft Criminal Code Bill provides as follows: 20(1) Every offence requires a fault element of recklessness with or respect to each of its elements other than fault elements, unless otherwise provided. As the commentary in Vol II explains: An enactment creating an offence should ordinarily specify the fault required for the offence or expressly provide that the offence is one of strict liability in respect of one or more identified elements. It is necessary, however, to have a general rule for the interpretation of any offence the definition of which does not state, in respect of one or more elements, whether fault is required or what degree of fault is required. The absence of a consistent rule of interpretation has been a regrettable source of uncertainty in English law . . . We considered a suggestion that the clause should seek to make the presumption displaceable only by express provision requiring some fault other than recklessness, or stating that no fault is required, with respect to an element of an offence. We do not think that this would be appropriate. We are mindful of the ‘constitutional platitude’ pointed out by Lord Ackner in Hunt [1987] AC 352 at 380 that the courts must give effect to what Parliament has provided not only ‘expressly’ but also by ‘necessary implication’. If the terms of a future enactment creating an offence plainly implied an intention to displace the presumption created by clause 20(1), the courts would no doubt feel obliged to give effect to that intention even if the present clause were to require express provision for the purpose [Vol II, paras 8.25–8.28]. 131 CASES AND MATERIALS ON CRIMINAL LAW 3.9 CORPORATE BODIES AND PROOF OF MENS REA Where Parliament creates regulatory schemes, such as those that seek to prevent pollution, ensure minimum building standards, or ensure the quality of foodstuffs sold for public consumption, it often reinforces compliance by creating criminal offences that can be charged against those causing prohibited results. In many cases the parties subject to these regulations will be corporations rather than real people. The concept of mens rea is, of course, one that has developed in relation to the human mind, not the artificial legal identity of the corporation. In order to avoid the difficulty of establishing mens rea on the part of a corporation, many regulatory offences operate on the basis of strict liability – that is, liability without fault; see 3.9 above. Where, however, a corporation is charged with an offence requiring proof of fault the question arises as to how that can be established. Which officer of the corporation is to be deemed to be the ‘controlling mind’ of the corporation? Is it a question of seniority? Can the mens rea of several managers be aggregated to provide a ‘composite’ mens rea for the corporation as a whole? The issue has particularly come to the fore in the context of corporate liability for manslaughter – a matter considered in Chapter 4.11. The following extracts concern the general principles of identifying corporate mens rea. Tesco Ltd v Nattrass [1972] AC 153 (HL) Lord Reid: My Lords, the appellants own a large number of supermarkets in which they sell a wide variety of goods. The goods are put out for sale on shelves or stands, each article being marked with the price at which it is offered for sale. The customer selects the articles he wants, takes them to the cashier, and pays the price. From time to time the appellants, apparently by way of advertisement, sell ‘flash packs’ at prices lower than the normal price. In September 1969 they were selling Radiant washing powder in this way. The normal price was 3s 11d but these packs were marked and sold at 2s 11d. Posters were displayed in the shops drawing attention to this reduction in price. These prices were displayed in the appellants’ shop at Northwich on 26 September. Mr Coane, an old age pensioner, saw this and went to buy a pack. He could only find packs marked 3s 11d. He took one to the cashier who told him that there were none in stock for sale at 2s 11d. He paid 3s 11d and complained to an inspector of weights and measures. This resulted in a prosecution under the Trade Descriptions Act 1968 and the appellants were fined £25 and costs. Section 11(2) provides: If any person offering to supply any goods gives, by whatever means, any indication likely to be taken as an indication that the goods are being offered at a price less than that at which they are in fact being offered he shall, subject to the provisions of this Act, be guilty of an offence. It is not disputed that that section applies to this case. The appellants relied on s 24(1) which provides: 132 MENS REA: THE MENTAL ELEMENT In any proceedings for an offence under this Act it shall, subject to subsection (2) of this section, be a defence for the person charged to prove: (a) that the commission of the offence was due to a mistake or to reliance on information supplied to him or to the act or default of another person, an accident or some other cause beyond his control; and (b) that he took all reasonable precautions and exercised all due diligence to avoid the commission of such an offence by himself or any person under his control. The relevant facts as found by the magistrates were that on the previous evening a shop assistant, Miss Rogers, whose duty it was to put out fresh stock, found that there were no more of the specially marked packs in stock. There were a number of packs marked with the ordinary price so she put them out. She ought to have told the shop manager, Mr Clement, about this, but she failed to do so. Mr Clement was responsible for seeing that the proper packs were on sale, but he failed to see to this although he marked his daily return ‘all special offers OK’. The magistrates found that if he had known about this he would either have removed the poster advertising the reduced price or given instructions that only 2s 11d was to be charged for the packs marked 3s 11d. Section 24(2) requires notice to be given to the prosecutor if the accused is blaming another person and such notice was duly given naming Mr Clement. In order to avoid conviction the appellants had to prove facts sufficient to satisfy both parts of s 24(1) of the Act of 1968. The magistrates held that they: ‘. . . had exercised all due diligence in devising a proper system for the operation of the said store and by securing so far as was reasonably practicable that it was fully implemented and thus had fulfilled the requirements of s 24(1)(b)’. But they convicted the appellants because in their view the requirements of s 24(1)(a) had not been fulfilled: they held that Clement was not ‘another person’ within the meaning of that provision. The Divisional Court held that the magistrates were wrong in holding that Clement was not ‘another person’. The respondent did not challenge this finding of the Divisional Court so I need say no more about it than that I think that on this matter the Divisional Court was plainly right. But that court sustained the conviction on the ground that the magistrates had applied the wrong test in deciding that the requirements of s 24(1)(b) had been fulfilled. In effect that court held that the words ‘he took all reasonable precautions . . .’ do not mean what they say: ‘he’ does not mean the accused, it means the accused and all his servants who were acting in a managerial or supervisory capacity. I think that earlier authorities virtually compelled the Divisional Court to reach this strange construction. So the real question in this appeal is whether these earlier authorities were rightly decided. But before examining those earlier cases I think it necessary to make some general observations. Over a century ago courts invented the idea of an absolute offence. The accepted doctrines of the common law put them in a difficulty. There was a presumption that when Parliament makes the commission of certain acts an offence it intends that mens rea shall be a constituent of that offence whether or not there is any reference to the knowledge or state of mind of the accused. And it was and is held to be an invariable rule that where mens rea is a constituent of any offence the burden of proving mens rea is on the prosecution. Some day this House may have to reexamine that rule, but that is another matter. For the protection of purchasers or consumers Parliament in many cases made it an offence for a trader to do certain things. Normally those things were done on his behalf by his servants and cases arose where the doing of the forbidden thing was solely the fault of a servant, the master having done all he could to prevent it and being entirely ignorant of its having been done. The just course would have been to hold that, once the 133 CASES AND MATERIALS ON CRIMINAL LAW facts constituting the offence had been proved, mens rea would be presumed unless the accused proved that he was blameless. The courts could not, or thought they could not, take that course. But they could and did hold in many such cases on a construction of the statutory provision that Parliament must be deemed to have intended to depart from the general rule and to make the offence absolute in the sense that mens rea was not to be a constituent of the offence. This has led to great difficulties. If the offence is not held to be absolute the requirement that the prosecutor must prove mens rea makes it impossible to enforce the enactment in very many cases. If the offence is held to be absolute that leads to the conviction of persons who are entirely blameless: an injustice which brings the law into disrepute. So Parliament has found it necessary to devise a method of avoiding this difficulty. But instead of passing a general enactment that it shall always be a defence for the accused to prove that he was no party to the offence and had done all he could to prevent it, Parliament has chosen to deal with the problem piecemeal, and has in an increasing number of cases enacted in various forms with regard to particular offences that it shall be a defence to prove various exculpatory circumstances. In my judgment the main object of these provisions must have been to distinguish between those who are in some degree blameworthy and those who are not, and to enable the latter to escape from conviction if they can show that they were in no way to blame. I find it almost impossible to suppose that Parliament or any reasonable body of men would as a matter of policy think it right to make employers criminally liable for the acts of some of their servants but not for those of others and I find it incredible that a draftsman, aware of that intention, would fail to insert any words to express it. But in several cases the courts, for reasons which it is not easy to discover, have given a restricted meaning to such provisions. It has been held that such provisions afford a defence if the master proves that the servant at fault was the person who himself did the prohibited act, but that they afford no defence if the servant at fault was one who failed in his duty of supervision to see that his subordinates did not commit the prohibited act. Why Parliament should be thought to have intended this distinction or how as a matter of construction these provisions can reasonably be held to have that meaning is not apparent. In some of these cases the employer charged with the offence was a limited company. But in others the employer was an individual and still it was held that he, though personally entirely blameless, could not rely on these provisions if the fault which led to the commission of the offence was the fault of a servant in failing to carry out his duty to instruct or supervise his subordinates. Where a limited company is the employer difficult questions do arise in a wide variety of circumstances in deciding which of its officers or servants is to be identified with the company so that his guilt is the guilt of the company. I must start by considering the nature of the personality which by a fiction the law attributes to a corporation. A living person has a mind which can have knowledge or intention or be negligent and he has hands to carry out his intentions. A corporation has none of these: it must act through living persons, though not always one or the same person. Then the person who acts is not speaking or acting for the company. He is acting as the company and his mind which directs his acts is the mind of the company. There is no question of the company being vicariously liable. He is not acting as a servant, representative, agent or delegate. He is an embodiment of the company or, one could say, he hears and speaks through the persona of the company, within his appropriate sphere, and his mind is the mind of the company. If it is a guilty mind then that guilt is the guilt of the company. It must be a question of law whether, once the facts have been ascertained, a person in doing particular things is to be regarded as the company or merely as the company’s 134 MENS REA: THE MENTAL ELEMENT servant or agent. In that case any liability of the company can only be a statutory or vicarious liability. In Lennard’s Carrying Co Ltd v Asiatic Petroleum Co Ltd [1915] AC 705 the question was whether damage had occurred without the ‘actual fault or privity’ of the owner of a ship. The owners were a company. The fault was that of the registered managing owner who managed the ship on behalf of the owners and it was held that the company could not dissociate itself from him so far as to say that there was no actual fault or privity on the part of the company. Viscount Haldane LC said, at 713, 714: For if Mr Lennard was the directing mind of the company, then his action must, unless a corporation is not to be liable at all, have been an action which was the action of the company itself within the meaning of s 502 . . . It must be upon the true construction of that section in such a case as the present one that the fault or privity is the fault or privity of somebody who is not merely a servant or agent for whom the company is liable upon the footing respondeat superior, but somebody for whom the company is liable because his action is the very action of the company itself. Reference is frequently made to the judgment of Denning LJ in HL Bolton (Engineering) Co Ltd v T J Graham and Sons Ltd [1957] 1 QB 159. He said, at 172: A company may in many ways be likened to a human body. It has a brain and nerve centre which controls what it does. It also has hands which hold the tools and act in accordance with directions from the centre. Some of the people in the company are mere servants and agents who are nothing more than hands to do the work and cannot be said to represent the mind or will. Others are directors and managers who represent the directing mind and will of the company, and control what it does. The state of mind of these managers is the state of mind of the company and is treated by the law as such. In that case the directors of the company only met once a year, they left the management of the business to others, and it was the intention of those managers which was imputed to the company. I think that was right. There have been attempts to apply Lord Denning’s words to all servants of a company whose work is brain work, or exercise some managerial discretion under the direction of superior officers of the company. I do not think that Lord Denning intended to refer to them. He only referred to those who ‘represent the directing mind and will of the company, and control what it does’. I think that it is right for this reason. Normally the board of directors, the managing director and perhaps other superior officers of a company carry out the functions of management and speak and act as the company. Their subordinates do not. They carry out orders from above and it can make no difference that they are given some measure of discretion. But the board of directors may delegate some part of their functions of management giving to their delegate full discretion to act independently of instructions from them. I see no difficulty in holding that they have thereby put such a delegate in their place so that within the scope of the delegation he can act as the company. It may not always be easy to draw the line but there are cases in which the line must be drawn. Lennard’s case [1915] AC 705 was one of them. In some cases the phrase alter ego has been used. I think it is misleading. When dealing with a company the word alter is I think misleading. The person who speaks and acts as the company is not alter. He is identified with the company. And when dealing with an individual no other individual can be his alter ego. The other individual can be a servant, agent, delegate or 135 CASES AND MATERIALS ON CRIMINAL LAW representative but I know of neither principle nor authority which warrants the confusion (in the literal or original sense) of two separate individuals . . . [Where a statute introduces a] defence if the accused proved that ‘he used all due diligence’ I think that it [means] what it [says]. As a matter of construction I can see no ground for reading in ‘he and all persons to whom he has delegated responsibility’. And if I look to the purpose and apparent intention of Parliament in enacting this defence I think that it was plainly intended to make a just and reasonable distinction between the employer who is wholly blameless and ought to be acquitted and the employer who was in some way at fault, leaving it to the employer to prove that he was in no way to blame. What good purpose could be served by making an employer criminally responsible for the misdeeds of some of his servants but not for those of others? It is sometimes argued – it was argued in the present case – that making an employer criminally responsible, even when he has done all that he could to prevent an offence, affords some additional protection to the public because this will induce him to do more. But if he has done all he can how can he do more? I think that what lies behind this argument is a suspicion that magistrates too readily accept evidence that an employer has done all he can to prevent offences. But if magistrates were to accept as sufficient a paper scheme and perfunctory efforts to enforce it they would not be doing their duty – that would not be ‘due diligence’ on the part of the employer. Then it is said that this would involve discrimination in favour of a large employer like the appellants against a small shopkeeper. But that is not so. Mr Clement was the ‘opposite number’ of the small shopkeeper and he was liable to prosecution in this case. The purpose of this Act must have been to penalise those at fault, not those who were in no way to blame. The Divisional Court decided this case on a theory of delegation in that they were following some earlier authorities, but they gave far too wide a meaning to delegation. I have said that a board of directors can delegate part of their functions of management so as to make their delegate an embodiment of the company within the sphere of the delegation. But here the board never delegated any part of their functions. They set up a chain of command through regional and district supervisors, but they remained in control. The shop managers had to obey their general directions and also take orders from their superiors. The acts or omissions of shop managers were not acts of the company itself. In my judgment the appellants established the statutory defence. I would therefore allow this appeal. Lord Morris of Borth-y-Gest: . . . My Lords, with respect I do not think that there was any feature of delegation in the present case. The company had its responsibilities in regard to taking all reasonable precautions and exercising all due diligence. The careful and effective discharge of those responsibilities required the directing mind and will of the company. A system had to be created which could rationally be said to be so designed that the commission of offences would be avoided. There was no delegation of the duty of taking precautions and exercising diligence. There was no such delegation to the manager of a particular store. He did not function as the directing mind or will of the company. His duties as the manager of one store did not involve managing the company. He was one who was being directed. He was one who was employed but he was not a delegate to whom the company passed on its responsibilities. He had certain duties which were the result of the taking by the company of all reasonable precautions and of the exercising by the company of all due diligence. He was a person under the control of the company and on the assumption that there could be proceedings against him, the company would by s 24(1)(b) be absolved if the company 136 MENS REA: THE MENTAL ELEMENT had taken all proper steps to avoid the commission of an offence by him. To make the company automatically liable for an offence committed by him would be to ignore the subsection. He was, so to speak, a cog in the machine which was devised: it was not left to him to devise it. Nor was he within what has been called the ‘brain area’ of the company. If the company had taken all reasonable precautions and exercised all due diligence to ensure that the machine could and should run effectively then some breakdown due to some action or failure on the part of ‘another person’ ought not to be attributed to the company or to be regarded as the action or failure of the company itself for which the company was to be criminally responsible. The defence provided by s 24(1) would otherwise be illusory . . . Meridian Global Funds Management Asia v Securities Commission [1995] 3 WLR 413 (PC) Through two of its employees (Koo and Ng) the appellant company, Meridian Global Funds Management Asia, acquired a controlling interest in another company (Euro-National Corporation Ltd). In doing so the appellant company failed to comply with s 20 of the (New Zealand) Securities Amendment Act 1988, which required any person who became a substantial security holder in another company to give notice of the fact. Notwithstanding that the activities of Koo and Ng had not been authorised by the appellant company, the Court of Appeal in New Zealand held that Koo’s knowledge was attributable to the appellant company under the ‘directing mind and will’ doctrine. The Privy Council dismissed the company’s appeal. Lord Hoffmann: Any proposition about a company necessarily involves a reference to a set of rules. A company exists because there is a rule (usually in a statute) which says that a persona ficta shall be deemed to exist and to have certain of the powers, rights and duties of a natural person. But there would be little sense in deeming such a persona ficta to exist unless there were also rules to tell one what acts were to count as acts of the company. It is therefore a necessary part of corporate personality that there should be rules by which acts are attributed to the company. These may be called ‘the rules of attribution’. The company’s primary rules of attribution will generally be found in its constitution, typically the articles of association, and will say things such as ‘for the purpose of appointing members of the board, a majority vote of the shareholders shall be a decision of the company’ or ‘the decisions of the board in managing the company’s business shall be the decisions of the company’. There are also primary rules of attribution which are not expressly stated in the articles but implied by company law, such as: . . . the unanimous decision of all the shareholders in a solvent company about anything which the company under its memorandum of association has power to do shall be the decision of the company: see Multinational Gas and Petrochemical Co v Multinational Gas and Petrochemical Services Ltd [1983] Ch 258. These primary rules of attribution are obviously not enough to enable a company to go out into the world and do business. Not every act on behalf of the company could be expected to be the 137 CASES AND MATERIALS ON CRIMINAL LAW subject of a resolution of the board or a unanimous decision of the shareholders. The company therefore builds upon the primary rules of attribution by using general rules of attribution which are equally available to natural persons, namely, the principles of agency. It will appoint servants and agents whose acts, by a combination of the general principles of agency and the company’s primary rules of attribution, count as the acts of the company. And having done so, it will also make itself subject to the general rules by which liability for the acts of others can be attributed to natural persons, such as estoppel or ostensible authority in contract and vicarious liability in tort. It is worth pausing at this stage to make what may seem an obvious point. Any statement about what a company has or has not done, or can or cannot do, is necessarily a reference to the rules of attribution (primary and general) as they apply to that company. Judges sometimes say that a company ‘as such’ cannot do anything; it must act by servants or agents. This may seem an unexceptionable, even banal, remark. And of course the meaning is usually perfectly clear. But a reference to a company ‘as such’ might suggest that there is something out there called the company of which one can meaningfully say that it can or cannot do something. There is in fact no such thing as the company as such . . . only the applicable rules. To say that a company cannot do something means only that there is no one whose doing of that act would, under the applicable rules of attribution, count as an act of the company. The company’s primary rules of attribution together with the general principles of agency, vicarious liability and so forth are usually sufficient to enable one to determine its rights and obligations. In exceptional cases, however, they will not provide an answer. This will be the case when a rule of law, either expressly or by implication, excludes attribution on the basis of the general principles of agency or vicarious liability. For example, a rule may be stated in language primarily applicable to a natural person and require some act or state of mind on the part of that person ‘himself’, as opposed to his servants or agents. This is generally true of rules of the criminal law, which ordinarily impose liability only for the actus reus and mens rea of the defendant himself. How is such a rule to be applied to a company? One possibility is that the court may come to the conclusion that the rule was not intended to apply to companies at all; for example, a law which created an offence for which the only penalty was community service. Another possibility is that the court might interpret the law as meaning that it could apply to a company only on the basis of its primary rules of attribution, ie, if the act giving rise to liability was specifically authorised by the resolution of the board or a unanimous agreement of the shareholders. But there will be many cases in which neither of these solutions is satisfactory; in which the court considers that the law was intended to apply to companies and that, although it excludes ordinary vicarious liability, insistence on the primary rules of attribution would in practice defeat that intention. In such a case, the court must fashion a special rule of attribution for the particular substantive rule. This is always a matter of interpretation: given that it was intended to apply to a company, how was it intended to apply? Whose act (or knowledge, or state of mind) was for this purpose intended to count as the act etc of the company? One finds the answer to this question by applying the usual canons of interpretation, taking into account the language of the rule (if it is a statute) and its content and policy. The fact that the rule of attribution is a matter of interpretation or construction of the relevant substantive rule is shown by the contrast between two decisions of the House of Lords, Tesco Supermarkets Ltd v Nattrass [1972] AC 153 and in Re Supply of Ready Mixed Concrete (No 2) [1995] 1 AC 456 . . . [In the latter case] . . . a restrictive arrangement in breach of an undertaking by a company to the Restrictive Practices Court was made by executives of the company acting within the scope of their employment. The board knew nothing of the arrangement; it had in fact 138 MENS REA: THE MENTAL ELEMENT given instructions to the company’s employees that they were not to make such arrangements. But the House of Lords held that for the purposes of deciding whether the company was in contempt, the act and state of mind of an employee who entered into an arrangement in the course of his employment should be attributed to the company. This attribution rule was derived from a construction of the undertaking against the background of the Restrictive Trade Practices Act 1976: such undertakings by corporations would be worth little if the company could avoid liability for what its employees had actually done on the ground that the board did not know about it. [His Lordship referred to Tesco Supermarkets Ltd v Nattrass, and continued] . . . The policy of s 20 of the Securities Amendment Act 1988 is to compel, in fast-moving markets, the immediate disclosure of the identity of persons who become substantial securityholders in public issuers. Notice must be given as soon as that person knows that he has become a substantial security-holder. In the case of a corporate security-holder, what rule should be implied as to the person whose knowledge for this purpose is to count as the knowledge of the company? Surely the person who, with the authority of the company, acquired the relevant interest. Otherwise the policy of the Act would be defeated. Companies would be able to allow employees to acquire interests on their behalf which made them substantial security-holders but would not have to report them until the board or someone else in senior management got to know about it. This would put a premium on the board paying as little attention as possible to what its investment managers were doing. Their Lordships would therefore hold that upon the true construction of s 20(4)(e), the company knows that it has become a substantial security-holder when that is known to the person who had authority to do the deal. It is then obliged to give notice under s 20(3). The fact that Koo did the deal for a corrupt purpose and did not give such notice because he did not want his employers to find out cannot in their Lordships’ view affect the attribution of knowledge and the consequent duty to notify. It was therefore not necessary in this case to inquire into whether Koo could have been described in some more general sense as the ‘directing mind and will’ of the company. But their Lordships would wish to guard themselves against being understood to mean that whenever a servant of a company has authority to do an act on its behalf, knowledge of that act will for all purposes be attributed to the company. It is a question of construction in each case as to whether the particular rule requires that the knowledge that an act has been done, or the state of mind with which it was done, should be attributed to the company. Sometimes, as in In re Supply of Ready Mixed Concrete (No 2) [1995] 1 AC 456 and this case, it will be appropriate. Likewise in a case in which a company was required to make a return for revenue purposes and the statute made it an offence to make a false return with intent to deceive, the Divisional Court held that the mens rea of the servant authorised to discharge the duty to make the return should be attributed to the company: see Moore v I Bresler Ltd [1944] 2 All ER 515. On the other hand, the fact that a company’s employee is authorised to drive a lorry does not in itself lead to the conclusion that if he kills someone by reckless driving, the company will be guilty of manslaughter. There is no inconsistency. Each is an example of an attribution rule for a particular purpose, tailored as it always must be to the terms and policies of the substantive rule. Attorney General’s Ref (No 2 of 1999) [2000] 3 All ER 182 The appeal arose out of a failed prosecution of a rail operating company in respect of the deaths of several passengers following a train crash involving the company’s trains. For the full facts 139 CASES AND MATERIALS ON CRIMINAL LAW see the extract in Chapter 4.8.2 dealing with corporate manslaughter. The following extracts concern the basis upon which the courts would seek to identify the mens rea of a corporate body. Rose LJ: The court’s opinion is sought in relation to two questions referred by the Attorney General under s 36 of the Criminal Justice Act 1972. [The second of these is] . . . Can a non-human defendant be convicted of the crime of manslaughter by gross negligence in the absence of evidence establishing the guilt of an identified human individual for the same crime? . . . As to question (2), Mr Lissack [for the Attorney General] accepted that policy considerations arise. Large companies should be as susceptible to prosecution for manslaughter as one-man companies. Where the ingredients of a common law offence are identical to those of a statutory offence there is no justification for drawing a distinction as to liability between the two and the public interest requires the more emphatic denunciation of a company inherent in a conviction for manslaughter. He submitted that the ingredients of the offence of gross negligence manslaughter are the same in relation to a body corporate as to a human being, namely grossly negligent breach of a duty to a deceased causative of his death. It is, he submitted, unnecessary and inappropriate to inquire whether there is an employee in the company who is guilty of the offence of manslaughter who can properly be said to have been acting as the embodiment of the company. The criminal law of negligence follows the civil law of negligence as applied to corporations: the only difference is that, to be criminal, the negligence must be gross. Of the three theories of corporate criminal liability, namely vicarious liability, identification and personal liability, it is personal liability which should here apply. In the present case, it would have been open to the jury to convict if they were satisfied that the deaths occurred by reason of a gross breach by the defendant of its personal duty to have a safe system of train operation in place. The identification theory, attributing to the company the mind and will of senior directors and managers, was developed in order to avoid injustice: it would bring the law into disrepute if every act and state of mind of an individual employee was attributed to a company which was entirely blameless . . . Before turning to Mr Lissack’s submission in relation to personal liability it is convenient first to refer to the speech of Lord Hoffmann in Meridian Global Funds Management Asia Ltd v Securities Commission . . . on which Mr Lissack relied as the lynchpin of this part of his argument. It was a case in which the chief investment officer and senior portfolio manager of an investment management company, with the company’s authority but unknown to the board of directors and managing director, used funds managed by the company to acquire shares, but failed to comply with a statutory obligation to give notice of the acquisition to the Securities Commission. The trial judge held that the knowledge of the officer and manager should be attributed to the company and the Court of Appeal of New Zealand upheld the decision on the basis that the officer was the directing mind and will of the company. The Privy Council dismissed an appeal. Lord Hoffmann, giving the judgment of the Privy Council, said that the company’s primary rules of attribution were generally found in its constitution or implied by company law . . . But, in an exceptional case, where the application of those principles would defeat the intended application of a particular provision to companies, it was necessary to devise a special rule of attribution . . . Lord Hoffmann went on to comment that it was not necessary in that case to inquire whether the chief investment officer could be described as the ‘directing mind and will’ of the company. He said: 140 MENS REA: THE MENTAL ELEMENT It is a question of construction in each case as to whether the particular rule requires that the knowledge that an act has been done, or the state of mind in which it was done, should be attributed to the company. Mr Lissack’s submission that personal liability on the part of the company is capable of arising in the present case was based on a number of authorities in addition to the Meridian case. In R v British Steel plc [1995] 1 WLR 1356 the defendant was prosecuted, as was the present defendant, for a breach of ss 3(1) and 33(1)(a) of the 1974 Act. A worker was killed because of the collapse of a steel platform during a re-positioning operation which a competent supervisor would have recognised was inherently dangerous. The defence was that the workmen had disobeyed instructions and, even if the supervisor was at fault, the company at the level of its directing mind had taken reasonable care. An appeal against conviction was dismissed by the Court of Appeal, Criminal Division. The judgment was given by Steyn LJ who said (at 1362–63): . . . counsel for British Steel plc concedes that it is not easy to fit the idea of corporate criminal liability only for acts of the ‘directing mind’ of the company into the language of section 3(1).We would go further. If it be accepted that Parliament considered it necessary for the protection of public health and safety to impose, subject to the defence of reasonable practicability, absolute criminal liability, it would drive a juggernaut through the legislative scheme if corporate employers could avoid criminal liability where the potentially harmful event is committed by someone who is not the directing mind of the company . . . That would emasculate the legislation. In a commentary on this decision Professor Sir John Smith QC said in relation to the ‘directing mind’ argument ([1995] Crim LR 655): Where a statutory duty to do something is imposed on a particular person (here an ‘employer’) and he does not do it, he commits the actus reus of an offence. It may be that he has failed to fulfil his duty because his employee or agent has failed to carry out his duties properly but this is not a case for vicarious liability. If the employer is held liable, it is because he, personally, has failed to do what the law requires him to do and he is personally, not vicariously liable. There is no need to find someone – in the case of a company, the ‘brains’ and not merely the ‘hands’ – for whose act the person with the duty be held liable. The duty on the company in this case was ‘to ensure’ – i.e. to make certain – that persons are not exposed to risk. They did not make it certain. It does not matter how; they were in breach of their statutory duty and, in the absence of any requirement for mens rea, that is the end of the matter. . . . For the defendant, Mr Caplan submitted, in relation to question (2), that R v Adomako [1994] 3 All ER 79, [1995] 1 AC 171 was not concerned with corporate liability. It is necessarily implicit in the Law Commission’s recommendation, in Law Com No 237, that Parliament should enact a new offence of corporate killing, that the doctrine of identification still continues to apply to gross negligence manslaughter since R v Adomako. Tesco Supermarkets Ltd v Nattrass [1971] 2 All ER 127, [1972] AC 153 is still authoritative (see Seaboard Offshore Ltd v Secretary of State for Transport [1994] 2 All ER 99, [1994] 1 WLR 541) and it is impossible to find a company guilty unless its alter ego is identified. None of the authorities since Tesco Supermarkets Ltd v Nattrass relied on by Mr Lissack supports the demise of the doctrine of identification: all are concerned 141 CASES AND MATERIALS ON CRIMINAL LAW with statutory construction of different substantive offences and the appropriate rule of attribution was decided having regard to the legislative intent, namely whether Parliament intended companies to be liable. There is a sound reason for a special rule of attribution in relation to statutory offences rather than common law offences, namely there is, subject to a defence of reasonable practicability, an absolute duty imposed by the statutes. The authorities on statutory offences do not bear on the common law principle in relation to manslaughter. Lord Hoffmann’s speech in the Meridian case is a restatement not an abandonment of existing principles: see, for example, Tesco Supermarkets Ltd v Nattrass [1971] 2 All ER 127 at 156, [1972] AC 153 at 200 per Lord Diplock: ‘. . . there may be criminal statutes which on their true construction ascribe to a corporation criminal responsibility for the acts of servants and agents who would be excluded by the test that I have stated . . .’ (viz those exercising the powers of the company under its articles of association). The Law Commission’s proposals were made after the Meridian and British Steel cases. Identification is necessary in relation to the actus reus, i.e. whose acts or omissions are to be attributed to the company, and R v Adomako’s objective test in relation to gross negligence in no way affects this. Furthermore, the civil negligence rule of liability for the acts of servants or agents has no place in the criminal law – which is why the identification principle was developed. That principle is still the rule of attribution in criminal law whether or not mens rea needs to be proved. [Having confirmed that corporate mens rea could only be established by means of the ‘identification’ doctrine, as opposed to the ‘aggregation’ doctrine, Rose LJ concluded:] Finally, Mr Caplan [for the defendant] relied on the speech of Lord Lowry in C v DPP [1995] 2 All ER 43, [1996] AC 1 and invited this court to reject the prosecution’s argument for extending corporate liability for manslaughter. Lord Lowry said, with regard to the propriety of judicial law making: (1) if the solution is doubtful, the judges should beware of imposing their own remedy; (2) caution should prevail if Parliament has rejected opportunities of clearing up a known difficulty or has legislated while leaving the difficulty untouched; (3) disputed matters of social policy are less suitable areas for judicial intervention than purely legal problems; (4) fundamental legal doctrines should not be lightly set aside; (5) judges should not make a change unless they can achieve finality and certainty. (See [1995] 2 All ER 43 at 52, [1996] AC 1 at 28.) Each of these considerations, submitted Mr Caplan, is pertinent in the present case. There is, as it seems to us, no sound basis for suggesting that, by their recent decisions, the courts have started a process of moving from identification to personal liability as a basis for corporate liability for manslaughter. In R v Adomako the House of Lords were, as it seems to us, seeking to escape from the unnecessarily complex accretions in relation to recklessness arising from R v Lawrence [1981] 1 All ER 974, [1982] AC 510 and R v Caldwell [1981] 1 All ER 961, [1982] AC 341. To do so, they simplified the ingredients of gross negligence manslaughter by re-stating them in line with R v Bateman (1925) 19 Cr App R 8, [1925] All ER Rep 45. But corporate liability was not mentioned anywhere in the submissions of counsel or their Lordships’ speeches. In any event, the identification principle is in our judgment just as relevant to the actus reus as to 142 MENS REA: THE MENTAL ELEMENT mens rea. In Tesco Supermarkets Ltd v Nattrass [1971] 2 All ER 127 at 134, [1972] AC 153 at 173 Lord Reid said: . . . the judge must direct the jury that if they find certain facts proved then as a matter of law they must find that the criminal act of the officer, servant or agent including his state of mind, intention, knowledge or belief is the act of the company. In R v HM Coroner ex p Spooner (1989) 88 Cr App R 10 at 16 Bingham LJ said: For a company to be criminally liable for manslaughter . . . it is required that the mens rea and the actus reus of manslaughter should be established . . . against those who were to be identified as the embodiment of the company itself. In R v P & O European Ferries (Dover) Ltd (1991) 93 Cr App R 72 at 84 Tumer J, in his classic analysis of the relevant principles, said: . . . where a corporation, through the controlling mind of one of its agents, does an act which fulfils the prerequisites of the crime of manslaughter, it is properly indictable for the crime of manslaughter. In our judgment, unless an identified individual’s conduct, characterisable as gross criminal negligence, can be attributed to the company the company is not, in the present state of the common law, liable for manslaughter. Civil negligence rules, e.g. as enunciated in Wilsons and Clyde Coal Co Ltd v English [1937] 3 All ER 628, [1938] AC 57, are not apt to confer criminal liability on a company. None of the authorities relied on by Mr Lissack as pointing to personal liability for manslaughter by a company supports that contention. In each, the decision was dependent on the purposive construction that the particular statute imposed, subject to a defence of reasonable practicability, liability on a company for conducting its undertaking in a manner exposing employees or the public to health and safety risk. In each case there was an identified employee whose conduct was held to be that of the company. In each case it was held that the concept of directing mind and will had no application when construing the statute. But it was not suggested or implied that the concept of identification is dead or moribund in relation to common law offences. Indeed, if that were so, it might have been expected that Lord Hoffmann, in R v Associated Octel Ltd [1996] 4 All ER 846, [1996] 1 WLR 1543, would have referred to the illhealth of the doctrine in the light of his own speech, less than a year before, in the Meridian case. He made no such reference, nor was the Meridian case cited in R v Associated Octel Ltd. It therefore seems safe to conclude that Lord Hoffmann (and, similarly, the members of the Court of Appeal, Criminal Division in R v British Steel plc [1995] 1 WLR 1356 and in R v Gateway Foodmarkets Ltd [1997] 3 All ER 78) did not think that the common law principles as to the need for identification have changed. Indeed, Lord Hoffmann’s speech in the Meridian case, in fashioning an additional special rule of attribution geared to the purpose of the statute, proceeded on the basis that the primary ‘directing mind and will’ rule still applies although it is not determinative in all cases. In other words, he was not departing from the identification theory but re-affirming its existence. This approach is entirely consonant with the Law Commission’s analysis of the present state of the law and the terms of their proposals for reform in their report (Law Com 237) published in March 1996. In this report, both the House of Lords’ decision in R v Adomako and the Privy Council’s decision in the Meridian case were discussed. In the light of their analysis, the Law 143 CASES AND MATERIALS ON CRIMINAL LAW Commission (para 6.27 ff and para 7.5) concluded that, in the present state of the law, a corporation’s liability for manslaughter is based solely on the principle of identification and they drafted a Bill to confer liability based on management failure not involving the principle of identification (see cl 4 of the draft Bill annexed to their report). If Mr Lissack’s submissions are correct there is no need for such a Bill and, as Scott Baker J put it, the Law Commission have missed the point. We agree with the judge that the Law Commission have not missed the point and Mr Lissack’s submissions are not correct: the identification principle remains the only basis in common law for corporate liability for gross negligence manslaughter. We should add that, if we entertained doubt on the matter, being mindful of the observations of Lord Lowry in C v DPP [1995] 2 All ER 43 at 52, [1996] AC 1 at 28, we would not think it appropriate for this court to propel the law in the direction which Mr Lissack seeks. That, in our judgment, taking into account the policy considerations to which Mr Lissack referred, is a matter for Parliament, not the courts. For almost four years, the Law Commission’s draft Bill has been to hand as a useful starting point for that purpose. It follows that, in our opinion, the answer to question (2) is No. 3.9.1 CODIFICATION AND LAW REFORM PROPOSALS The DCCB has provisions, clauses 30 and 31, that seek to codify and clarify the common law relating to the imposition of criminal liability on corporations – see also the commentary in Vol II, paras 10.1–10.25. Since then, however, the focus of reform proposals has shifted to the area of corporate liability for manslaughter. The current reform proposals are considered in Chapter 4.12. FURTHER READING Jackson, BS, ‘Storkwain: a case study in strict liability and self-regulation’ [1991] Crim LR 892 Kaveny, MC, ‘Inferring Intention from Foresight’ (2004) 120 LQR 81 Keating, H, ‘Reckless Children?’ [2007] Crim LR 546 Lanham, DJ, ‘Larsonneur revisited’ [1976] Crim LR 276 Leigh, L, Strict and Vicarious Liability, 1982, London: Sweet & Maxwell Lynch, ACE, ‘The mental element in the actus reus’ (1982) 98 LQR 109 Norrie, A, ‘After Woollin’ [1999] Crim LR 532 Richardson, G, ‘Strict liability for regulatory crime: the empirical research’ [1987] Crim LR 295 Simester, AP and W Chan, ‘Intention thus far’ [1997] Crim LR 704 144 CHAPTER 4 HOMICIDE CONTENTS 4.1 4.2 4.3 4.4 4.5 4.6 4.7 4.8 4.9 4.10 4.11 4.12 Introduction The actus reus of homicide – the victim must be a ‘life in being’ Causation The gap in time between the defendant’s act and the victim’s death The mens rea for murder Voluntary manslaughter Involuntary manslaughter: unlawful act manslaughter Involuntary manslaughter: killing by gross negligence Causing or allowing the death of a child or vulnerable adult Codification and law reform proposals Corporate manslaughter Reform of corporate manslaughter 145 149 153 174 175 186 224 234 243 244 247 249 4.1 INTRODUCTION This chapter brings together material related to homicide, that is, the unlawful killing of a human being. The offences that come within the scope of homicide are: • • • • murder; voluntary manslaughter (ie where a defendant has a defence specific to murder); involuntary manslaughter by an unlawful act; killing by gross negligence (including corporate manslaughter). All forms of homicide have a common actus reus – the prosecution must prove that D has caused (in fact and in law) the death of a human being. Once the actus reus is made out, the defendant’s liability will be considered against the backdrop of the current two category structure of homicide offences – i.e. either as a murder case (where certain defences may be available) or as a manslaughter case. For murder the prosecution will have to show that the CASES AND MATERIALS ON CRIMINAL LAW killing was caused with the necessary mens rea (intent). Even if the actus reus and mens rea are made out, the defendant may still be able to rely on certain partial defences that are specific to murder, such as provocation, diminished responsibility, or infanticide. These defences will, if made out, reduce D’s liability to manslaughter. If D causes the death of a human being but is not proved to have had the intention to kill there are two common law forms of manslaughter in respect of which he might be convicted: • Unlawful act manslaughter (sometimes called constructive manslaughter); and killing by gross negligence. • The significance of being convicted of manslaughter rather than murder, is that whilst the sentence for murder is fixed by law at life imprisonment, the sentence for manslaughter is at the discretion of the court (although it could, in theory, be life imprisonment). In November 2006, the Law Commission published its Report entitled Murder, Manslaughter and Infanticide (Law Com No 304). As will be seen throughout this chapter the Report makes proposals in relation to the structure of homicide offences, the fault element in murder, the partial defences to murder, and mercy killings. Extracts are set out at appropriate points in the chapter. In summary the Report recommends the enactment of a new Homicide Act (although no draft Bill is appended to the Report) which would have the effect of replacing the current murder/manslaughter dichotomy with a ladder of offences ranging from first degree murder, second degree murder through to manslaughter. The Report also recommends reforms to partial defences such as provocation and diminished responsibility both of which would operate so as to reduce the defendant’s liability from first degree murder to second degree murder. 4.1.1 LAW COM NO 304: PROPOSALS FOR A NEW ‘LADDER’ OF HOMICIDE OFFENCES 1.34 Our consultees almost all agreed that the two-category structure of the general law of homicide is no longer fit for purpose. Consequently, we are proposing to replace the two-tier structure with a three-tier structure. Such a structure will be much better equipped to deal with the stresses and strains on the law and with the issues of appropriate labelling and sentencing. The three tiers in descending order of seriousness would be first degree murder, second degree murder and manslaughter. 1.35 Under our recommendations, first degree murder would encompass: (1) intentional killing; or (2) killing through an intention to do serious injury with an awareness of a serious risk of causing death. 1.36 Second degree murder would encompass: (1) killing through an intention to do serious injury (even without an awareness of a serious risk of causing death); or (2) killing where there was an awareness of a serious risk of causing death, coupled with an intention to cause either: 146 HOMICIDE (a) some injury; (b) a fear of injury; or (c) a risk of injury. 1.37 Second degree murder would also be the result when a partial defence of provocation, diminished responsibility or killing pursuant to a suicide pact is successfully pleaded to first degree murder. 1.38 Manslaughter would encompass: (1) where death was caused by a criminal act intended to cause injury, or where the offender was aware that the criminal act involved a serious risk of causing injury; or (2) where there was gross negligence as to causing death. ... 1.63 We recommend that there should be a new Homicide Act for England and Wales. The new Act should replace the Homicide Act 1957. The new Act should, for the first time, provide clear and comprehensive definitions of the homicide offences and the partial defences. In addition, the new Act should extend the full defence of duress to the offences of first degree and second degree murder and attempted murder, and improve the procedure for dealing with infanticide cases. 1.64 In structuring the general homicide offences we have been guided by a key principle: the ‘ladder’ principle. Individual offences of homicide should exist within a graduated system or hierarchy of offences. This system or hierarchy should reflect the offence’s degree of seriousness, without too much overlap between individual offences. The main reason for adopting the ‘ladder’ principle is as Lord Bingham has recently put it (in a slightly different context): The interests of justice are not served if a defendant who has committed a lesser offence is either convicted of a greater offence, exposing him to greater punishment than his crime deserves, or acquitted altogether, enabling him to escape the measure of punishment which his crime deserves. The objective must be that defendants are neither over-convicted nor underconvicted . . . (Coutts [2006] UKHL 39, [2006] 1 WLR 2154 at [12]) The structure of offences 1.67 We believe that the following structure would make the law of homicide more coherent and comprehensible, whilst respecting the principles just set out above: (1) First degree murder (mandatory life penalty) (a) Killing intentionally. (b) Killing where there was an intention to do serious injury, coupled with an awareness of a serious risk of causing death. (2) Second degree murder (discretionary life maximum penalty) (a) Killing where the offender intended to do serious injury. ... (b) Killing where the offender intended to cause some injury or a fear or risk of injury, and was aware of a serious risk of causing death. (c) Killing in which there is a partial defence to what would otherwise be first degree murder. 147 CASES AND MATERIALS ON CRIMINAL LAW (3) Manslaughter (discretionary life maximum penalty) (a) Killing through gross negligence as to a risk of causing death. (b) Killing through a criminal act: (i) intended to cause injury; or (ii) where there was an awareness that the act involved a serious risk of causing injury. (c) Participating in a joint criminal venture in the course of which another participant commits first or second degree murder, in circumstances where it should have been obvious that first or second degree murder might be committed by another participant. Partial defences reducing first degree murder to second degree murder 1.68 The following partial defences would reduce first degree murder to second degree murder: (1) provocation (gross provocation or fear of serious violence); (2) diminished responsibility; (3) participation in a suicide pact. ... The different fault elements and the ‘ladder’ approach 3.4 In this Part, we consider the meanings of ‘intention’, ‘awareness’ of risk, and ‘serious’ risk. We set out what we believe should be the fault element of what hitherto has been known as ‘unlawful and dangerous act’ manslaughter. Finally, we recommend the adoption of our existing recommendations for the meaning of ‘gross negligence’ manslaughter’s fault element. 3.5 Different fault elements serve to create a ‘ladder’ of crime seriousness, both in the existing law and in our recommendations. It is of vital importance to remember that any scheme that divides offences using varying fault elements will necessarily involve some degree of overlap: the most culpable cases in a lower tier may well appear worse than the least culpable cases in the next tier up. This phenomenon will occur in any sophisticated system for grading offences. This overlap does not weaken the case for having clear boundaries between offences. Neither does it necessarily mean that the boundaries have been drawn in the wrong place nor that the wrong terms have been used to mark those boundaries. 3.6 Under our recommendations, the fault elements create a ‘ladder’ of crime seriousness in one or both of at least two important ways. First, the less serious crimes typically have less grave fault elements. So, for example, manslaughter can be committed by gross negligence whereas murder cannot. 3.7 Secondly, the ‘ladder’ of crime seriousness is shaped by the nature or degree of harm or injury to which a fault element relates. Where death has been caused, a simple intention to do some injury is sufficient for a manslaughter conviction. However, if an awareness of a serious risk of causing death accompanied that intention, a conviction for second degree murder is justified. Further up the ladder, whilst an intention to do serious injury suffices to convict a killer of second degree murder, something more is required to justify a first degree murder conviction. First degree murder requires nothing short of an intention to kill or the morally equivalent intention to do serious injury in the awareness that this involves a serious risk of causing death. 3.8 This ‘ladder’ approach produces the following structure . . . (1) First degree murder (a) An intention to kill; or (b) an intention to do serious injury, aware that one’s conduct involves a serious risk of causing death. 148 HOMICIDE (2) Second degree murder (a) An intention to do serious injury; or (b) an intention to cause: (i) injury; (ii) a fear of injury; or (iii) a risk of injury in the awareness that one’s conduct involves a serious risk of causing death. (3) Manslaughter (a) Manifesting gross negligence as to a risk of causing death; (b) doing a criminal act that the defendant intends to cause injury, or that he or she is aware involves a serious risk of causing some injury. 4.2 THE ACTUS REUS OF HOMICIDE – THE VICTIM MUST BE A ‘LIFE IN BEING’ The prosecution must prove that the victim in a murder or manslaughter case was a ‘reasonable creature’ – this means a creature capable of reasoning: that is, any human being. Many of the old cases that dealt with this issue arose out of botched abortions or deliveries; hence the term ‘life in being’ came to mean a child that had been fully expelled from its mother’s body and capable of existence independent of its mother. With the introduction of statutory offences specifically designed to protect the unborn, in particular the Infant Life (Preservation) Act 1929, the matter has given rise to less litigation. The 1929 Act provides that any person who intentionally causes the death of a child capable of being born alive commits an offence carrying with it the possibility of life imprisonment. The Act contains a rebuttable presumption in s 1(2) that a child is capable of being born alive once 28 weeks of gestation have passed. If there was doubt, therefore, as to whether a child had been killed whilst in utero, or after having been born, the prosecution would simply proceed on the basis of alternative counts, murder and a charge under the 1929 Act. Two cases have, however, given rise to a consideration of the issue in the modern era, and are thus worthy of consideration on this point. Attorney General’s Ref (No 3 of 1994) [1997] 3 All ER 936 For the facts see the extract from this case at Chapter 4.5. The following extract deals with the extent to which a foetus could be the victim of a homicide. Lord Mustill: Except under statute an embryo or foetus in utero cannot be the victim of a crime of violence. In particular, violence to the foetus which causes its death in utero is not a murder. The foundation authority is the definition by Sir Edward Coke of murder . . . The proposition was developed by the same writer into examples of prenatal injuries as follows: If a woman be quick with child, and by a potion or otherwise killeth it in her womb; or if a man beat her, whereby the child dieth in her body, and she is delivered of a dead child; this is a great misprision, and no murder . . . 149 CASES AND MATERIALS ON CRIMINAL LAW It is unnecessary to look behind this statement to the earlier authorities, for its correctness as a general principle, as distinct from its application to babies expiring in the course of delivery or very shortly thereafter, has never been controverted . . . Lord Mustill then turned to consider the two arguments put forward by the Crown on this point. The decision of the Court of Appeal founded on the proposition that the foetus is part of the mother, so that an intention to cause really serious bodily injury to the mother is equivalent to the same intent directed towards the foetus. This intent could be added to the actus reus, constituted (as I understand it) by the creation of such a change in the environment of the foetus through the injury to the mother that the baby would be born at a time when, as events proved, it would not survive. I must dissent from this proposition for I believe it to be wholly unfounded in fact. Obviously, nobody would assert that once the mother [M] had been delivered of S [the baby], the baby and her mother were in any sense ‘the same’. Not only were they physically separate, but they were each unique human beings, though no doubt with many features of resemblance. The reason for the uniqueness of S was that the development of her own special characteristics had been enabled and bounded by the collection of genes handed down not only by M but also by the natural father. This collection was different from the genes which had enabled and bounded the development of M, for these had been handed down by her own mother and natural father. S and her mother were closely related but, even apart from differing environmental influences, they were not, had not been, and in the future never would be ‘the same’. There was, of course, an intimate bond between the foetus and the mother, created by the total dependence of the foetus on the protective physical environment furnished by the mother, and on the supply by the mother through the physical linkage between them of the nutriments, oxygen and other substances essential to foetal life and development. The emotional bond between the mother and her unborn child was also of a very special kind. But the relationship was one of bond, not of identity. The mother and the foetus were two distinct organisms living symbiotically, not a single organism with two aspects. The mother’s leg was part of the mother; the foetus was not. The only other ground for identifying the foetus with the mother that I can envisage is a chain of reasoning on the following lines. All the case law shows that the child does not attain a sufficient human personality to be the subject of a crime of violence, and in particular of a crime of murder, until it enjoys an existence separate from its mother; hence, whilst it is in the womb it does not have a human personality; hence it must share a human personality with its mother. This seems to me an entire non sequitur, for it omits the possibility that the foetus does not (for the purposes of the law of homicide and violent crime) have any relevant type of personality but is an organism sui generis lacking at this stage the entire range of characteristics both of the mother to which it is physically linked and of the complete human being which it will later become. The argument involves one fiction too far, and I would reject it . . . The second argument: the foetus as a separate organism . . . I would, therefore, reject the reasoning which assumes that since (in the eyes of English law) the foetus does not have the attributes which make it a ‘person’ it must be an adjunct of the mother. 150 HOMICIDE Eschewing all religious and political debate I would say that the foetus is neither. It is a unique organism. To apply to such an organism the principles of a law evolved in relation to autonomous beings is bound to mislead . . . I turn to deal more briefly with the remaining rules. The third rule, it will be recalled, is that a foetus cannot be the victim of murder. I see no profit in an attempt to treat the medieval origins of this rule. It is sufficient to say that is established beyond doubt for the criminal law, as for the civil law (Burton v Islington Health Authority [1993] QB 204) that the child en ventre sa mère does not have a distinct human personality, whose extinguishment gives rise to any penalties or liabilities at common law. Re A (Children) (Conjoined Twins) [2000] 4 All ER 961 The court was asked to rule on the legality of an operation to separate conjoined twins, Jodie and Mary. Mary, the weaker of the two conjoined twins, was incapable of independent existence. If the operation went ahead Jodie’s life would be saved but Mary would definitely die. One of the issues was whether or not, given that she lacked the capability of sustaining her own life, Mary should be regarded as a human being for the purposes of homicide. Brooke LJ: Is Mary a reasonable creature? For the reasons given by Ward LJ and Robert Walker LJ, with which I agree, I am satisfied that Mary’s life is a human life that falls to be protected by the law of murder. Although she has for all practical purposes a useless brain, a useless heart and useless lungs, she is alive, and it would in my judgment be an act of murder if someone deliberately acted so as to extinguish that life unless a justification or excuse could be shown which English law is willing to recognise. In recent editions of Archbold, including the 2000 edition, the editors have suggested that the word ‘reasonable’ in Coke’s definition (which they wrongly ascribe to Lord Hale in para 19.1) related to the appearance rather than the mental capacity of the victim and was apt to exclude ‘monstrous births’. Spurred on by this suggestion, and because the present case broke so much novel ground, we explored with counsel some of the thinking of seventeenth century English philosophers in an effort to ascertain what Coke may have meant when he used the expression ‘any reasonable creature’ as part of his definition. We had in mind their absorbing interest in the nature of ‘strange and deformed births’ and ‘monstrous births’ (see Thomas Hobbes, Elements of Law, II.10.8, and John Locke, An Essay Concerning Human Understanding, III.III.17, III.VI.15 and 26 and III.XI.20). In Attorney General’s Ref (No 3 of 1994) [1998] AC 245 Lord Mustill referred at p 254F to another statement in Coke’s Institutes, not mentioned in that passage in Archbold, where after referring to prenatal injuries which lead to the delivery of a dead child, Coke writes (Co Inst Pt III, Ch 7, p 50): ‘if the childe be born alive, and dieth of the potion, battery, or other cause, this is murder; for in law it is accounted a reasonable creature, in rerum natura, when it is born alive’. In these circumstances I have no hesitation in accepting the submission by Miss Davies QC (whose assistance, as the friend of the court, was of the greatest value), which was in these terms: In The Sanctity of Life and the Criminal Law (1958), Professor Glanville Williams stated at p 31: 151 CASES AND MATERIALS ON CRIMINAL LAW “There is, indeed some kind of legal argument that a ‘monster’ is not protected even under the existing law. This argument depends upon the very old legal writers, because the matter has not been considered in any modern work or in any court judgment.” After discussing the meaning of the word ‘monster’ (which might originally have connoted animal paternity) he states at pp 33–34: ‘Locked (Siamese) twins present a special case, though they are treated in medical works as a species of monster. Here the recent medical practice is to attempt a severance, notwithstanding the risks involved. Either the twins are successfully unlocked, or they die’ [emphasis added]. It is implicit in this analysis that the author is of the view that ‘Siamese’ twins are capable of being murdered and the amicus curiae supports this view. Advances in medical treatment of deformed neonates suggest that the criminal law’s protection should be as wide as possible and a conclusion that a creature in being was not reasonable would be confined only to the most extreme cases, of which this is not an example. Whatever might have been thought of as ‘monstrous’ by Bracton, Coke, Blackstone, Locke and Hobbes, different considerations would clearly apply today. This proposition might be tested in this way: suppose an intruder broke into the hospital and stabbed twin M causing her death. Clearly it could not be said that his actions would be outside the ambit of the law of homicide. Modern English statute law has mitigated the prospective burden that might otherwise fall on the parents of severely handicapped children and their families if they are willing to avail themselves of its protection at any time up to the time the child (or children) is born. Section 1(1)(d) of the Abortion Act 1967, as substituted by s 37(1) of the Human Fertilisation and Embryology Act 1990, provides: Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith . . . that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be severely handicapped. Once a seriously handicapped child is born alive, the position changes, and it is as much entitled to the protection of the criminal law as any other human being. The governing principle is sometimes described as the universality of rights. In the Canadian case of Perka v R 13 DLR (4th) 1 Wilson J said at p 31 that the principle of the universality of rights demands that all individuals whose actions are subjected to legal evaluation must be considered equal in standing. It follows that unless there is some special exception to which we can have recourse, in the eyes of the law Mary’s right to life must be accorded equal status with her sister Jodie’s right to life. In this context it is wholly illegitimate to introduce considerations that relate to the quality, or the potential quality, of each sister’s life. 152 HOMICIDE 4.3 CAUSATION Some criminal offences, such as murder and wounding, are referred to as ‘result crimes’ on the basis that establishing the actus reus involves proof that the defendant caused the prohibited result (that is, the death of the victim, or the wounding) both as a matter of fact and as a matter of law. In effect the prosecution must establish a chain of causation between the defendant’s act (or in some cases omission) and the prohibited consequence. As will be seen, it may be possible for a defendant to provide evidence that the chain of causation has been broken by a novus actus interveniens (new intervening act), in which case liability for the completed crime cannot be established, although the defendant might still bear liability for having attempted to commit the offence; see further Chapter 8. The majority of case extracts in this chapter are drawn from cases that involve defendants charged with murder or manslaughter. This is not surprising given that homicide cases are likely to throw up interesting and novel problems of causation. It should be borne in mind, however, that the general principles of causation enunciated by the courts are of application to the vast majority of result crimes. 4.3.1 CAUSATION IN FACT The first step in establishing a chain of causation is for the prosecution to prove that the defendant’s act or omission is a cause in fact of the prohibited result. This is normally done by applying the ‘but for’ test. The question asked is: ‘But for the defendant’s act or omission would the result have occurred?’ If the answer is ‘no’ causation in fact is established. If the answer is ‘yes’, it means that the result would have occurred in any event – thus the defendant’s act or omission was not a cause in fact of the result. R v White [1908–10] All ER Rep 340 (CA) The defendant placed poison in his mother’s drink. She was found dead on the sofa a little later. The expert evidence revealed that she had died from some external cause such as fright or heart failure before the poison could take effect. The defendant was convicted of attempted murder and appealed unsuccessfully against his conviction. Bray J: [The defendant] . . . therefore, perfectly well knew the deadly character of this poison, and supposed that a very small quantity would produce an instant effect. Upon consideration of all the evidence, including the denial of the prisoner that he had put anything into the wine glass at all, we are of opinion that there was sufficient evidence to warrant the jury also in coming to the conclusion that the appellant put the cyanide in the glass with intent to murder his mother. The next point made was that, if he put it there with that intent, there was no attempt at murder; that the jury must have acted upon a suggestion of the learned judge in his summing-up that this was one, the first or some later, of a series of doses which he intended to administer and so cause her death by slow poisoning, and if they did act on that suggestion there was no attempt at 153 CASES AND MATERIALS ON CRIMINAL LAW murder, because the act of which he was guilty – the putting of poison in the wine glass – was a completed act and could not be and was not intended by the appellant to have the effect of killing her at once. It could not kill unless it were followed by other acts which he might never have done. There seems no doubt that the learned judge in effect did tell the jury that, if this was a case of slow poisoning, the appellant would be guilty of the attempt to murder. We are of opinion that this direction was right, and that the completion or attempted completion of one of a series of acts intended by a man to result in killing is an attempt to murder even though this completed act would not, unless followed by the other acts, result in killing. It might be the beginning of the attempt, but would none the less be an attempt. While saying this, we must say also that we do not think it likely the jury acted on this suggestion, because there was nothing to show that the administration of small doses of cyanide of potassium, would have a cumulative effect; we think it much more likely, having regard to the statement made by the prisoner to the witness Carden, that the appellant supposed he had put sufficient poison in the glass to kill her. This, of course, would be an attempt to murder . . . 4.3.2 CAUSATION IN LAW: BASIC PRINCIPLES Assuming causation in fact can be established, attention shifts to whether or not the defendant can be said to have caused the death as a matter of law. This is a question of fact that will be determined by the jury in the light of the trial judge’s directions as to the relevant law. In the vast majority of cases no specific direction is required – it will be obvious that the defendant caused the death and no issue arises as to any intervening cause. A simple direction in terms of whether or not the defendant’s act was an operating and substantial cause of death will suffice – see further R v Smith [1959] 2 QB 35, extracted below. Where there is some intervening cause of death the issue for the jury will be to decide whether the death was nevertheless a reasonably foreseeable consequence of the defendant’s act. Only if the intervening cause amounts to a ‘novus actus’, that is, something that breaks the chain of causation, will the prosecution have failed to establish causation in law. R v Smith [1959] 2 QB 35 (CA) The appellant, a private soldier in the King’s Regiment, took part in a fight between a company of his regiment and a company of the Gloucestershire Regiment, who were sharing barracks in Germany, on the night of 13 April 1958. Three men of the Gloucesters received stab wounds. One of them subsequently died. One of the issues before the Court of Appeal was the extent to which the inadequacies of the treatment received by the deceased might be regarded as the cause of death, as opposed to the stab wounds inflicted by the defendant. Lord Parker CJ: . . . The second ground concerns a question of causation . . . It seems to the court that if at the time of death the original wound is still an operating cause and a substantial cause, then the death can properly be said to be the result of the wound, albeit, that some other cause of death is also 154 HOMICIDE operating. Only if it can be said that the original wounding is merely the setting in which another cause operates can it be said that the death does not result from the wound. Putting it in another way, only if the second cause is so overwhelming as to make the original wound merely part of the history can it be said that the death does not flow from the wound . . . In the present case it is true that the judge-advocate did not in his summing-up go into the refinements of causation. Indeed, in the opinion of this court he was probably wise to refrain from doing so. He did leave the broad question to the court whether they were satisfied that the wound had caused the death in the sense that the death flowed from the wound, albeit that the treatment he received was in the light of after-knowledge a bad thing. In the opinion of this court that was on the facts of the case a perfectly adequate summing-up on causation; I say ‘on the facts of the case’ because, in the opinion of the court, they can only lead to one conclusion: a man is stabbed in the back, his lung is pierced and haemorrhage results; two hours later he dies of haemorrhage from that wound; in the interval there is no time for a careful examination, and the treatment given turns out in the light of subsequent knowledge to have been inappropriate and, indeed, harmful. In those circumstances no reasonable jury or court could, properly directed, in our view possibly come to any other conclusion than that the death resulted from the original wound. Accordingly, the court dismisses this appeal. R v Warburton and another [2006] EWCA Crim 627, confirms that a simple direction in terms of whether or not the acts for which D was responsible significantly contributed to P’s death will suffice. 4.3.3 NOVUS ACTUS INTERVENIENS – CAN THE CHAIN OF CAUSATION BE BROKEN BY THE ACTIONS OF THE VICTIM IN REFUSING MEDICAL TREATMENT? R v Blaue [1975] 1 WLR 1411 (CA) Lawton LJ: . . . The victim was a young girl aged 18. She was a Jehovah’s Witness. She professed the tenets of that sect and lived her life by them. During the late afternoon of 3 May 1974 the appellant came into her house and asked her for sexual intercourse. She refused. He then attacked her with a knife inflicting four serious wounds. One pierced her lung. The appellant ran away. The girl staggered out into the road. She collapsed outside a neighbour’s house. An ambulance took her to hospital, where she arrived at about 7.30 pm. Soon afterwards she was admitted to the intensive care ward. At about 8.30 pm she was examined by the surgical registrar who quickly decided that serious injury had been caused which would require surgery. As she had lost a lot of blood, before there could be an operation there would have to be a blood transfusion. As soon as the girl appreciated that the surgeon was thinking of organising a blood transfusion for her, she said that she should not be given one and that she would not have one. To have one, she said, would be contrary to her religious beliefs as a Jehovah’s Witness. She was told that if she did not have a blood transfusion she would die. She said that she did not care if she did die. She was asked to acknowledge in writing that she had refused to have a blood transfusion under any circumstances. She did so. The Crown admitted at the trial that had she had a blood transfusion 155 CASES AND MATERIALS ON CRIMINAL LAW when advised to have one she would not have died. She did so at 12.45 am the next day. The evidence called by the Crown proved that at all relevant times she was conscious and decided as she did deliberately, and knowing what the consequences of her decision would be. In his final speech to the jury, counsel for the Crown accepted that the girl’s refusal to have a blood transfusion was a cause of her death. The prosecution did not challenge the defence evidence that the appellant was suffering from diminished responsibility. Towards the end of the trial and before the summing-up started counsel on both sides made submissions as to how the case should be put to the jury. Counsel then appearing for the appellant invited the judge to direct the jury to acquit the appellant generally on the count of murder. His argument was that the girl’s refusal to have a blood transfusion had broken the chain of causation between the stabbing and her death. As an alternative he submitted that the jury should be left to decide whether the chain of causation had been broken. Counsel for the Crown submitted that the judge should direct the jury to convict, because no facts were in issue and when the law was applied to the facts there was only one possible verdict, i.e. manslaughter by reason of diminished responsibility . . . The physical cause of death in this case was bleeding into the pleural cavity arising from the penetration of the lung. This had not been brought about by any decision made by the deceased girl but by the stab wound. Counsel for the appellant tried to overcome this line of reasoning by submitting that the jury should have been directed that if they thought the girl’s decision not to have a blood transfusion was an unreasonable one, then the chain of causation would have been broken. At once the question arises – reasonable by whose standards? Those of Jehovah’s Witnesses? Humanists? Roman Catholics? Protestants of Anglo-Saxon descent? The man on the Clapham omnibus? But he might well be an admirer of Eleazar who suffered death rather than eat the flesh of swine (see 2 Maccabees, Chapter 6 vv 18–31) or of Sir Thomas More who, unlike nearly all his contemporaries, was unwilling to accept Henry VIII as Head of the Church of England. Those brought up in the Hebraic and Christian traditions would probably be reluctant to accept that these martyrs caused their own deaths. As was pointed out to counsel for the appellant in the course of argument, two cases, each raising the same issue of reasonableness because of religious beliefs, could produce different verdicts depending on where the cases were tried. A jury drawn from Preston, sometimes said to be the most Catholic town in England, might have different views about martyrdom to one drawn from the inner suburbs of London . . . It has been the policy of the law that those who use violence on other people must take their victims as they find them. This in our judgment means the whole man, not just the physical man. It does not lie in the mouth of the assailant to say that his victim’s religious beliefs which inhibited her from accepting certain kinds of treatment were unreasonable. The question for decision is what caused her death. The answer is the stab wound. The fact that the victim refused to stop this end coming about did not break the causal connection between the act and death. . . . The issue of the cause of death in a trial for either murder or manslaughter is one of fact for the jury to decide. But if, as in this case, there is no conflict of evidence and all the jury has to do is to apply the law to the admitted facts, the judge is entitled to tell the jury what the result of that application will be. In this case the judge would have been entitled to have told the jury that the appellant’s stab wound was an operative cause of the death. The appeal fails. See further R v Holland (1841) 2 Mood & R 351. 156 HOMICIDE 4.3.4 NOVUS ACTUS INTERVENIENS – CAN THE CHAIN OF CAUSATION BE BROKEN BY THE VICTIM’S SELF-ADMINISTRATION OF DRUGS? Cases involving the supply of controlled drugs by D to P, where P consumes what transpires to be a lethal quantity of the drugs of his own volition, have presented difficulties for the courts. The issue of causation in law is plain – had D not supplied the drugs to P the death would not have occurred. As regards causation in law, the operating and substantial cause of death is the self-administration of the drugs by P. As Waller LJ observed when dealing with such a scenario in R v Dalby [1982] 1 All ER 916: ‘In this case the supply of drugs would itself have caused no harm unless the deceased had subsequently used the drugs in a form and quantity which was dangerous.’ Similarly in R v Dias [2002] Crim LR 490, Keene LJ observed: . . . [the] supply of heroin was undoubtedly unlawful, but the difficulty about relying on it as a basis for manslaughter would have been one of causation. [The deceased] was an adult and able to decide for himself whether or not to inject the heroin. His own action in injecting himself might well have been seen as an intervening act between the supply of the drug by the appellant and the death of [the deceased]. The chain of causation was probably broken by that intervening act . . . We accept that there may be situations where a jury could find manslaughter in cases such as this, so long as they were satisfied so as to be sure that the chain of causation was not broken . . . The recipient does not have to inject the drug which he is encouraged and assisted to take. He has a choice. It may be that in some circumstances the causative chain will still remain. That is a matter for the jury to decide . . . It may seem to some that there is morally not a great deal between this situation where A hands B a syringe containing a drug such as heroin, with death resulting, and that where A injects B with his consent with the contents of the syringe. But the vital difference (and this is why causation cannot be assumed) is that the former situation involves an act of B’s taken voluntarily and leading to his death. R v Finlay [2003] EWCA Crim 3868 D prepared a syringe containing a heroin mixture that the victim, Jasmine Grosvenor, used to inject herself. The dosage proved fatal. D appealed, unsuccessfully, on the basis that the victim’s voluntary act had broken the chain of causation. Buxton LJ: The test is one of causation. In this case, could it be said that the act of the deceased in taking up the syringe and using it on herself, which are to be assumed to be the facts, prevented Mr Finlay’s previous acts being causative of the injection . . . In . . . Environment Agency v Empress Car Company [1999] 2 AC 22, [1998] 1 All ER 481 . . . Lord Hoffmann said that the prosecution need not prove that the Defendant did something which was the immediate cause of the death. When the prosecution had identified an act done by the Defendant, the court had to decide, particularly when a necessary condition of the event complained of was the act of a third party, whether that 157 CASES AND MATERIALS ON CRIMINAL LAW act should be regarded as a matter of ordinary occurrence which would not negative the effect of the Defendant’s act; or something extraordinary, on the other hand which would leave open a finding that the Defendant did not cause the criminal act or event. That, said Lord Hoffmann, with the agreement of the rest of the House of Lords, was a question of fact and degree to which, in the case before him, the justices had to apply their common sense, as in a jury trial the jury has to apply its common sense. That was exactly the way in which the judge directed himself in his observations on the application that count 2 should be removed from the jury. And that is exactly how he directed the jury when he came to sum up. At p 14F he said this: Whether or not the Defendant caused heroin to be administered to or taken by the deceased is a question of fact and degree which you have to decide, and you should decide it by applying your common sense and knowledge of the world to the facts that you find to be proved by the evidence. The prosecution do not have to show that what the defendant did or said was a sole cause of the injection of heroin into the deceased. Where the Defendant has produced the situation in which there is the possibility for heroin to be administered to or taken by Jasmine Grosvenor, but the actual injection of heroin involves an act on part of another – in this case Jasmine herself – then if the injection of heroin is to be regarded in your view as a normal fact of life, in the situation proved by the evidence, then the act of the other person will not prevent the Defendant’s deeds or words being a cause, or one of the causes, of that injection. On the other hand, if in the situation proved by the evidence, injection is to be regarded as an extraordinary event, then it would be open to you to conclude that the defendant did not cause heroin to be administered to or taken by the deceased. . . . Mr Gibson-Lee [for the appellant] really advances two reasons why the judge should not have taken that view . . . The first is that on the assumption that it was the deceased who injected herself, that act of itself breaks the chain of causation between whatever it was that the accused did and the actual event of injection . . . We have to say that that approach is not correct. It seeks to make the existence of what used to be called a novus actus interveniens, and can now more simply be regarded as an act of another person, as something that as a matter of law breaks the chain of causation. It was that view or assumption that was rejected by the House of Lords in the Empress Car case. Intervening acts are only a factor to be taken into account by the jury in looking at all the circumstances, as the judge told them to do. Secondly, Mr Gibson-Lee says that in any event the facts of this case were such that it simply was not open to the jury to conclude that Mr Finlay had caused the injection. He had done no more than form part of the background, or provide the opportunity of which the deceased availed herself: in other words, that the case was so extreme or so clear that it was not appropriate for the jury to look at it as a case of causation at all. The judge did not take that view, nor do we. The unhappy circumstances of this case, and in particular the unhappy circumstances of this lady’s life and condition, in our view indicate that it was certainly open to a jury to conclude in Empress Car terms that in those circumstances, and we emphasise that, it was what Lord Hoffmann described as an ‘ordinary’ occurrence for the purpose of the law of causation that she should have taken advantage of whatever it was that Mr Finlay did towards her or with her. It is not necessary for that conclusion to decide, as Mr Gibson-Lee suggested it was, that she was incapable of knowing what she was doing or had ceased entirely to be a rational being. All that is necessary, in our judgment, is that the circumstances should be such that it could properly be said to fall within the ambit of possible and ordinary events that she will take the opportunity given 158 HOMICIDE her. We quite accept that, on facts different from these, there might be more difficulty in coming to that conclusion. R v Kennedy [2005] EWCA Crim 685 D prepared a dose of heroin for P and gave P a syringe ready for self injection. P injected himself and shortly after experienced breathing difficulties brought on by the effect of the heroin. Following P’s death D was convicted of manslaughter. D’s original appeal against conviction was dismissed – see [1999] Crim LR 65. In the light of subsequent decisions, however, D’s case was referred back to the Court of Appeal by the Criminal Cases Review Commission under s 9 of the Criminal Appeal Act 1995. The key argument before the Court of Appeal on the referral back was as to whether a free, deliberate and informed act by P in deciding to inject himself with the heroin would break the chain of causation between the supply of the heroin by D and the death of P. Lord Woolf CJ (dismissing the appeal): . . . before turning to [R v Finlay [2003] EWCA Crim 3868 ] . . . it is important to point out where the authorities that we have already cited take us; i) ii) iii) iv) v) That a person who kills himself is not committing a crime. Contrary to part of the judgment of Waller LJ (Junior) on the first appeal, even though a person may encourage another to take his own life, he is not an accessory to manslaughter on this ground alone as there is no principal of whom he is the accessory. If, however, the role played by the defendant, in concert with the deceased, amounts to administering or causing the drug to be administered, then that person will have committed an offence under s 23 of the 1861 Act and he will be guilty of an unlawful act. The fact that the deceased may die does not affect that situation. Furthermore, if the defendant participates in an offence involving the administration of the drug, there could be no question of difficulties in relation to causation. On the first appeal, Waller LJ (Junior) was right when he regarded ‘the critical question to which the jury must direct its mind, where (as in the instance case) there is an act causative of death performed by, in this case the deceased himself, is whether the appellant can be said to be jointly responsible for the carrying out of that act’ (emphasis added). The critical comments in relation to the judgment on the first appeal are directed to other parts of Waller LJ’s judgment, when he indicates that it would be sufficient if the appellant was an accessory. Waller LJ, for example, stated ‘if the appellant assisted in and wilfully encouraged that unlawful conduct [i.e. the self-injection] he would himself be acting unlawfully’ (emphasis added). If the encouragement is isolated from the assisting, then there would be a basis for the criticism. ... 40. In Finlay, Buxton LJ was suggesting that the approach the House of Lords appropriately applied in the Empress case to a statute dealing with pollution could be applied equally here to the issues of causation where the statutory context is very different. It is, however, to be noted 159 CASES AND MATERIALS ON CRIMINAL LAW that the question of causation can arise on a charge of manslaughter when s 23 of the 1861 Act is not relied upon, and in two different circumstances when s 23 is relied upon. It can arise on the general question of whether the defendant’s unlawful action caused the deceased’s death. It can also arise on the question of whether the defendant caused to be administered ‘any poison or other destructive or noxious thing contrary to s 23’. These are distinct situations. 41. In his summing-up in Finlay, the trial judge referred to the need for the prosecution, in relation to the s 23 offence, to prove that the defendant caused the heroin to be administered to, or to be taken by, the deceased. In that context he referred to the Empress case. As we understand the position, it was to this context that Buxton LJ was addressing himself when he referred with approval to the approach of the judge to establishing causation in accordance with Lord Hoffmann’s speech in the Empress case. In that context, this appears to us to be, with respect, an unnecessary sophistication. All the jury had to decide as to causation was whether Finlay’s actions were as a matter of fact causative of the deceased taking the action to administer the drug. If it was, his conduct contravened s 23 and was unlawful. Otherwise it was not. 42. It has to be remembered that when considering whether the defendant’s act has caused death, what amounts to causation in a case of this nature is not dependent upon a particular statutory context. Accordingly if a defendant is acting in concert with the deceased, what the deceased does in concert with the defendant will not break the chain of causation, even though the general principles as to causation have to be applied. This was recognised by Lord Steyn when he qualified the general position when saying in R v Latif & Others [1996] 2 Cr App R 92 at p 104: The free, deliberate and informed intervention of a second person, who intends to exploit the situation created by the first, but is not acting in concert with him is held to relieve the first actor of criminal responsibility. (Emphasis added) 43. If Kennedy either caused the deceased to administer the drug or was acting jointly with the deceased in administering the drug, Kennedy would be acting in concert with the deceased and there would be no breach in the chain of causation. 44. The exception made for the person ‘acting in concert’ is of considerable importance. The fact that a person who takes his own life does not commit an unlawful act by so doing, does not mean that a person who helps him to commit that act, if that helping act is contrary to s 23, does not commit an unlawful act. On the contrary, the helper does commit an unlawful act and could be charged under s 23 and convicted. He could also be convicted of manslaughter if the person he was helping dies in consequence. The requirement of an unlawful act is fulfilled. There should, in the appropriate case, be no difficulty in establishing foreseeability of risk. Nor should there be difficulty in establishing causation because the participants were acting in concert. ... Conclusions 51. In view of the conclusions that we have come to as a result of our examination of the authorities, it appears to us that it was open to the jury to convict the appellant of manslaughter. To convict, the jury had to be satisfied that, when the heroin was handed to the deceased ‘for immediate injection’, he and the deceased were both engaged in the one activity of administering the heroin. These were not necessarily to be regarded as two separate activities; and the question that remains is whether the jury were satisfied that this was the situation. If the jury were satisfied 160 HOMICIDE of this then the appellant was responsible for taking the action in concert with the deceased to enable the deceased to inject himself with the syringe of heroin which had been made ready for his immediate use. 52. In our view, the jury would have been entitled to find (and indeed it is an appropriate finding) that in these circumstances the appellant and the deceased were jointly engaged in administering the heroin. This was the conclusion of this Court on the first appeal, as we understand Waller LJ’s judgment, and we do not feel it necessary to take a different view, though we do accept that the issue could have been left by the trial judge to the jury in more clear terms than it was. 53. The point in this case is that the appellant and the deceased were carrying out a ‘combined operation’ for which they were jointly responsible. Their actions were similar to what happens frequently when carrying out lawful injections: one nurse may carry out certain preparatory actions (including preparing the syringe) and hand it to a colleague who inserts the needle and administers the injection, after which the other nurse may apply a plaster. In such a situation, both nurses can be regarded as administering the drug. They are working as a team. Both their actions are necessary. They are interlinked but separate parts in the overall process of administering the drug. In these circumstances, as Waller LJ stated on the first appeal, they ‘can be said to be jointly responsible for carrying out that act’. 54. Whether the necessary linkage existed between the actions of the appellant and the deceased was very much a matter for the jury to determine. The question then arises as to whether the trial judge in the summing-up expressed the issue in sufficiently clear terms for the jury? As to this, we share similar reservations to those expressed by Waller LJ in his judgment on the first appeal. There was no need for the jury to find the encouragement that Waller LJ thought was necessary. However, the jury did have to find that the appellant and the deceased were acting in concert in administering the heroin. 55. In addition, there is the fact that Mr Montrose, who represented the appellant at the trial, was not allowed to address the jury on the question of causation. However, here we have less reservations than the court on the first appeal, since if the deceased and the appellant were acting in concert in administering the heroin, it seems to us inevitable that the unlawful act, contrary to s 23 of the 1861 Act, was causative of the deceased’s death. 4.3.5 NOVUS ACTUS INTERVENIENS – CAN THE CHAIN OF CAUSATION BE BROKEN BY THE ACTIONS OF THE VICTIM IN SEEKING TO ESCAPE FROM THE DEFENDANT? R v Roberts (1971) 56 Cr App R 95 (CA) P left a party at about 3 am, having agreed to travel with D in his car to another party. After travelling some distance D made indecent advances towards P and she jumped out of the car. She suffered some concussion and grazing and was detained in hospital for three days. The defendant was charged with assault occasioning actual bodily harm. One of the issues before the court was whether or not P had broken the chain of causation by jumping from the moving car. 161 CASES AND MATERIALS ON CRIMINAL LAW Stephenson LJ: . . . [The jury] had to consider: was the appellant guilty of occasioning [the victim] actual bodily harm? Of course, for that to be established, it had to be established that he was responsible in law and in fact for her injuries caused by leaving in a hurry the moving car . . . This court thinks that that correctly states the law . . . . . . The test is: Was it [the action of the victim which resulted in actual bodily harm] the natural result of what the alleged assailant said and did, in the sense that it was something that could reasonably have been foreseen as the consequence of what he was saying or doing? As it was put in one of the old cases, it had got to be shown to be his act, and if of course the victim does something so ‘daft’, in the words of the appellant in this case, or so unexpected, not that this particular assailant did not actually foresee it but that no reasonable man could be expected to foresee it, then it is only in a very remote and unreal sense a consequence of his assault, it is really occasioned by a voluntary act on the part of the victim which could not reasonably be foreseen and which breaks the chain of causation between the assault and harm or injury. R v Williams and Another [1992] 1 WLR 380 (CA) The deceased, John Shephard, had been hitch-hiking to a free festival at Glastonbury. He was picked up in a car driven by Williams. Davis and the co-accused Bobat were passengers in that car. After travelling approximately five miles, the deceased jumped from the car, and died from head injuries caused by falling onto the road. The evidence was that the car had been travelling at approximately 30 mph at the time of this incident. The prosecution case was that the deceased had tried to escape from the defendants who were intent on robbing him. One of the issues for the Court of Appeal was the extent to which the deceased had, by his actions, broken the chain of causation in law between the defendants’ acts and his death. Stuart-Smith LJ: . . . [I]n some cases, and in our judgment this is one of them, it is necessary to give the jury a direction on causation, and explain the test by which the voluntary act of the deceased may be said to be caused by the accused’s act and not a novus actus interveniens, breaking the chain of causation between the threat of violence and the death. There must be some proportionality between the gravity of the threat and the action of the deceased in seeking to escape from it . . . But the nature of the threat is of importance in considering both the foreseeability of harm to the victim from the threat and the question whether the deceased’s conduct was proportionate to the threat, that is to say that it was within the ambit of reasonableness and not so daft as to make it his one voluntary act which amounted to a novus actus interveniens and consequently broke the chain of causation. It should of course be borne in mind that a victim may in the agony of the moment do the wrong thing. In this case there was an almost total lack of evidence as to the nature of the threat. The prosecution invited the jury to infer the gravity of the threat from the action of the deceased. The judge put it this way: . . . what he was frightened of was robbery, that this was going to be taken from him by force, and the measure of the force can be taken from his reaction to it. The prosecution 162 HOMICIDE suggest that if he is prepared to get out of a moving car, then it was a very serious threat involving him in the risk of, as he saw it, serious injury. In our judgment that was a wholly impermissible argument and was simply a case of the prosecution pulling itself up by its own bootstraps. Moreover in a case of robbery the threat of force is made to persuade the victim to hand over money: if the money is handed over actual violence may not eventuate. The jury should consider two questions: first, whether it was reasonably foreseeable that some harm, albeit not serious harm, was likely to result from the threat itself; and, second, whether the deceased’s reaction in jumping from the moving car was within the range of responses which might be expected from a victim placed in the situation which he was. The jury should bear in mind any particular characteristic of the victim and the fact that in the agony of the moment he may act without thought and deliberation . . . COMMENTS AND QUESTIONS 1 The ability of the victim to assess the degree of risk or danger inherent in his chosen course of action may be impaired by disability or the effect of drugs. How does this sit with the test for reasonable foreseeability? In R v Corbett [1996] Crim LR 594 (CA), the victim was a mentally handicapped man of 26 who suffered from time to time with mental illness and had problems with high alcohol consumption. On the day of his death he had been drinking all day. At about 9.30 pm the appellant had an argument with the victim and started to hit and head-butt him. The victim ran away and fell into the gutter where he was struck by a passing car and killed. The Court of Appeal upheld the conviction, thereby rejecting submission to the effect that the actions of the deceased could amount to a novus actus interveniens. The decision suggests strongly that the R v Blaue principle, to the effect that the defendant must take his victim as he finds him or her, is of overriding application. 2 R v Majoram [2000] Crim LR 372 confirms that the issue of causation is to be assessed objectively. There is no need to prove that the defendant had any foresight of the harmful consequences in order to establish causation. For these purposes the reasonable person does not share any of the defendant’s personal attributes. In the course of his judgment Roch LJ cited with approval the passage from R v Roberts (above) to the effect that the chain of causation would be broken if P did something so unexpected it might be described as ‘daft’. 3 The doctrine that the defendant should take his victim as he finds him or her, as expressed in Blaue, would suggest that even a ‘daft’ action by the victim should not break the chain of causation. To what extent can this apparent contradiction be resolved by arguing that: (i) Blaue is to be preferred because it is the later case; (ii) the ‘take your victim as you find him or her’ doctrine is part of the ratio of Blaue; (iii) Blaue is preferable as a matter of public policy (i.e. the defendant should not be absolved because of the unforeseen ‘peculiarities’ of the victim). 4 Whether or not P’s suicide would amount to a novus actus interveniens has been a matter of conjecture. On the one hand it could fall within the ‘Blaue’ principle, on the other the suicide could be seen as a ‘daft’ escape by P. In R v Dhaliwal [2006] EWCA CRIM 1139 (an appeal under s 58 of the Criminal Justice Act 2003), the court noted (per curiam) that, subject to evidence and argument on the issue of causation, in cases where D inflicted unlawful 163 CASES AND MATERIALS ON CRIMINAL LAW violence on an P, (P being an individual with a fragile and vulnerable personality), and where D’s violence was proved to be a material cause of death, D could be convicted of manslaughter even where P had taken his own life as a result of the violence. The violence does not have to involve physical contact for these purposes but could extend to cases of psychiatric harm inflicted by D, for example through bullying, harassment or torture. 4.3.6 NOVUS ACTUS INTERVENIENS – CAN THE CHAIN OF CAUSATION BE BROKEN BY THE ACTIONS OF A THIRD PARTY? R v Pagett (1983) 76 Cr App R 279 (CA) In the early hours of one morning on the first floor of a block of flats where he lived, the appellant, who was armed with a shotgun and cartridges, shot at police officers who were attempting to arrest him for various serious offences. The appellant had with him a 16 year old girl who was pregnant by him, and against her will used her body to shield him from any retaliation by the officers. The officers in fact returned the appellant’s fire and as a result the girl was killed. The appellant was charged, inter alia, with her murder. Robert Goff LJ: . . . [I]t was pressed upon us by Lord Gifford [counsel for the appellant] that there either was, or should be, a comparable rule of English law, whereby, as a matter of policy, no man should be convicted of homicide (or, we imagine, any crime of violence to another person) unless he himself, or another person acting in concert with him, fired the shot (or, we imagine, struck the blow) which was the immediate cause of the victim’s death (or injury). No English authority was cited to us in support of any such proposition, and we know of none. So far as we are aware, there is no such rule in English law; and, in the absence of any doctrine of constructive malice, we can see no basis in principle for any such rule in English law. Lord Gifford urged upon us that, in a case where the accused did not, for example, fire the shot which was the immediate cause of the victim’s death, he will inevitably have committed some lesser crime, and that it would be sufficient that he should be convicted of that lesser crime. So, on the facts of the present case, it would be enough that the appellant was convicted of the crime of attempted murder of the two police officers, DS Sartain and DC Richards. We see no force in this submission. In point of fact, it is not difficult to imagine circumstances in which it would manifestly be inadequate for the accused merely to be convicted of a lesser offence; for example, a man besieged by armed terrorists in a house might attempt to make his escape by forcing some other person to act as a shield, knowing full well that that person would in all probability be shot, and possibly killed, in consequence. For that man merely to be convicted of an assault would, if the person he used as a shield were to be shot and killed, surely be inadequate in all the circumstances; we can see no reason why he should not be convicted at least of manslaughter. But in any event there is, so far as we can discern, no basis of legal principle for Lord Gifford’s submission. We are therefore unable to accept it. In our judgment, the question whether an accused person can be held guilty of homicide, either murder or manslaughter, of a victim the immediate cause of whose death is the act of another person must be determined on the ordinary principles of causation, uninhibited by any such rule 164 HOMICIDE of policy as that for which Lord Gifford has contended. We therefore reject the second ground of appeal. We turn to the first ground of appeal, which is that the learned judge erred in directing the jury that it was for him to decide as a matter of law whether by his unlawful and deliberate acts the appellant caused or was a cause of Gail Kinchen’s death . . . We have no intention of embarking in this judgment on a dissertation of the nature of causation, or indeed of considering any matters other than those which are germane to the decision of the issues now before us. Problems of causation have troubled philosophers and lawyers throughout the ages; and it would be rash in the extreme for us to trespass beyond the boundaries of our immediate problem. Our comments should therefore be understood to be confined not merely to the criminal law, but to cases of homicide (and possibly also other crimes of violence to the person); and it must be emphasised that the problem of causation in the present case is specifically concerned with the intervention of another person (here one of the police officers) whose act was the immediate cause of the death of the victim, Gail Kinchen. In cases of homicide, it is rarely necessary to give the jury any direction on causation as such. Of course, a necessary ingredient of the crimes of murder and manslaughter is that the accused has by his act caused the victim’s death. But how the victim came by his death is usually not in dispute. What is in dispute is more likely to be some other matter: for example, the identity of the person who committed the act which indisputably caused the victim’s death; or whether the accused had the necessary intent; or whether the accused acted in self-defence, or was provoked. Even where it is necessary to direct the jury’s minds to the question of causation, it is usually enough to direct them simply that in law the accused’s act need not be the sole cause, or even the main cause, of the victim’s death, it being enough that his act contributed significantly to that result. It is right to observe in passing, however, that even this simple direction is a direction of law relating to causation, on the basis of which the jury are bound to act in concluding whether the prosecution has established, as a matter of fact, that the accused’s act did in this sense cause the victim’s death. Occasionally, however, a specific issue of causation may arise. One such case is where, although an act of the accused constitutes a causa sine qua non of (or necessary condition for) the death of the victim, nevertheless the intervention of a third person may be regarded as the sole cause of the victim’s death, thereby relieving the accused of criminal responsibility. Such intervention, if it has such an effect, has often been described by lawyers as a novus actus interveniens. We are aware that this time-honoured Latin term has been the subject of criticism. We are also aware that attempts have been made to translate it into English; though no simple translation has proved satisfactory, really because the Latin term has become a term of art which conveys to lawyers the crucial feature that there has not merely been an intervening act of another person, but that act was so independent of the act of the accused that it should be regarded in law as the cause of the victim’s death, to the exclusion of the act of the accused. At the risk of scholarly criticism, we shall for the purposes of this judgment continue to use the Latin term. Now the whole subject of causation in the law has been the subject of a well-known and most distinguished treatise by Professors Hart and Honore, Causation in the Law. Passages from this book were cited to the learned judge, and were plainly relied upon by him . . . the learned authors consider the circumstances in which the intervention of a third person, not acting in concert with the accused, may have the effect of relieving the accused of criminal responsibility. The criterion which they suggest should be applied in such circumstances is whether the intervention is voluntary, i.e. whether it is ‘free, deliberate and informed’. We resist the temptation of 165 CASES AND MATERIALS ON CRIMINAL LAW expressing the judicial opinion whether we find ourselves in complete agreement with that definition; though we certainly consider it to be broadly correct and supported by authority. Among the examples which the authors give of non-voluntary conduct, which is not effective to relieve the accused of responsibility, are two which are germane to the present case, viz a reasonable act performed for the purpose of self-preservation, and an act done in performance of a legal duty. There can, we consider, be no doubt that a reasonable act performed for the purpose of self-preservation, being of course itself an act caused by the accused’s own act, does not operate as a novus actus interveniens. If authority is needed for this almost self-evident proposition, it is to be found in such cases as Pitts (1842) C & M 284, and Curley (1909) 2 Cr App R 96. In both these cases, the act performed for the purpose of self-preservation consisted of an act by the victim in attempting to escape from the violence of the accused, which in fact resulted in the victim’s death. In each case it was held as a matter of law that, if the victim acted in a reasonable attempt to escape the violence of the accused, the death of the victim was caused by the act of the accused. No one form of self-preservation is self-defence; for present purposes, we can see no distinction in principle between an attempt to escape the consequences of the accused’s act, and a response which takes the form of self-defence. Furthermore, in our judgment, if a reasonable act of self-defence against the act of the accused causes the death of a third party, we can see no reason in principle why the act of self-defence, being an involuntary act caused by the act of the accused, should relieve the accused from final responsibility for the death of the third party. Of course, it does not necessarily follow that the accused will be guilty of the murder, or even of the manslaughter, of the third party; though in the majority of cases he is likely to be guilty at least of manslaughter. Whether he is guilty of murder or manslaughter will depend upon the question whether all the ingredients of the relevant offence have been proved; in particular, on a charge of murder, it will be necessary that the accused had the necessary intent . . . No English authority was cited to us, nor we think to the learned judge, in support of the proposition that an act done in the execution of a legal duty, again of course being an act itself caused by the act of the accused, does not operate as a novus actus interveniens . . . Even so, we agree with the learned judge that the proposition is sound law, because as a matter of principle such an act cannot be regarded as a voluntary act independent of the wrongful act of the accused. A parallel may be drawn with the so-called ‘rescue’ cases in the law of negligence, where a wrongdoer may be held liable in negligence to a third party who suffers injury in going to the rescue of a person who has been put in danger by the defendant’s negligent act . . . in cases where there is an issue whether the act of the victim or of a third party constituted a novus actus interveniens, breaking the causal connection between the act of the accused and the death of the victim, it would be appropriate for the judge to direct the jury, of course in the most simple terms, in accordance with the legal principles which they have to apply. It would then fall to the jury to decide the relevant factual issues which, identified with reference to those legal principles, will lead to the conclusion whether or not the prosecution have established the guilt of the accused of the crime of which he is charged . . . COMMENTS AND QUESTIONS 1 166 To what extent do you think the police might have been grossly negligent in returning fire in the circumstances described in Pagett? If gross negligence on the part of a police HOMICIDE officer had been established, would this have constituted a novus actus interveniens? See the consideration of gross negligence on the part of doctors in R v Cheshire, considered below. 2 See further R v Watson [1989] 1 WLR 684, considered below at 4.7.3. Suppose D burgles P’s house, and there is evidence that P dies of a heart attack several hours later, the attack being brought on by P’s exertions in making his property safe. Do P’s actions amount to a novus actus interveniens. Alternatively, what if the medical evidence indicates that the heart attack was brought on by the stress of dealing with the police inquiries following the burglary? Can the interventions of the police officers be seen as a novus actus interveniens? 3 In R v Shohid and another [2003] All ER (D) 216, the Court of Appeal upheld a conviction for manslaughter in a case where D had forced P onto a railway line and P was killed by a train, having been prevented from getting off the line by others. Emphasising that it was not necessary for the prosecution to show that D’s actions were the sole or major cause of death, the court held that there had been no novus actus interveniens. Neither was there any requirement that D should have foreseen that others might prevent the victim from escaping from the path of the approaching train. 4.3.7 NOVUS ACTUS INTERVENIENS – CAN THE CHAIN OF CAUSATION BE BROKEN BY MEDICAL TREATMENT? R v Jordan (1956) 40 Cr App R 152 (CA) Jordan stabbed a man named Beaumont. Beaumont was hospitalised as a result and received treatment for his injuries. There was evidence that, at a time when the wound was healing, doctors treating the victim administered an antibiotic, terramycin, a drug to which Beaumont was intolerant. Expert evidence suggested that this treatment had been ‘palpably wrong’. The issue for the Court of Appeal was whether or not the medical treatment could properly be regarded as a novus actus interveniens. Hallett J: . . . We are disposed to accept it as the law that death resulting from any normal treatment employed to deal with a felonious injury may be regarded as caused by the felonious injury, but we do not think it necessary to examine the cases in detail or to formulate for the assistance of those who have to deal with such matters in the future the correct test which ought to be laid down with regard to what is necessary to be proved in order to establish causal connection between the death and the felonious injury. It is sufficient to point out here that this was not normal treatment. Not only one feature, but two separate and independent features, of treatment were, in the opinion of the doctors, palpably wrong and these produced the symptoms discovered at the post mortem examination which were the direct and immediate cause of death, namely the pneumonia resulting from the condition of oedema which was found. The question then is whether it can be said that, if that evidence had been before the jury, it ought not to have, and in all probability would not have, affected their decision. We recognise that 167 CASES AND MATERIALS ON CRIMINAL LAW the learned judge, if this matter had been before him, would have had to direct the jury correctly on how far such supervening matters could be regarded as interrupting the chain of causation; but we felt that in the end it would have been a question of fact for the jury depending on what evidence they accepted as correct and the view they took on that evidence. We feel no uncertainty at all that, whatever direction had been given to the jury and however correct it had been, the jury would have felt precluded from saying that they were satisfied that death was caused by the stab wound. For these reasons we come to the conclusion that the appeal must be allowed and the conviction set aside. R v Smith [1959] 2 QB 35 (CA) For the facts see 4.3.2 above. The following extract concerns the extent to which poor medical treatment might have amounted to a novus actus interveniens. Lord Parker CJ: . . . The second ground concerns a question of causation. The deceased man in fact received two bayonet wounds, one in the arm and one in the back. The one in the back, unknown to anybody, had pierced the lung and caused haemorrhage. There followed a series of unfortunate occurrences. A fellow member of his company tried to carry him to the medical reception station. On the way he tripped over a wire and dropped the deceased man. He picked him up again, went a little farther, and fell apparently a second time, causing the deceased man to be dropped onto the ground. Thereafter he did not try a third time but went for help, and ultimately the deceased man was brought into the reception station. There, the medical officer, Captain Millward, and his orderly were trying to cope with a number of other cases, two serious stabbings and some minor injuries, and it is clear that they did not appreciate the seriousness of the deceased man’s condition or exactly what had happened. A transfusion of saline solution was attempted and failed. When his breathing seemed impaired he was given oxygen and artificial respiration was applied, and in fact he died after he had been in the station about an hour, which was about two hours after the original stabbing. It is now known that having regard to the injuries which the man had in fact suffered, his lung being pierced, the treatment that he was given was thoroughly bad and might well have affected his chances of recovery.There was evidence that there is a tendency for a wound of this sort to heal and for the haemorrhage to stop. No doubt his being dropped on the ground and having artificial respiration applied would halt or at any rate impede the chances of healing. Further, there were no facilities whatsoever for blood transfusion, which would have been the best possible treatment. There was evidence that if he had received immediate and different treatment, he might not have died. Indeed, had facilities for blood transfusion been available and been administered, Dr Camps, who gave evidence for the defence, said that his chances of recovery were as high as 75% . . . Mr Bowen placed great reliance on a case decided in this court of R v Jordan (1956) 40 Cr App R 152 . . . The court is satisfied that Jordan’s case was a very particular case depending upon its exact facts. It incidentally arose in this court on the grant of an application to call further evidence, and leave having been obtained, two well-known medical experts gave evidence that in their opinion death had not been caused by the stabbing but by the introduction of terramycin after the deceased had shown that he was intolerant to it, and by the 168 HOMICIDE intravenous introduction of abnormal quantities of liquid. It also appears that at the time when that was done the stab wound which had penetrated the intestine in two places had mainly healed. In those circumstances the court felt bound to quash the conviction because they could not say that a reasonable jury properly directed would not have been able on that to say that there had been a break in the chain of causation; the court could only uphold the conviction in that case if they were satisfied that no reasonable jury could have come to that conclusion. R v Malcherek; R v Steel [1981] 1 WLR 690 (CA) In these conjoined appeals both appellants had attacked women causing their victims serious injuries. In both cases the victims were placed on life support machines. In both cases doctors treating the victims decided to switch off the machines on the basis that there was no prospect of recovery. The appellants contended that the actions of the doctors in each case should have been regarded as a novus actus interveniens breaking the chain of causation in law between the attacks and the deaths. Lord Lane CJ: . . . This is not the occasion for any decision as to what constitutes death. Modern techniques have undoubtedly resulted in the blurring of many of the conventional and traditional concepts of death. A person’s heart can now be removed altogether without death supervening; machines can keep the blood circulating through the vessels of the body until a new heart can be implanted in the patient, and even though a person is no longer able to breathe spontaneously a ventilating machine can, so to speak, do his breathing for him, as is demonstrated in the two cases before us.There is, it seems, a body of opinion in the medical profession that there is only one true test of death and that is the irreversible death of the brain stem, which controls the basic functions of the body such as breathing.When that occurs it is said the body has died, even though by mechanical means the lungs are being caused to operate and some circulation of blood is taking place. We have had placed before us, and have been asked to admit, evidence that in each of these two cases the medical men concerned did not comply with all the suggested criteria for establishing such brain death. Indeed, further evidence has been suggested and placed before us that those criteria or tests are not in themselves stringent enough. However, in each of these two cases there is no doubt that whatever test is applied the victim died; that is to say, applying the traditional test, all body functions, breathing and heartbeat and brain function came to an end, at the latest, soon after the ventilator was disconnected. The question posed for answer to this court is simply whether the judge in each case was right in withdrawing from the jury the question of causation. Was he right to rule that there was no evidence on which the jury could come to the conclusion that the assailant did not cause the death of the victim? The way in which the submissions are put by counsel for Malcherek on the one hand and by counsel for Steel on the other is as follows: the doctors, by switching off the ventilator and the life support machine, were the cause of death or, to put it more accurately, there was evidence which the jury should have been allowed to consider that the doctors, and not the assailant, in each case may have been the cause of death. In each case it is clear that the initial assault was the cause of the grave head injuries in the one case and of the massive abdominal haemorrhage in the other. In each case the initial assault was the reason for the medical treatment being necessary. In each case the medical treatment given 169 CASES AND MATERIALS ON CRIMINAL LAW was normal and conventional. At some stage the doctors must decide if and when treatment has become otiose. This decision was reached, in each of the two cases here, in circumstances which have already been set out in some detail. It is no part of the task of this court to inquire whether the criteria, the Royal Medical College confirmatory tests, are a satisfactory code of practice. It is no part of the task of this court to decide whether the doctors were, in either of these two cases, justified in omitting one or more of the so called ‘confirmatory tests’. The doctors are not on trial; Steel and Malcherek respectively were. There are two comparatively recent cases which are relevant to the consideration of this problem. The first is R v Jordan (1956) 40 Cr App R 152 . . . In the view of this court, if a choice has to be made between the decision in R v Jordan and that in R v Smith, which we do not believe it does (R v Jordan being a very exceptional case), then the decision in R v Smith is to be preferred . . . There is no evidence in the present case here that at the time of conventional death, after the life support machinery was disconnected, the original wound or injury was other than a continuing, operating and indeed substantial cause of the death of the victim, although it need hardly be added that it need not be substantial to render the assailant guilty.There may be occasions, although they will be rare, when the original injury has ceased to operate as a cause at all, but in the ordinary case if the treatment is given bona fide by competent and careful medical practitioners, then evidence will not be admissible to show that the treatment would not have been administered in the same way by other medical practitioners. In other words, the fact that the victim has died, despite or because of medical treatment for the initial injury given by careful and skilled medical practitioners, will not exonerate the original assailant from responsibility for the death. It follows that so far as the ground of appeal in each of these cases relates to the direction given on causation, that ground fails. It also follows that the evidence which it is sought to adduce now, although we are prepared to assume that it is both credible and was not available properly at the trial (and a reasonable explanation for not calling it at the trial has been given), if received could, under no circumstances, afford any ground for allowing the appeal. The reason is this. Nothing which any of the two or three medical men whose statements are before us could say would alter the fact that in each case the assailant’s actions continued to be an operating cause of the death. Nothing the doctors could say would provide any ground for a jury coming to the conclusion that the assailant in either case might not have caused the death. The furthest to which their proposed evidence goes, as already stated, is to suggest, first, that the criteria or the confirmatory tests are not sufficiently stringent and, second, that in the present case they were in certain respects inadequately fulfilled or carried out. It is no part of this court’s function in the present circumstances to pronounce on this matter, nor was it a function of either of the juries at these trials. Where a medical practitioner adopting methods which are generally accepted comes bona fide and conscientiously to the conclusion that the patient is for practical purposes dead, and that such vital functions as exist (for example, circulation) are being maintained solely by mechanical means, and therefore discontinues treatment, that does not prevent the person who inflicted the initial injury from being responsible for the victim’s death. Putting it in another way, the discontinuance of treatment in those circumstances does not break the chain of causation between the initial injury and the death. Although it is unnecessary to go further than that for the purpose of deciding the present point, we wish to add this thought. Whatever the strict logic of the matter may be, it is perhaps somewhat bizarre to suggest, as counsel have impliedly done, that where a doctor tries his conscientious best to save the life of a patient brought to hospital in extremis, skilfully using sophisticated 170 HOMICIDE methods, drugs and machinery to do so, but fails in his attempt and therefore discontinues treatment, he can be said to have caused the death of the patient. R v Cheshire [1991] 1 WLR 844 (CA) D shot P following an argument in a fish and chip shop in Greenwich. P was hospitalised as a result and, having undergone surgery, was placed in an intensive care unit. P died whilst in hospital, the post mortem suggesting that his windpipe had become obstructed due to narrowing near the site of a tracheotomy scar. The deceased’s windpipe had become so narrowed that even a small amount of mucus could block it and cause asphyxiation. D contended that at the time of death the original wound was no longer life-threatening and that death had resulted from negligent medical care. The Court of Appeal dismissed his appeal. Beldam J: Whatever may be the differences of policy between the approach of the civil and the criminal law to the question of causation, there are we think reasons for a critical approach when importing the language of the one to the other. Since the apportionment of responsibility for damage has become commonplace in the civil law, judges have sought to distinguish the blameworthiness of conduct from its causative effect. Epithets suggestive of degrees of blameworthiness may be of little help in deciding how potent the conduct was in causing the result. A momentary lapse of concentration may lead to more serious consequences than a more glaring neglect of duty. In the criminal law the jury considering the factual question, did the accused’s act cause the deceased’s death, will we think derive little assistance from figures of speech more appropriate for conveying degrees of fault or blame in questions of apportionment. Unless authority suggests otherwise, we think such figures of speech are to be avoided in giving guidance to a jury on the question of causation. Whilst medical treatment unsuccessfully given to prevent the death of a victim with the care and skill of a competent medical practitioner will not amount to an intervening cause, it does not follow that treatment which falls below that standard of care and skill will amount to such a cause. As Professors Hart and Honoré comment, treatment which falls short of the standard expected of the competent medical practitioner is unfortunately only too frequent in human experience for it to be considered abnormal in the sense of extraordinary. Acts or omissions of a doctor treating the victim for injuries he has received at the hands of an accused may conceivably be so extraordinary as to be capable of being regarded as acts independent of the conduct of the accused but it is most unlikely that they will be . . . . . . when the victim of a criminal attack is treated for wounds or injuries by doctors or other medical staff attempting to repair the harm done, it will only be in the most extraordinary and unusual case that such treatment can be said to be so independent of the acts of the accused that it could be regarded in law as the cause of the victim’s death to the exclusion of the accused’s acts. Where the law requires proof of the relationship between an act and its consequences as an element of responsibility, a simple and sufficient explanation of the basis of such relationship has proved notoriously elusive. In a case in which the jury have to consider whether negligence in the treatment of injuries inflicted by the accused was the cause of death we think it is sufficient for the judge to tell the jury 171 CASES AND MATERIALS ON CRIMINAL LAW that they must be satisfied that the Crown have proved that the acts of the accused caused the death of the deceased adding that the accused’s acts need not be the sole cause or even the main cause of death it being sufficient that his acts contributed significantly to that result. Even though negligence in the treatment of the victim was the immediate cause of his death, the jury should not regard it as excluding the responsibility of the accused unless the negligent treatment was so independent of his acts, and in itself so potent in causing death, that they regard the contribution made by his acts as insignificant. It is not the function of the jury to evaluate competing causes or to choose which is dominant provided they are satisfied that the accused’s acts can fairly be said to have made a significant contribution to the victim’s death.We think the word ‘significant’ conveys the necessary substance of a contribution made to the death which is more than negligible . . . Accordingly, we dismiss the appeal. R v Mellor [1996] 2 Cr App R 245 P was attacked and later died of his injuries in hospital. The immediate cause of death was broncho-pneumonia brought on directly by the injuries inflicted by the appellant. There was evidence that if P had been administered sufficient oxygen in time, the broncho-pneumonia would not have been fatal. The appellant, therefore, contended that the medical treatment, being negligent, could be regarded as an independent cause of death. Schiemann LJ: . . . In homicide cases where the victim of the alleged crime does not die immediately, supervening events will occur which are likely to have some causative effect leading to the victim’s death; for example, a delay in the arrival of the ambulance, a delay in resuscitation, the victim’s individual response to medical or surgical treatment, and the quality of medical, surgical and nursing care. Sometimes such an event may be the result of negligence or mistake or bad luck. It is a question of fact and degree in each case for the jury to decide, having regard to the gravity of the supervening event, however caused, whether the injuries inflicted by the defendant were a significant cause of death. The onus on the Crown is to make the jury sure that the injuries inflicted by the defendant were a significant cause of death. However, the Crown has no onus of establishing that any supervening event was not a significant cause of death or that there was no medical negligence in the deceased’s treatment. If the issue of medical negligence is raised, the jury must have regard to the evidence adduced on the issue. If they conclude that there was or may have been medical negligence, they must have regard to that conclusion when answering the all-important question: ‘Has the Crown proved that the injuries inflicted by the defendant were a significant cause of death?’ In appropriate cases the jury can be told that there may be a number of significant causes leading to a victim’s death. So as long as the Crown proves that the injuries inflicted by the defendant were at least a significant, if not the only, cause of death that will be sufficient to prove the nexus between injury and death . . . His Lordship referred to R v Cheshire (above) and R v Pagett (above) and continued: 172 HOMICIDE In our judgment, Beldam LJ (in Cheshire) was not intending to put any gloss on Goff LJ’s suggested direction in Pagett, which was not a medical negligence case, but relating it to a medical negligence case. He made it clear at the end of the passage which we have cited that the question for the jury was whether they were satisfied that the accused’s acts significantly contributed to the victim’s death.That was the question for the jury in the present case. What the Crown had to prove in the present case was that the injuries inflicted by the appellant significantly contributed to Mr Sims’s death. There was no onus whatever on the Crown to negative medical negligence. Equally, there was no onus on the appellant to establish medical negligence. However, if negligence was established it was a factor to be taken into account by the jury in deciding whether the Crown had established that, notwithstanding this negligence, the injuries inflicted by the appellant had significantly contributed to Mr Sims’s death. In the event of a jury being sure that medical negligence has been negatived by the Crown as a significant contributory cause of death, the medical negligence factor would be out of the equation. In our judgment, it is undesirable in most cases for juries to be asked to embark upon the question of whether medical negligence as a significant contributory cause of death has been negatived because it diverts the jury from the relevant question, namely has the accused’s act contributed significantly to the victim’s death? . . . An appropriate, but we do not suggest the only appropriate, form of words on the particular facts of this case would have been: You must acquit the defendant of murder unless the Crown has made you sure that the injuries that he inflicted contributed significantly to Mr Sims’s death. Provided you are sure of that, it matters not whether incompetence or mistake in treatment at the hospital may have also contributed significantly to the death. In our judgment, if the medical/causation issue had been put in this way there could only have been one answer. The evidence was overwhelming that having regard to the extent and nature of the injuries inflicted upon the 71 year old Mr Sims those injuries significantly contributed to his death less than two days later . . . 4.3.8 CAUSATION – CODIFICATION AND LAW REFORM PROPOSALS Clause 17 of the draft Code Bill seeks to restate the common law position regarding causation. It provides: 17(1) Subject to subsections (2) and (3), a person causes a result which is an element of an offence when: (a) he does an act which makes a more than negligible contribution to its occurrence; or (b) he omits to do an act which might prevent its occurrence and which he is under a duty to do according to the law relating to the offence. Regarding novus actus interveniens, clause 17(2) states: A person does not cause a result where, after he does such an act or makes such an omission, an act or event occurs: (a) which is the immediate and sufficient cause of the result; 173 CASES AND MATERIALS ON CRIMINAL LAW (b) which he did not foresee; and (c) which could not in the circumstances reasonably have been foreseen. The commentary on the draft code Bill observes: [Clause 17(2)] appears to restate satisfactorily for criminal law the principles which determine whether intervening acts or events are sufficient to break the chain of causation . . . According to this provision a person will still be liable if his intended victim suffers injury in trying to escape from the threatened attack unless the victim has done something so improbable that it can properly be said not to have been reasonably foreseeable. Equally, liability for homicide will be unaffected if the victim refuses medical treatment for a wound caused by the defendant. Even if the refusal could be said to be unforeseeable, it is not sufficient in itself to cause the victim’s death – in such a case, to use the language of the cases, the original wound is still the ‘operating and substantial cause’ of death [Vol II, para 7.17]. Note that the Law Commission’s Report (Law Com No 304): Murder, Manslaughter And Infanticide does not deal with issues relating to causation in homicide. 4.4 THE GAP IN TIME BETWEEN THE DEFENDANT’S ACT AND THE VICTIM’S DEATH It used to be the case that, for a person to be convicted of murder or manslaughter, the death of the victim had to occur within a year and a day of the act or omission which caused the death. Section 1 of the Law Reform (Year and a Day Rule) Act 1996, however, abolishes this rule. Section 2 of the Act provides instead: Section 2 of the Law Reform (Year and a Day) Act 1996 (1) Proceedings to which this section applies may only be instituted by or with the consent of the Attorney General. (2) This section applies to proceedings against a person for a fatal offence if: (a) the injury alleged to have caused the death was sustained more than three years before the death occurred; or (b) the person has previously been convicted of an offence committed in circumstances alleged to be connected with the death. (3) In subsection (2) ‘fatal offence’ means: (a) murder, manslaughter, infanticide or any other offence of which one of the elements is causing a person’s death; or (b) the offence of aiding, abetting, counselling or procuring a person’s suicide. An example of the operation of s 2(2)(b) would be where a person is convicted of causing grievous bodily harm and, after the conviction, the victim dies; in such a case, the consent of 174 HOMICIDE the Attorney General must be obtained before the person is prosecuted for murder (even if three years have not elapsed since the date of the assault). Murder and manslaughter are both result crimes, in the sense that the defendant must be proved to have caused the death of the victim in fact and in law. 4.5 THE MENS REA FOR MURDER For a defendant to be convicted of murder he must have caused the death of a human being and must be shown to have acted with the requisite mens rea – an intention to kill a human being, or an intention to cause a human being grievous bodily harm. The nature of intention, particularly in the context of murder, was considered in Chapter 3: see in particular R v Woollin [1999] 1 AC 82. The term ‘malice aforethought’ is often used to denote the mens rea required for murder – see the classic definition of murder set out in Coke’s Institutes (3 Co Inst 47): ‘Murder is when a [person] . . . unlawfully killeth . . . any reasonable creature in rerum natura under the Queen’s peace, with malice aforethought . . . so as the party wounded or hurt, etc dies of the wound or hurt’ – but it is submitted that, in the modern context, this phrase is likely to mislead. The defendant charged with murder does not need to have displayed any ‘malice’ towards his victim – it may, for example, be a mercy killing. Further, there is no need for the prosecution to prove that the killing was in any way premeditated or planned. All in all, notwithstanding that Parliament used the phrase in the Homicide Act 1957 (see below) the phrase is best avoided. Homicide Act 1957 [Section 1] Where a person kills another in the course or furtherance of some other offence, the killing shall not amount to murder unless done with the same malice aforethought (express or implied) as is required for the killing to amount to murder when not done in the course or furtherance of another offence. The effect of s 1 of the 1957 Act is to abolish the doctrine of constructive malice, whereby a defendant who killed in the course of committing a felony was deemed to have the mens rea for murder. Hence, prior to the Act coming into effect, a defendant who killed in the course of committing a robbery would have faced a murder charge – the mens rea for murder being ‘constructed’ from the mens rea for robbery. Following the enactment of s 1 the mens rea for murder must be established in its own right. The effect of the provision has been undermined to a degree, however, by the decision in R v Vickers [1957] 2 QB, where the Court of Appeal confirmed that, notwithstanding s 1, an intention to do grievous bodily harm would suffice for the mens rea for murder. The extracts that follow provide a critique of this restatement of the law. It is suffice to note here that it amounts to a partial re-introduction of constructive malice. A defendant who kills in the course of intentionally committing grievous bodily harm is deemed to have the mens rea for murder. 175 CASES AND MATERIALS ON CRIMINAL LAW 4.5.1 CRITICISMS OF THE CURRENT MENS REA FOR MURDER Attorney General’s Ref (No 3 of 1994) [1997] 3 All ER 936 Lord Mustill: My Lords, murder is widely thought to be the gravest of crimes. One could expect a developed system to embody a law of murder clear enough to yield an unequivocal result on a given set of facts, a result which conforms with apparent justice and has a sound intellectual base. This is not so in England, where the law of homicide is permeated by anomaly, fiction, misnomer and obsolete reasoning. One conspicuous anomaly is the rule which identifies the ‘malice aforethought’ (a doubly misleading expression) required for the crime of murder not only with a conscious intention to kill but also with an intention to cause grievous bodily harm. It is, therefore, possible to commit a murder not only without wishing the death of the victim but without the least thought that this might be the result of the assault. Many would doubt the justice of this rule, which is not the popular conception of murder and (as I shall suggest) no longer rests on any intellectual foundation. The law of Scotland does very well without it, and England could perhaps do the same. It would, however, be fruitless to debate this here, since the rule has been established beyond doubt by R v Cunningham [1982] AC 566. This rule, which I will call the ‘grievous harm’ rule, is the starting point of the present appeal . . . . . . My Lords, since the original concepts are no longer available to explain why an intent to cause grievous bodily harm will found a conviction for murder the reason must be sought elsewhere: for reason, in regard to such a grave crime, there must surely be. The obvious recourse is to ascribe this doctrine to the last vestiges of the murder/felony rule, and to see in it a strong example of that rule, for unlike the more extravagant early manifestations it offers at least some resemblance in nature and degree between the intended act and its unintended consequences. It would follow, therefore, that when the murder/felony rule was expressly abolished by section 1 of the Homicide Act 1957 the only surviving justification for the ‘grievous harm’ rule fell away, with nothing left.This proposition was indeed advanced soon after the 1957 Act in R v Vickers [1957] 2 QB 664, where it was dismissed out-of-hand. The same concept was developed in Hyam v DPP [1975] AC 55, where after close analysis it was adopted by Lord Diplock, and in a concurring speech by Lord Kilbrandon. The majority in the House did not agree. The question was raised again in R v Cunningham [1982] AC 566, and this time a decisive answer was given.The ‘grievous harm’ rule had survived the abolition of the murder/felony principle. The speeches show that it did so because a solid and long-lasting line of authority had decreed that this was the law, and the House saw no need to change a rule which answered practical needs. My Lords, in a system based on binding precedent there could be no ground for doubting a long course of existing law, and certainly none which could now permit this House even to contemplate such a fundamental change as to abolish the grievous harm rule: and counsel rightly hinted at no such idea. But when asked to strike out into new territory it is, I think, right to recognise that the grievous harm rule is an outcropping of old law from which the surrounding strata of rationalisations have weathered away. It survives but exemplifies no principle which can be applied to a new situation. R v Powell and Daniels; R v English [1999] AC 1 For the facts, see Chapter 7.9.1. 176 HOMICIDE Lord Steyn: In English law a defendant may be convicted of murder who is in no ordinary sense a murderer. It is sufficient if it is established that the defendant had an intent to cause really serious bodily injury. This rule turns murder into a constructive crime. The fault element does not correspond to the conduct leading to the charge, i.e. the causing of death. A person is liable to conviction for a more serious crime than he foresaw or contemplated . . . This is a point of considerable importance. The Home Office records show that in the last three years for which statistics are available mandatory life sentences for murder were imposed in 192 cases in 1994; in 214 cases in 1995; and in 257 cases in 1996. Lord Windlesham, writing with great Home Office experience, has said that a minority of defendants convicted of murder have been convicted on the basis that they had an intent to kill: Responses to Crime, Vol 3 (1996), at 342, n 29.That assessment does not surprise me. What is the justification for this position? There is an argument that, given the unpredictability whether a serious injury will result in death, an offender who intended to cause serious bodily injury cannot complain of a conviction of murder in the event of a death. But this argument is outweighed by the practical consideration that immediately below murder there is the crime of manslaughter for which the court may impose a discretionary life sentence or a very long period of imprisonment. Accepting the need for a mandatory life sentence for murder, the problem is one of classification.The present definition of the mental element of murder results in defendants being classified as murderers who are not in truth murderers. It happens both in cases where only one offender is involved and in cases resulting from joint criminal enterprises. It results in the imposition of mandatory life sentences when neither justice nor the needs of society require the classification of the case as murder and the imposition of a mandatory life sentence . . . In my view the problem ought to be addressed. There is available a precise and sensible solution, namely, that a killing should be classified as murder if there is an intention to kill or an intention to cause really serious bodily harm coupled with awareness of the risk of death: 14th Report of the Law Revision Committee (1980), para 31, adopted in the Criminal Code for England and Wales (Law Com 177, 1986), clause 54(1). This solution was supported by the House of Lords Select Committee on Murder and Life Imprisonment, HL Paper 78–1, 1989, para 68. 4.5.2 MURDER – REFORM PROPOSALS The Law Commission’s Report (Law Com No 304) Murder: Manslaughter And Infanticide reflects the criticisms of the fault element in murder expressed in the foregoing extracts, highlighting the over- and under-inclusive nature of the current definition. 2.4 To bring greater order, fairness and clarity to the law of homicide, the scope of and distinctions between individual homicide offences must be made clearer and more intelligible, as well as being morally more defensible. Achieving this goal has not proved possible within a two-tier structure of general homicide offences. As we have seen, the constraining effect of the twotier structure gives rise to a definition of murder that leaves it in one respect too broad and in another respect too narrow. 2.5 The definition is too broad in so far as it encompasses killings committed through an intention to do harm the jury judges to be serious, even if the defendant (D) had no intention to endanger life and did not imagine that his or her acts might lead to the victim’s (V) death. 177 CASES AND MATERIALS ON CRIMINAL LAW 2.6 The definition is too narrow in that it excludes cases where D, without intending to kill or to cause serious injury, nonetheless realised that his or her conduct posed a serious risk of causing death and went ahead regardless. 2.7 The over- and under-inclusiveness of murder’s current definition inevitably has the undesirable consequence of making it unduly difficult to devise a fair sentencing structure for both murder and manslaughter. We believe that the introduction of a further tier into the general law of homicide will do a great deal to resolve this problem. Rationale for first degree murder How our recommendation would be an improvement on the existing law 2.63 The fault element we are recommending for first degree murder improves on murder’s existing fault element in several ways. 2.64 First, as further recommendations which we set out below [para 2.70] make clear, our recommendation for what should constitute first degree murder forms part of the creation of a proper ‘ladder’ of homicide offences, in order of seriousness, which the present law fails to provide. The recommendation would do this by eliminating the legal anomalies identified in Part 1 which result in the definition of murder being in some respects too narrow and in some respects too broad. 2.65 Secondly, implementation of the recommendation for what should constitute first degree murder would bring the law somewhat closer to what Parliament (mistakenly, as it turned out) thought the law was when it decided against providing a comprehensive definition of the fault element for murder in the Homicide Act 1957. 2.66 Thirdly, under our recommendations, if the jury found that one or other of the fault elements for first degree murder ((1)) or (2) in paragraph 2.50) was present and convicted of murder, the judge would no longer have to go on to decide for sentencing purposes which one of those fault elements the jury had found proven. This seemingly technical but important point needs addressing in more detail. 2.67 Under the present law, Parliament has acknowledged that there is potentially a large gap in point of culpability within murder, namely between an intention to kill and an intention to do serious harm (where there was no awareness of a risk of death). In consequence, Parliament now requires a judge to decide which of these intentions D acted on and to take that into account when determining the length of the initial period in custody of the mandatory life sentence. In one way, that is a commendable attempt to see that justice is done. It is, however, open to the objection that it requires the judge to trespass on what should be a question for the jury: the question of D’s intent (whether there was an intention to kill or only an intention to do serious harm). 2.68 Under our recommendations, there would no longer be such a large gap in the degree of culpability involved, as between the alternative fault elements in first degree murder ((1) and (2) in paragraph 2.50 above). This is because a conviction for murder would require a finding that there was at least an intention to do serious injury in the awareness that there was a serious risk of causing death. The two alternative fault elements for first degree murder should be regarded as morally equivalent. Consequently, there would be no need for the judge, when sentencing, to determine which fault element it was that D acted on in killing. 178 HOMICIDE 2.69 We recommend that first degree murder should encompass: (1) intentional killings, and (2) killings with the intent to cause serious injury where the killer was aware that his or her conduct involved a serious risk of causing death. 2.70 We recommend that second degree murder should encompass: (1) killings intended to cause serious injury; or (2) killings intended to cause injury or fear or risk of injury where the killer was aware that his or her conduct involved a serious risk of causing death; or (3) killings intended to kill or to cause serious injury where the killer was aware that his or her conduct involved a serious risk of causing death but successfully pleads provocation, diminished responsibility or that he or she killed pursuant to a suicide pact. 2.71 We also recommend that second degree murder should attract a maximum sentence of life imprisonment, with guidelines issued on appropriate periods in custody for different kinds of killing falling within second degree murder. . . . 2.72 Second degree murder would be a new offence, constituting a second or middle tier in the structure of general homicide offences. As an offence, second degree murder would perform three functions. 2.73 First, it would capture some cases that, to date, have been treated as plain murder, namely cases in which someone killed when intending to do an injury that the jury regards as serious but which D had no idea might cause death. This could be referred to as the new offence’s ‘mitigating’ role. 2.74 Secondly, the new offence would capture some cases that, to date, have been treated as only manslaughter, namely cases in which someone has killed intending to cause harm or fear or risk of harm and was aware of a serious risk of causing death. This could be referred to as the new offence’s ‘aggravating’ role. 2.75 Second degree murder would perform a third function. It would capture those who successfully raise a partial defence and who are currently convicted of manslaughter. This could be referred to as the new offence’s ‘labelling’ role. Why killing through an intention to do serious injury (but without awareness that there was a risk of causing death) should be treated as second degree murder. 2.94 We are recommending that second degree murder should attract a discretionary maximum life sentence. This means that, where appropriate, judges can take account of the kind and degree of injury actually intended in determining the sentence that they pass. That is not possible, at present, because the life sentence is mandatory when the jury has brought in a verdict of murder on the basis that there was an intention to do harm they (the jury) regard as serious. The discretion the judge would have, in sentencing in cases of second degree murder, means that it is not necessary to complicate the law further by seeking to fix a definition of ‘serious’ injury. 2.95 In the CP we provisionally proposed that within second degree murder, alongside killing through the intention to do serious injury, there should be killing by ‘reckless indifference’. 2.96 Under the present law, killing through reckless conduct, however culpable, can be treated as nothing more serious than manslaughter. In Part 1 we said that we believe that this constitutes 179 CASES AND MATERIALS ON CRIMINAL LAW a significant anomaly or weakness within the law. Some reckless killers ought to be convicted of second degree murder and not simply of manslaughter. 2.97 Under our recommendations, if someone foresaw death as virtually certain to occur if he or she acted as intended, and death did thereby occur, he or she could be convicted of first degree murder. Under the current law, if someone sees the causing of death as a serious risk from their conduct (even if it is not considered to be virtually certain to result), they can only be convicted of manslaughter. However, in certain circumstances it ought to be possible to convict them of the middle tier offence, second degree murder and not merely of manslaughter. 2.98 The example of the bomber who gives an inadequate warning is a case that ought to fall within the ambit of the middle tier offence. Some other examples (based on real cases) which at present commonly fall within manslaughter but ought to be candidates for treatment as second degree murder are: (1) D sets fire to V’s house at night, knowing that V is asleep inside. His intention is to give the occupants a severe fright. V is killed trying to escape. (2) D burgles the house of an elderly man, tying him up securely and leaving him, although she appreciates that the house is isolated and that the man has few visitors. V, unable to escape his bonds or summon help, dies. (3) D injects V with an illegal drug that D realises may contain impurities dangerous to life. V goes into a coma, and consequently dies. (4) D intentionally accelerates his car towards a police officer standing in the road at a roadblock. His intention is to frighten the officer by swerving the car out of the way only at the last possible second D’s attempt to swerve out of the way is unsuccessful and the officer is killed. ADVANTAGES OF THE NEW FORMULA 2.108 We believe that the recommended formula will make the place of second degree murder within the overall structure, or ‘ladder’, of offences much clearer than ‘reckless indifference’ would do. We also believe that the recommended formula will keep faith with the viewpoint of those who endorsed the inclusion of reckless indifference within second degree murder. We anticipate that the recommended formula will produce results at variance with the reckless indifference formula only in very rare or unusual kinds of case. In such cases, the offender can expect to receive a long prison sentence for manslaughter. 2.109 As important as what the recommended formula includes is what it excludes. It will not be sufficient for conviction of second degree murder simply that the killer was aware that his or her conduct involved a serious risk of causing death (recklessness as to causing death). If the killer was aware that his or her conduct involved a risk of death, he or she stands to be convicted only of manslaughter. To be convicted of second degree murder, in addition to showing that the offender had this awareness, it must also be shown that the killer intended to cause injury or fear or risk of injury. 2.110 We regard this extra element as of great importance in preventing a large and uncertain overlap developing between second degree murder and gross negligence manslaughter. Many of those currently convicted of gross negligence manslaughter will, in fact, have been aware that their conduct posed a risk of causing death. They will, however, have foolishly acted in the belief that the chance of the harm materialising was remote. That would be true, for example, of an electrician who is mistakenly confident that he or she can cut corners on health and safety’s 180 HOMICIDE ‘bureaucratic requirements’ (as he or she sees them) without posing undue risks to customers. We do not believe that such an offender should necessarily be guilty of second degree murder if he or she kills. The electrician will almost certainly be guilty of, and can be punished severely for, manslaughter, if the cost-cutting measures lead to someone’s death. That will usually be punishment enough. 2.111 The extra element ensures that those who kill through simple carelessness or disregard, but without anything that could (speaking very loosely) be called a hostile or aggressive act directed at someone, should be guilty only of manslaughter. The degree of their carelessness or disregard can be reflected in the sentence received upon conviction for manslaughter. In the electrician example just given, the electrician does not intend to cause injury or fear or risk of injury. So, in spite of his or her awareness of the possibly fatal consequences of corner-cutting, he or she should not be convicted of second degree murder if death results. The report then looked at the proposed mens rea for first degree murder in more detail. As outlines above, the report recommends that first degree murder should encompass situations where D intentionally kills or where D kills intending to do serious injury whilst aware that his actions create a serious risk of causing death. Reforming the mental element in murder The serious harm rule 1.17 Under the current law, D is liable for murder not only if he or she kills intentionally but also if he or she kills while intentionally inflicting harm which the jury considers to have been serious. In our view, the result is that the offence of murder is too wide. Even someone who reasonably believed that no one would be killed by their conduct and that the harm they were intentionally inflicting was not serious, can find themselves placed in the same offence category as the contract or serial killer. Here is an example: D intentionally punches V in the face. The punch breaks V’s nose and causes V to fall to the ground. In falling, V hits his or her head on the curb causing a massive and fatal brain haemorrhage. It is sometimes argued that manslaughter by recklessness and by gross negligence form one single category of manslaughter with two alternative fault requirements. We will be recommending that any reform of the law should adopt this approach . . . 1.18 This would be murder if the jury decided that the harm that D intended the punch to cause (the broken nose) can be described as ‘serious’. Whilst it is clear that a person who kills in these circumstances should be guilty of a serious homicide offence, it is equally clear to the great majority of our consultees that the offence should not be the top tier or highest category offence. 1.19 . . . Parliament, when it passed the Homicide Act 1957, never intended a killing to amount to murder – at that time a capital offence – unless (amongst other things) the defendant (“D”) realised that his or her conduct might cause death. The widening of the law of murder beyond such cases came about through an unexpected judicial development of the law immediately following the enactment of the 1957 legislation. . . . 181 CASES AND MATERIALS ON CRIMINAL LAW 1.20 The inclusion of all intent-to-do-serious-harm cases within murder distorts the sentencing process for murder. The fact that an offender only intended to do serious harm, rather than kill, is currently regarded as a mitigating factor that justifies the setting of a shorter initial custodial period as part of the mandatory life sentence. On the face of it, this seems perfectly reasonable. However, there is a strong case for saying that when an offence carries a mandatory sentence, there should be no scope for finding mitigation in the way in which the basic or essential fault elements come to be fulfilled. 1.21 We have been informed by research, carried out by Professor Barry Mitchell, into public opinion about murder. This shows that the public assumes that murder involves an intention to kill or its moral equivalent, namely a total disregard for human life. The latter may not be evident in a case where someone has intentionally inflicted harm the jury regards as serious, as when D intentionally breaks someone’s nose. Indeed, some members of the public regarded deaths caused by intentionally inflicted harm that was not inherently life-threatening as being in some sense ‘accidental’. 1.22 Having said that, we do not recommend that killing through an intention to do serious injury should simply be regarded as manslaughter. Manslaughter is an inadequate label for a killing committed with that degree of culpability. In any event, to expand the law of manslaughter still further would be wrong because manslaughter is already an over-broad offence. 1.23 We will be recommending that the intent-to-do-serious-injury cases should be divided into two. Cases where D not only intended to do serious injury but also was aware that his or her conduct posed a serious risk of death should continue to fall within the highest category or top tier offence. This is warranted by the kind of total disregard for human life that such Ds show. They are morally equivalent to cases of intentional killing. Cases where D intended to do serious injury but was unaware of a serious risk of killing should fall (along with some instances of reckless killing) into a new middle tier homicide offence. Reckless manslaughter 1.24 The scope of murder is both too broad and too narrow. Where the scope of murder is too narrow, the scope of manslaughter is correspondingly too broad. In particular, the law is too generous to some who kill by ‘reckless’ conduct, that is those who do not intend to cause serious harm but do realise that their conduct involves an unjustified risk of causing death. The law is too generous in treating all those who realise that their conduct poses a risk of causing death but press on regardless as guilty only of manslaughter. Again, the problems have arisen from the way that periodic judicial development of the law in individual cases, albeit well-intentioned, has changed the boundaries of homicide offences. 1.25 . . . When the Homicide Act 1957 was passed, it was still accepted by both Parliament and by the courts that the archaic language of ‘malice aforethought’ governed the fault element in murder. But malice aforethought has never been a term with very clear boundaries and differences soon emerged between the courts and Parliament over how it should be understood . . . 1.26 At that time, the courts treated malice aforethought as covering cases in which the offender: either (a) intended to kill; or (b) intended to cause serious harm; or (c) had knowledge that the act which causes death will probably cause the death of or grievous bodily harm to some person. However, during the passage of the Homicide Act 1957, Parliament was led to believe that (b) was not a species of malice aforethought and that malice aforethought could not be established 182 HOMICIDE without D being proven to have at least been aware that the harm done was life-threatening. This was the basis upon which the Homicide Act 1957 was passed. Parliament’s belief was founded on the Lord Chief Justice’s evidence to the Royal Commission on Capital Punishment, whose report led to the passing of the Homicide Act 1957. 1.27 Defined either way, however, malice aforethought provided sufficient coverage to ensure that the worst kinds of reckless killer could be convicted of murder. Here is an example: D, intending to cause fear and disruption, plants a bomb. D gives a warning which D believes might be sufficient to permit the timely evacuation of the area but probably would not be. In the ensuing explosion, someone is killed. 1.28 At the time of the enactment of the Homicide Act 1957, such a person would have been regarded by both Parliament and the courts as acting with ‘malice aforethought’ and would be guilty of murder . . . 1.29 Immediately after the passing of the Homicide Act 1957, however, the Court of Appeal indicated that only an intention to kill or to cause serious harm – ((a) and (b) in paragraph 1.26 above) – would suffice as proof of ‘malice aforethought’. In 1975, there was what can be interpreted as an attempt by the House of Lords to reconcile this new view with the older and broader understanding of malice aforethought, that is, as including exposing others to a probable risk of serious harm or death. It was held that a jury could find that D intended to kill or to cause serious harm if he or she foresaw one or other of these results was a highly probable result of his or her conduct. However, developments did not stop there. 1.30 In 1985, the use of the label ‘malice aforethought’ to describe the fault element for murder was overtly criticised by the House of Lords, even though it is at the heart of section 1 of the Homicide Act 1957. Further, the House of Lords made it clear beyond doubt that intention should not be construed as to automatically include the mere foresight of probable consequences. That development led to a series of further cases on the exact width of the law. What has emerged is that murder no longer includes killing by reckless risk-taking, as such, however heinous the killing. Such killings, although they can be encompassed by the woolly language of ‘malice aforethought’, are not intentional. Consequently, from 1985 onwards, the hypothetical bomber described in paragraph 1.27 above could no longer be guilty of murder because he or she did not intend to kill or to cause serious injury. He or she could only be guilty of (reckless) manslaughter. ... INTENTION 3.9 One or more of the fault elements for first degree murder, second degree murder and manslaughter use the term ‘intention’. The courts have often struggled with the meaning of this key term. However, the law has now reached a reasonably stable state. The question is whether a definition is needed that significantly alters the common law understanding of intention. We have concluded that there is no such need but that the existing law governing the meaning of intention should be codified. ... 3.12 At common law, someone must be taken to have intended something if they acted in order to bring it about. In that respect, ‘intention’ is partly defined by the common law. However, in 183 CASES AND MATERIALS ON CRIMINAL LAW unusual cases, typically murder cases, that definition has proven to be too narrow. It excludes from murder those cases that should be murder given D’s especially high level of culpability. 3.13 Accordingly, the following rule has been developed at common law. The jury may – but not must – find that the defendant (D) intended the result if D thought it would be a certain consequence (barring some extraordinary intervention) of his or her actions, whether he or she desired it or not. Take the following examples: D is in the process of stealing V’s car. V leaps onto the car bonnet to deter D from driving off. D accelerates to 100 miles per hour and continues at that speed. Eventually V’s grip loosens and V falls off the car. The fall kills V. D claims he did not intend to kill V or to cause V serious injury but was simply determined to escape come what may. Given that we are not engaged in a drafting exercise, we will not distinguish in what follows between the phrases ‘foresight of virtual certainty’, ‘foresight of certainty (barring some extraordinary intervention)’ and ‘foresight that X will/would happen’. D is jogging along a narrow path that follows a cliff edge. V is walking slowly ahead of him. D wantonly barges V over the cliff rather than slowing down and asking V to step aside so that D can pass. V is killed by the fall. D says that his intention was to keep running at the same speed at all costs, and he was not concerned with whether V lived or died. 3.14 In both these examples, the jury should be directed that they may find that D intended to kill V or to cause V serious injury, if they are sure that D realised that V was certain (barring an extraordinary intervention) to die or suffer serious injury, if D did what he or she was set upon doing. We would expect the jury to find a intention to kill or cause serious harm in both cases. ... 3.19 Someone should be taken to ‘intend’ a result if they act in order to bring it about. That is the basic definition of intention . . . 3.20 Very occasionally, there will be cases where the judge believes that justice may not be done unless an expanded understanding of intention is given (two examples were given in paragraph 3.13 above). In such cases, the judge should direct the jury that they may find intention to kill if D thought that his or her action would certainly (barring an extraordinary intervention) kill, even if the death was undesired. 3.21 We acknowledge that this approach gives the jury an element of discretion in deciding whether, in cases such as those within the examples in paragraph 3.13 above, a verdict of (first degree) murder can and should be returned. The result in such cases will not be wholly determined by legal rules governing the meaning of intention. We believe that it is sometimes necessary and desirable that juries should have that element of discretion if the alternative is a more complex set of legal rules that they must apply. It is the price of avoiding complexity. Complexity must be kept to a minimum if the new structure of homicide offences is to be acceptable to Parliament, the public and the legal profession. 3.22 Some academics have suggested that it would be simpler to abandon the pretence, as they see it, that it is true ‘intention’ that is found by the jury when it exercises this discretion. They claim it would be simpler and more honest to say that someone can be found guilty of first degree murder either if they intend to kill (or to cause serious injury aware of a serious risk of causing 184 HOMICIDE death) or if they know or believe that death or serious injury (aware of a serious risk of death) will occur. On this view, intention, knowledge and belief, are alternate forms of fault element . . . 3.23 Naturally, we recognise that there are differences between intention, knowledge and belief. The law would certainly be little worse off for taking an alternative approach in which these mental states are carefully separated. However, we do not believe that this approach would be a substantial improvement, at least in the context of homicide. There is, for example, no evidence that the existing law gives rise to any confusion in the jury room. If the law confused juries we would expect juries to be consistently sending notes to judges asking for further explanation. We have not received reports that this has occurred. 3.24 In some areas of the law it may be necessary to distinguish between intention and knowledge or belief that something will happen. This may be necessary where criminal liability depends upon which of these alternate fault elements is established. It is not clear that the distinction between these fault elements does or should serve this purpose in homicide cases. 3.25 For example, the distinction between intentionally and knowingly killing would matter if the defences of necessity or duress of circumstances were available to those who knowingly killed (that is, where death was foreseen as certain to occur) but not in cases where someone acted in order to kill. If duress and necessity became defences to first degree murder, we do not believe that this approach would attract the courts. There can be cases of intentional killing that these defences should cover. Conversely, there can be cases where death was foreseen as certain to occur in which the defence should be denied. In many instances, D’s exact state of mind would simply affect the jury’s assessment of whether the reasonable person might have done as D did. So, distinguishing formally between these states of mind would increase, rather than reduce, the complexities involved in deciding whether these defences should apply in first degree murder cases. 3.26 Giving the jury the power to find intention when they find that D foresaw the result as virtually certain widens the fault element in the law of homicide. However, it does this whilst avoiding the much greater uncertainty involved in the use of evaluative terms such as ‘recklessness’ or ‘extreme indifference’. That the law expands the fault element through letting the jury decide when intention should be found, rather than through requiring the jury to apply yet further legal rules governing inference-drawing, can thus be regarded as a strength and not a weakness. 3.27 We recommend that the existing law governing the meaning of intention is codified as follows: (1) A person should be taken to intend a result if he or she acts in order to bring it about. (2) In cases where the judge believes that justice may not be done unless an expanded understanding of intention is given, the jury should be directed as follows: an intention to bring about a result may be found if it is shown that the defendant thought that the result was a virtually certain consequence of his or her action. ‘AWARENESS’ OF RISK 3.28 In Part 2, we recommended that a person should be guilty of first degree murder if he or she killed intending to do serious injury and was aware that his or her conduct involved a serious risk of death. We also recommended that a person should be guilty of second degree murder if he or she intended to cause some injury or a risk or a fear of serious injury and was aware that his or her conduct involved a serious risk of death. 185 CASES AND MATERIALS ON CRIMINAL LAW 3.29 We do not believe that the use of the terms ‘aware’ and ‘awareness’ will give rise to practical difficulties. However, to avoid doubt, we stress that awareness involves conscious advertence to the risk. In particular, someone should not be said to have been aware of a risk at the time of the alleged offence, unless it was brought to mind at the relevant time. Merely having knowledge of the risk stored in one’s memory ought not to suffice. Take the following example: D is told that V is a haemophiliac, whose life is endangered by any serious flesh wound. Some months later, D has a violent argument with V, picks up a knife and stabs V once in the leg. V bleeds to death in spite of being taken promptly to hospital. 3.30 In this example, it may well be that the prosecution can show (a) that D intended to do serious injury (the stab to the leg) and (b) that D was aware that V consequently faced a serious risk of bleeding to death because of his haemophilia. If so, under our recommendations, D would be guilty of first degree murder. 3.31 However, it should not be enough for the prosecution to simply show that D had been told of V’s condition in the past. The prosecution should have to show that D was aware of V’s condition and the resulting risk of death at the time of the stabbing. It is a matter for the jury whether, on the particular facts, D consciously adverted to, or thought of, the risk when stabbing V. In that regard, however, as Lord Bingham (R v G [2003] UKHL 50, [2004] 1 AC 1034 at [39]) has observed: . . . it is not to be supposed that the tribunal of fact will accept a defendant’s assertion that he never thought of a certain risk when all the circumstances and probabilities and evidence of what he did and said at the time show that he did or must have done. 3.32 A final point. Both first and second degree murder should be regarded as crimes of ‘specific intent’. This means that if D did not kill with the requisite fault element, he or she must be acquitted of murder although he or she may still be guilty of manslaughter. In particular, D should be entitled to rely on any evidence tending to show that he or she did not have the intent or awareness in question, including evidence of intoxication. ... ‘SERIOUS’ RISK 3.36 By ‘serious’ risk, we mean a risk that ought to be taken seriously. We do not mean a risk that by definition is ‘likely to’, or ‘probably will’ result in harm done. Probability may come into the question of whether a risk is ‘serious’ but it is not determinative of the question. It is merely one factor determining whether the risk ought to be taken seriously. The Australian High Court has succinctly and clearly expressed what we mean by serious risk in Boughey [(1986) 161 CLR 10] with the following formulation [at p 15] : ‘a substantial or real chance, as distinct from a mere possibility’. 4.6 VOLUNTARY MANSLAUGHTER There are four defences that are uniquely available to a defendant who is charged with murder. They are: • diminished responsibility; • provocation; 186 HOMICIDE • infanticide; • suicide pact. All four operate as partial defences in the sense that, if they are made out, the defendant’s liability is reduced from murder to manslaughter, thus avoiding the consequences of the mandatory life sentence for murder. Diminished responsibility and provocation are by far the more important of the four and are considered in more detail in the extracts that follow. 4.6.1 INFANTICIDE The current defence of infanticide was introduced by the Infanticide Act 1938, s 1 of which provides: 1(1) Where a woman by any wilful act or omission causes the death of her child being a child under the age of 12 months, but at the time of the act or omission the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child or by reason of the effect of lactation consequent upon the birth of the child, then, notwithstanding that the circumstances were such that but for this Act the offence would have amounted to murder, she shall be guilty of [an offence], to wit of infanticide, and may for such offence be dealt with and punished as if she had been guilty of the offence of manslaughter of the child. The provision creates an offence of infanticide, but also makes clear that it operates as a defence to murder – typically the mother who kills her baby whilst suffering from post-natal depression. The provision is rarely invoked – in the region of five convictions a year are based on infanticide. This perhaps also reflects a reluctance to prosecute at all in such cases. One difficulty that has been identified however, (as the following extract indicates) relates to those women who kill as a result of post-natal depression, but who refuse to acknowledge their condition – and hence do not provide the prosecution with the basis for this alternative to murder. R v Kai-Whitewind [2005] EWCA Crim 1092 The defendant gave birth to a baby boy but had difficulty bonding with him. She told her health visitor that she was suffering from depression but was not taking her medication because she was breastfeeding. The defendant also admitted that, for a fleeting moment, she had felt like killing the child. A few weeks later the child died whilst in the sole care of the defendant. Post-mortem examinations of the child revealed, inter alia, new and old blood in the lungs, consistent with two distinct episodes of upper airway obstruction. At her trial the defendant did not give evidence (although the defence maintained that death had arisen from natural causes) and she was convicted of murder. The defendant appealed unsuccessfully to the Court of Appeal. Given that there was evidence that the defendant had intentionally caused the death of the child, and given her refusal to raise the defences of infanticide or diminished responsibility, the Court of Appeal had no option but to uphold the conviction. In the course of delivering the judgment of the court Judge LJ made the following observations on the need for reform of the defence of infanticide: 187 CASES AND MATERIALS ON CRIMINAL LAW 135. . . . Infanticide remains both as a defence to murder, available to the mother who causes the death of her infant before it reaches twelve months, but simultaneously, as an offence in its own right where the mother has killed the baby, and it is nevertheless accepted that the balance of her mind was disturbed. 136. For many years now there has been some considerable discussion about infanticide, its definition, and indeed whether it should continue to be an offence, or alternatively, a defence to murder. Thus the Report of the Committee on Mentally Abnormal Offenders (Cmnd 6244 Chairman: Right Hon. Lord Butler of Saffron Walden (1975)) believed that assuming, contrary to its own ‘decided preference’ the mandatory life sentence for murder were retained, diminished responsibility should be re-worded so as to apply where the defendant was ‘suffering from a form of mental disorder . . . such as to be an extenuating circumstance . . .’. Infanticide would then cease to be of any practical value. 137. The Report pointed out at paragraph 19.23 that ‘the medical principles on which the Infanticide Act is based may no longer be relevant. The theory behind the Act was that childbirth produced an hormonal disorder which caused mental illness. But. . . . the operative factors in child-killing are often the stress of having to care for the infant, who may be unwanted or difficult, and personality problems . . .’. In the next paragraph the Committee quoted at length from ‘perhaps the most impressive evidence’ received on the subject from the Governor and staff of Holloway Prison. ‘The disturbance of the “balance of mind” that the Act requires can rarely be said to arise directly from incomplete recovery from the effects of childbirth, and even less so from the effects of lactation . . . A combination of environmental stress and personality disorder . . . are the usual aetiological factors . . . and the relationship to “incomplete recovery from the effects of childbirth or lactation” specified in the Infanticide Act is often somewhat remote.’ 138. In its Fourteenth Report on Offences Against the Person, Cmnd 7844 (1980), the Criminal Law Revision Committee suggested that infanticide should be retained, but recommended that it should be extended to cases where the balance of the mother’s mind was disturbed by “environmental or other stresses”. Clause 64(1) of the Draft Criminal Code Bill provided that a mother is guilty of infanticide: . . . if her act is done when the child is under the age of 12 months and the balance of her mind is disturbed by reason of the effect of giving birth or of circumstances consequent upon the birth. The Report of the Select Committee of the House of Lords on Murder and Life Imprisonment (HL Paper 78) (1989) did not recommend that there should be a change in the law, but suggested that it should be ‘further considered’. 139. The issues raised in these cases are delicate and sensitive. In October 2004 the Home Office announced a comprehensive review of the law of murder. The recently published Law Commission, Ninth Programme of Law Reform, anticipates that it will be involved in and contribute to this review. The public interest requires that the problems arising from and connected to the offence of infanticide should be included in any review. We shall highlight two particular areas of concern. The first is whether, as a matter of substantive law, infanticide 188 HOMICIDE should extend to circumstances subsequent to the birth, but connected with it, such as the stresses imposed on a mother by the absence of natural bonding with her baby: in short, whether the current definition of infanticide reflects modern thinking. The second problem arises when the mother who has in fact killed her infant is unable to admit it. This may be because she is too unwell to do so, or too emotionally disturbed by what she has in fact done, or too deeply troubled by the consequences of an admission of guilt on her ability to care for any surviving children. When this happens, it is sometimes difficult to produce psychiatric evidence relating to the balance of the mother’s mind. Yet, of itself, it does not automatically follow from denial that the balance of her mind was not disturbed: in some cases it may indeed help to confirm that it was. 140. The law relating to infanticide is unsatisfactory and outdated. The appeal in this sad case demonstrates the need for a thorough re-examination. 4.6.1.1 Reforming infanticide The Law Commission’s Report (Law Com No 304) Murder, Manslaughter And Infanticide considered the need for changes to the offence/defence of infanticide and made these proposals. 1.47 A particular anomaly is that D is entitled to have evidence that he or she was provoked to lose self-control put before the jury no matter how unlikely it is that the defence will succeed. Thus, if D claims that he was provoked to lose his self-control by V’s failure to cook his steak medium rare as ordered, the defence has to be put to the jury even though it has no merit and ought to be rejected. By way of contrast, if instead of being provoked, D’s killing was a fear-driven over-reaction to a threat of future serious violence, he or she has no defence to murder at all, however well founded the fear. The courts have declined to create or extend a partial defence to cover such cases. Accordingly, reform of this area now depends upon legislative action by Parliament. 1.48 In 2004 we recommended reform of the partial defence of provocation. We set out how we thought the defence should be reformed to create greater certainty and to correct the lop-sided character of the law. During the current consultation, consultees have again broadly agreed that the defence should be reformed along the lines we are recommending . . . 1.51 Where the offence of infanticide is concerned, the problem is not so much the definition but, rather, the procedure for ensuring that evidence of a mother’s mental disturbance at the time of the killing is heard at trial. A mother may be ‘in denial’ about having killed her infant. She may, therefore, be unwilling to submit to a psychiatric examination if the point of this examination seems to her to be to find out why she did it. This is because she cannot accept that she did do it. In such circumstances, she is unlikely to have another defence and is, therefore, likely to be convicted of murder. This is not in the public interest. However, this is not an easy problem to solve. We recommend the adoption of a post-trial procedure designed to do justice in these cases . . . Missing defences 1.52 Whereas there has recently been controversy over whether provocation should continue to be a partial defence to murder, other strong claims for mitigation of the offence of murder have 189 CASES AND MATERIALS ON CRIMINAL LAW failed to gain legal recognition. Judges have decided that they would prefer Parliament to decide whether there should be new partial defences to murder but Parliament has not had the time to consider the matter. ... 8.23 Based on the responses to our consultation and recent research, we recommend that the offence/defence of infanticide be retained without amendment (subject to ‘murder’ being replaced with ‘first degree murder or second degree murder’). ... 8.46 We provisionally proposed that: in circumstances where infanticide is not raised as an issue at trial and the defendant (biological mother of a child aged 12 months or less) is convicted by the jury of murder [first degree murder or second degree murder], the trial judge should have the power to order a medical examination of the defendant with a view to establishing whether or not there is evidence that at the time of the killing the requisite elements of a charge of infanticide were present. If such evidence is produced and the defendant wishes to appeal, the judge should be able to refer the application to the Court of Appeal and to postpone sentence pending the determination of the application. 4.6.2 SUICIDE PACT Section 4(1) of the Homicide Act 1957 introduced the defence of suicide pact. It provides: 4(1) It shall be manslaughter, and shall not be murder, for a person acting in pursuance of a suicide pact between him and another to kill the other or be a party to the other being killed by a third person. For these purposes a suicide pact is defined by s 4(3) as: ‘. . . a common agreement between two or more persons having for its object the death of all of them, whether or not each is to take his own life, but nothing done by a person who enters into a suicide pact shall be treated as done by him in pursuance of the pact unless it is done while he has the settled intention of dying in pursuance of the pact’. Note that in its Report (Law Com No 304) Murder, Manslaughter And Infanticide the Law Commission concluded that any reform of the suicide pact defence should be considered in the context of a wider review of ‘mercy’ killings. 4.6.3 DIMINISHED RESPONSIBILITY Diminished responsibility was introduced as a partial defence to murder by the Homicide Act 1957. Section 2 of the Homicide Act 1957 provides: 190 HOMICIDE (1) Where a person kills or is party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts or omissions in doing or being a party to the killing. (2) On a charge of murder, it shall be for the defence to prove that the person charged is by virtue of this section not liable to be convicted of murder. (3) A person who but for this section would be liable, whether as principal or as accessory, to be convicted of murder shall be liable instead to be convicted of manslaughter. (4) The fact that one party to a killing is by virtue of this section not liable to be convicted of murder shall not affect the question whether the killing amounted to murder in the case of any other party to it. 4.6.3.1 ‘Abnormality of the mind’ R v Byrne [1960] 2 QB 396 (CA) Lord Parker CJ: The appellant was convicted of murder . . . The victim was a young woman whom he strangled in the YWCA hostel, and after her death he committed horrifying mutilations upon her dead body. The facts as to the killing were not disputed, and were admitted in a long statement made by the accused. The only defence was that in killing his victim the accused was suffering from diminished responsibility as defined by s 2 of the Homicide Act 1957, and was accordingly, guilty not of murder but of manslaughter. Three medical witnesses were called by the defence, the senior medical officer at Birmingham Prison and two specialists in psychological medicine. Their uncontradicted evidence was that the accused was a sexual psychopath, that he suffered from abnormality of mind, as indeed was abundantly clear from the other evidence in the case, and that such abnormality of mind arose from a condition of arrested or retarded development of mind or inherent causes. The nature of the abnormality of mind of a sexual psychopath, according to the medical evidence, is that he suffers from violent perverted sexual desires which he finds it difficult or impossible to control. Save when under the influence of his perverted sexual desires he may be normal. All three doctors were of opinion that the killing was done under the influence of his perverted sexual desires, and although all three were of opinion that he was not insane in the technical sense of insanity laid down in the M’Naghten Rules it was their view that his sexual psychopathy could properly be described as partial insanity . . . [Lord Parker CJ referred to the provisions of s 2 of the 1957 Act and continued:] ‘Abnormality of mind’, which has to be contrasted with the time-honoured expression in the M’Naghten Rules ‘defect of reason’, means a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal. It appears to us to be wide enough to cover the mind’s activities in all its aspects, not only the perception of physical acts and matters, and the ability to form a rational judgment as to whether an act is right or wrong, but also the ability to exercise willpower to control physical acts in accordance with that rational judgment. The expression ‘mental 191 CASES AND MATERIALS ON CRIMINAL LAW responsibility for his acts’ points to a consideration of the extent to which the accused’s mind is answerable for his physical acts which must include a consideration of the extent of his ability to exercise willpower to control his physical acts. Whether the accused was at the time of the killing suffering from any ‘abnormality of mind’ in the broad sense which we have indicated above is a question for the jury. On this question medical evidence is no doubt of importance, but the jury are entitled to take into consideration all the evidence, including the acts or statements of the accused and his demeanour. They are not bound to accept the medical evidence if there is other material before them which, in their good judgment, conflicts with it and outweighs it. The aetiology of the abnormality of mind (namely whether it arose from a condition of arrested or retarded development of mind or any inherent causes, or was induced by disease or injury) does, however, seem to be a matter to be determined on expert evidence. Assuming that the jury are satisfied on the balance of probabilities that the accused was suffering from ‘abnormality of mind’ from one of the causes specified in parentheses in the subsection, the crucial question nevertheless arises: was the abnormality such as substantially impaired his mental responsibility for his acts in doing or being a party to the killing? This is a question of degree and essentially one for the jury. Medical evidence is, of course, relevant, but the question involves a decision not merely as to whether there was some impairment of the mental responsibility of the accused for his acts but whether such impairment can properly be called ‘substantial’, a matter upon which juries may quite legitimately differ from doctors. Furthermore, in a case where the abnormality of mind is one which affects the accused’s self-control the step between ‘he did not resist his impulse’ and ‘he could not resist his impulse’ is, as the evidence in this case shows, one which is incapable of scientific proof. A fortiori there is no scientific measurement of the degree of difficulty which an abnormal person finds in controlling his impulses. These problems which in the present state of medical knowledge are scientifically insoluble, the jury can only approach in a broad, common sense way. This court has repeatedly approved directions to the jury which have followed directions given in Scots cases where the doctrine of diminished responsibility forms part of the common law. We need not repeat them. They are quoted in R v Spriggs [1958] 1 QB 270. They indicate that such abnormality as ‘substantially impairs his mental responsibility’ involves a mental state which in popular language (not that of the M’Naghten Rules) a jury would regard as amounting to partial insanity or being on the borderline of insanity . . . . . . Inability to exercise willpower to control physical acts, provided that it is due to abnormality of mind from one of the causes specified in parentheses in the subsection is, in our view, sufficient to entitle the accused to the benefit of the section; difficulty in controlling his physical acts depending on the degree of difficulty, may be. It is for the jury to decide on the whole of the evidence whether such inability or difficulty has, not as a matter of scientific certainty but on the balance of probabilities, been established, and in the case of difficulty whether the difficulty is so great as to amount in their view to a substantial impairment of the accused’s mental responsibility for his acts. The direction in the present case thus withdrew from the jury the essential determination of fact which it was their province to decide . . . 192 HOMICIDE R v Sanders (1991) 93 Cr App R 245 The appellant was charged with the murder of his wife. He sought, unsuccessfully, to rely on the defence of diminished responsibility, supported by expert evidence. The Crown conceded that the appellant suffered from an abnormality of the mind, but contested the point as to whether or not it affected his responsibility for his actions. On appeal the appellant raised the point that the trial judge had failed to direct the jury expressly on the fact that the expert testimony had been unanimous in finding that the requirements of s 2(1) of the Homicide Act 1957 were satisfied. The appeal was dismissed. Watkins LJ: We were referred to the following authorities. Matheson (1958) 42 Cr App R 145; [1958] 2 All ER 87, was a five judge court and it was held that where on a charge of murder a defence of diminished responsibility is relied on, and the medical evidence that diminished responsibility exists is uncontradicted and the jury return a verdict of guilty of murder, if there are facts entitling the jury to reject or differ from the opinions of the medical men the Court of Criminal Appeal will not interfere with the verdict unless it can be said that the verdict would amount to a miscarriage of justice. There may be cases where evidence of the conduct of the accused before, at the time of and after the killing may be a relevant consideration for the jury in determining this issue. Where, however, there is unchallenged medical evidence of abnormality of mind and consequent substantial impairments of mental responsibility and no facts or circumstances appear which can displace or throw doubt on that evidence a verdict of guilty of murder is one which cannot be supported having regard to the evidence within the meaning of s 4(1) of the Criminal Appeal Act 1907. In the course of the judgment of the court, which was given by Lord Goddard CJ, he said at p 151 and p 89 respectively: Here it is said there was evidence of premeditation and undoubtedly there was, but an abnormal mind is as capable of forming an intention and desire to kill as one that is normal; it is just what an abnormal mind might do. A desire to kill is quite common in cases of insanity . . . Where a defence of diminished responsibility is raised, a plea of guilty to manslaughter on this ground should not be accepted; the issue must be left to the jury, as in the case of a defence of insanity. It was complained in the perfected grounds in this case if not in the course of submissions to us that the judge had made no reference to premeditation being not necessarily inconsistent with diminished responsibility. That complaint was, we think, quite unjustified for the judge said of it in the green bundle at p 4C: Even if the killing was premeditated, the doctors say that does not exclude or discount diminished responsibility as a defence, or in any way alter their opinions. Although Dr Holland accepted that if the killing was in fact premeditated that would mean that the defendant had not told him the truth. It is for you to assess that evidence and say what you make of it. The next case which we were referred to was Bailey in 1961; reported in (1978) 66 Cr App R 31 [as a note, following Walton v R, below]. In that case a 17 year old youth was convicted of murder and sentenced to be detained at Her Majesty’s pleasure. The Lord Chief Justice in giving the judgment of the court said at p 32: 193 CASES AND MATERIALS ON CRIMINAL LAW This court has said on many occasions that of course juries are not bound by what the medical witness say, but at the same time they must act on evidence, and if there is nothing before them, no facts and no circumstances shown before them which throw doubt on the medical evidence, then that is all they are left with, and the jury, in those circumstances, must accept it. That was the effect of the decision of this court, sitting as a court of five judges, in the case of Matheson and as we understand it, nothing that this court said in the case of Byrne (1960) 44 Cr App R 246 throws any doubt upon what was said in Matheson’s case. In Walton v R (1978) 66 Cr App R 25; [1978] AC 788, a Privy Council case, in the course of giving the opinion of the Board, Lord Keith of Kinkel stated at p 30 and p 793: These cases make clear that upon an issue of diminished responsibility the jury are entitled and indeed bound to consider not only the medical evidence but the evidence upon the whole facts and circumstances of the case. These include the nature of the killing, the conduct of the accused before, at the time of and after it and any history of mental abnormality. It being recognised that the jury on occasion may properly refuse to accept medical evidence, it follows that they must be entitled to consider the quality and weight of that evidence. As was pointed out by Lord Parker CJ in Byrne (1960) 44 Cr App R 246, 254 what the jury are essentially seeking to ascertain is whether at the time of the killing the accused was suffering from a state of mind bordering on but not amounting to insanity. That task is to be approached in a broad common sense way. Finally, we were asked to look at Kiszko (1979) 68 Cr App R 62. In that case Bridge LJ, giving the judgment of the court, stated at p 69: The most recent pronouncement on this subject, in a judgment of the Privy Council in the case of Walton v R (1978) 66 Cr App R 25 seems to us still to encapsulate the law entirely accurately and not to require any modification in the light of the provisions of s 2(1)(a) of the Criminal Appeal Act 1968. After referring to earlier authorities, the judgment delivered by Lord Keith of Kinkel is in these terms at p 30. . . . He then sets out the passage which I have already read. From these cases, in our opinion, two clear principles emerge where the issue is diminished responsibility. The first is that if there are no other circumstances to consider, unequivocal, uncontradicted medical evidence favourable to a defendant should be accepted by a jury and they should be so directed. The second is that where there are other circumstances to be considered the medical evidence, though it be unequivocal and uncontradicted, must be assessed in the light of the other circumstances. COMMENTS AND QUESTIONS 1 194 According to Edmund Davies J in R v Lloyd [1967] 1 QB 175, whether or not a defendant’s responsibility for his actions has been substantially impaired, as opposed to moderately, is a question of fact for the jury. As he put it: ‘. . . Substantial does not mean total, that is to say, the mental responsibility need not be totally impaired, so to speak, destroyed altogether. At the other end of the scale substantial does not mean trivial or minimal. It is something in between and Parliament has left it to . . . juries to say on the evidence, was the mental responsibility impaired, and, if so, was it substantially impaired?’ HOMICIDE 2 The courts have tended to take a liberal view as to what can give rise to diminished responsibility. In R v Reynolds [1988] Crim LR 679, it was, in effect, accepted that premenstrual syndrome and post-natal depression could be causes. In R v Hobson (1997) The Times, 25 June, the Court of Appeal held that ‘battered woman syndrome’, having been included in the British classification of mental diseases recognised by the psychiatric profession, could form the basis of a plea of diminished responsibility. 3 Diminished responsibility will only be available as a defence where death has actually occurred, hence it is not available to a defendant charged with attempted murder; see R v Campbell [1997] Crim LR 495. 4 The fact that s 2(2) of the 1957 Act places the legal burden of proof on the defendant seeking to raise the defence of diminished responsibility has survived scrutiny under the Human Rights Act 1998. In R v Lambert [2001] 1 All ER 1014, the Court of Appeal confirmed that the sub-section did not require the defendant to prove any matter that could be said to be an element of the offence of murder. Placing the burden of proof on defendants as regards defences was not contrary to Art 6 of the European Convention on Human Rights. 4.6.3.2 Diminished responsibility and intoxication R v Tandy [1989] 1 WLR 350 (CA) The appellant was an alcoholic. She normally drank Cinzano. On one occasion, however, she consumed 90% of a bottle of vodka (which contains more alcohol than Cinzano). Later that day, she strangled her 11 year old daughter. Watkins LJ: . . . So in this case it was for the appellant to show: (1) that she was suffering from an abnormality of mind at the time of the act of strangulation; (2) that that abnormality of mind was induced by disease, namely the disease of alcoholism; and (3) that the abnormality of mind induced by the disease of alcoholism was such as substantially impaired her mental responsibility for her act of strangling her daughter. The principles involved in seeking answers to these questions are, in our view, as follows. The appellant would not establish the second element of the defence unless the evidence showed that the abnormality of mind at the time of the killing was due to the fact that she was a chronic alcoholic. If the alcoholism had reached the level at which her brain had been injured by the repeated insult from intoxicants so that there was gross impairment of her judgment and emotional responses, then the defence of diminished responsibility was available to her, provided that she satisfied the jury that the third element of the defence existed. Further, if the appellant were able to establish that the alcoholism had reached the level where although the brain had not been damaged to the extent just stated, the appellant’s drinking had become involuntary, that is to say she was no longer able to resist the impulse to drink then the defence of diminished responsibility would be available to her, subject to her establishing the first and third elements, because if her 195 CASES AND MATERIALS ON CRIMINAL LAW drinking was involuntary, then her abnormality of mind at the time of the act of strangulation was induced by her condition of alcoholism. On the other hand, if the appellant had simply not resisted an impulse to drink and it was the drink taken on the [day of the killing] which brought about the impairment of judgment and emotional response, then the defence of diminished responsibility was not available to the appellant. . . . The appellant had chosen to drink vodka on the Wednesday rather than her customary drink of Cinzano. Her evidence was that she might not have had a drink at all on the Tuesday. She certainly did not tell the jury that she must have taken drink on the Tuesday or Wednesday because she could not help herself. She had been able to stop drinking at 6.30 pm on the Wednesday evening although her supply of vodka was not exhausted. Thus her own evidence indicated that she was able to exercise some control even after she had taken the first drink, contrary to the view of the doctors. There was the evidence of Dr Lawson that the appellant would have had the ability on that Wednesday to abstain from taking the first drink of the day . . . The three matters on which the appellant relies in the perfected grounds of appeal for saying that there was a misdirection can be dealt with shortly. As to the first, in our judgment the judge was correct in telling the jury that if the taking of the first drink was not involuntary, then the whole of the drinking on the Wednesday was not involuntary. Further, as we have pointed out, the appellant’s own evidence indicated that she still had control over her drinking on that Wednesday after she had taken the first drink. As to the second, the jury were told correctly that the abnormality of mind with which they were concerned was the abnormality of mind at the time of the act of strangulation and as a matter of fact by that time on that Wednesday the appellant had drunk 90% of the bottle of vodka. On the third point, we conclude that for a craving for drinks or drugs in itself to produce an abnormality of mind within the meaning of s 2(1) of the Act of 1957, the craving must be such as to render the accused’s use of drink or drugs involuntary . . . R v Gittens [1984] 1 QB 698 (CA) The essential issue in this case was whether the abnormality of mind from which the appellant suffered when he killed his wife and stepdaughter was caused by the alcohol and drugs which he had taken prior to the killing or whether it was due to inherent causes coupled with the drink and drugs. Lord Lane CJ: . . . Where alcohol or drugs are factors to be considered by the jury, the best approach is that adopted by the judge and approved by this court in R v Fenton (1975) 61 Cr App R 261. The jury should be directed to disregard what, in their view, the effect of the alcohol or drugs upon the defendant was, since abnormality of mind induced by alcohol or drugs is not (generally speaking) due to inherent causes and is not therefore within the section. Then the jury should consider whether the combined effect of the other matters which do fall within the section amounted to such abnormality of mind as substantially impaired the defendant’s mental responsibility within the meaning of ‘substantial’ set out in R v Lloyd [1967] 1 QB 175. 196 HOMICIDE R v Sanderson (1994) 98 Cr App R 325 The appellant was convicted of killing a woman – a Miss Glasgow. On appeal the court had to consider the proper approach to be taken where there was evidence to suggest that diminished responsibility might be caused by inherent factors, upbringing, and drug abuse. Roch LJ: In this case there could not have been any real issue that the appellant, at the time he killed Miss Glasgow, was suffering from an abnormality of mind. He had no reason to want her death apart from his deluded beliefs for weeks. The way in which he inflicted death upon her and his subsequent behaviour all indicated that at the time his judgment and control over his emotions were not those of a normal mind. The first issue which arose on the medical evidence was the nature of that abnormality of mind: was it a paranoid psychosis, that is to say a serious disorder of the mind in which the appellant was suffering from fixed delusions centring around some perverted idea which had some important bearing on his actions, or was he suffering from simple paranoia? The second issue which arose out of the medical evidence was the cause of the abnormality of mind. Was the abnormality of mind due to inherent causes, the appellant’s childhood and upbringing, possibly exacerbated by drug addiction, or simply a side effect or consequence of his drug-taking? It is now well established by authority that for abnormality of the mind to come within the subsection it must be caused by one of the matters listed in the subsection; that is to say it must arise from a condition of arrested or retarded development of mind – of which there is no suggestion in this case – or from inherent causes or be induced by disease or injury. Dr Bowden’s evidence was that the appellant did not have the mental illness of paranoid psychosis and that as far as he was aware medical science showed that the taking of heroin and cocaine could not injure the structures of the brain. Consequently, his evidence was to the effect that the appellant did not and had not had any injury or disease which could have induced the paranoia. Further, his evidence denied that the paranoia arose from inherent cause; it arose simply because the appellant used cocaine. There was no evidence that his use of cocaine was involuntary. In those circumstances, in our judgment the Common Serjeant was quite correct to direct the jury that if they accepted the evidence of Dr Bowden and rejected that of Dr Coid the defence of diminished responsibility had to fail. In our judgment the jury could not have found that the appellant was suffering from an abnormality of mind within section 2(1) on the evidence of Dr Bowden. Consequently, the first ground of appeal fails. The court considers that there is substance in the second and third submissions made by the appellant’s counsel, and that for the reasons which we shall give shortly, the jury’s verdict in this case is unsafe and unsatisfactory. Cases of diminished responsibility can become difficult and confusing for a jury, and it is important that the judge in directing the jury should tailor his directions to suit the facts of the particular case. We think it will rarely be helpful to the jury to read to them section 2(1) in its entirety. Further, we consider that Annex F would have been of greater assistance had the words in brackets been confined to ‘arising from any inherent cause or induced by disease’, there being no evidence of arrested or retarded development or of injury. The judge in his directions to the jury at p 9G, which we have already cited, then summarising the defendant’s medical evidence and comparing it with the Crown’s medical evidence, referred 197 CASES AND MATERIALS ON CRIMINAL LAW to the abnormality of mind arising from any inherent cause or disease on three occasions. In his final direction to the jury on diminished responsibility at the end of the summing up, the judge again referred to those two potential causes when he said: Has the defendant proved that he was suffering from an abnormality of mind through inherent cause or induced by disease, that is to say a paranoid psychosis which is a mental illness, whether exacerbated by drugs or not? Again the jury were being directed to consider whether the abnormality of mind arose either from inherent cause or was induced by disease. Further, that direction was so worded that the jury could understand the disease to be the mental illness of paranoid psychosis. However, earlier in the summing up, the judge summarised Dr Coid’s opinion in this way: Dr Coid’s opinion was this: ‘The defendant was at the time of the killing and is now suffering from paranoid psychosis, a mental illness, forming incorrect and abnormal beliefs about other people. This was there already, irrespective of drug abuse. Although paranoid psychosis can be exacerbated by the use of cocaine over the years and much worse, nonetheless, quite apart from the drugs, paranoid psychosis, the mental illness, was there and that amounted to an abnormality of mind,’ which is, when you call it inherent or resulting from disease. We take it the last part should read: ‘which it is, whether you call it inherent or resulting from disease’. Thus the jury were being told Dr Coid was saying that the abnormality of mind was paranoid psychosis. In our opinion it was those apparently contradictory directions which must have given rise to the jury’s questions. Although their questions are not free from ambiguity the jury were probably asking: 1 What is meant by induced by disease or injury, that is to say what does induced mean? 2 Is paranoid psychosis a disease or injury which can induce an abnormality of mind? The judge interpreted the second question as being: ‘Can a paranoid psychosis be induced by disease or injury?’ and told the jury that he did not know; that ‘nobody speaks of paranoid psychosis arising from disease of injury’. That was simply not correct. The judge had summarised the appellant’s doctor’s evidence at p 9H: It is said for the defence through Dr Coid that there was an underlying paranoid psychosis or mental illness which amounted to an abnormality of mind within the Act. It arose from an inherent cause or disease of long-standing. Again, at p 23E in summarising Dr Coid’s evidence the judge told the jury that Dr Coid was saying that paranoid psychosis amounted to an abnormality of mind which it was whether one said it arose from inherent cause or was induced by disease. The judge should have sought clarification of the jury’s questions, and then, if the real difficulty was whether the mental illness or paranoid psychosis was a disease within the meaning of the subsection, he should have directed them that the medical evidence they had was that this abnormality of mind was the mental illness of paranoid psychosis, if Dr Coid was right, and if Dr Coid was correct as to the aetiology of that mental illness, then it came within the words: ‘arising from any inherent cause’ and was therefore within the subsection. In our judgment the answers that the judge gave failed to answer the questions which we believe 198 HOMICIDE the jury were asking, and would, in any event have confused them rather than have helped them. Mr Worsley for the Crown submits that the central issue was left to the jury. The judge finally left to the jury the substantive defence which the appellant was raising. The jury were being told, correctly, that if they accepted Dr Coid’s evidence, then the defence, subject to their view on the second question set out in Annex F, would succeed, whereas if they preferred Dr Bowden’s evidence, the defence failed. Thus, submits Mr Worsley, even if the questions had been clarified and direct answers given, the jury’s verdict would have been the same. He invites us to apply the proviso. To that submission, Mr Jones replied that the questions themselves showed that the jury were inclined to accept that there was a paranoid psychosis, i.e. Dr Coid’s evidence, rather than Dr Bowden’s simple paranoia resulting from the taking of cocaine. The jury’s concern was whether the paranoid psychosis came within the subsection. The jury should have been directed that the paranoid psychosis described by Dr Coid could, as a matter of law, come within the subsection. Had that direction been given, the probable verdict would have been one of manslaughter. We agree with that submission by Mr Jones . . . For those reasons we allow this appeal, quash the conviction of murder and substitute the conviction of manslaughter. R v Dietschmann [2003] 1 All ER 897 The defendant attacked and killed the victim, Nicholas Davies by punching him and kicking him on the head. There was evidence that the defendant had been heavily intoxicated at the time of the attack, and that he had also been suffering from a mental abnormality known as adjustment disorder, a condition triggered by the grief felt by the defendant following the death of a close relative. The jury rejected the defendant’s defence of diminished responsibility and he was convicted of murder. Following an unsuccessful appeal to the Court of Appeal the following question was certified as raising a point of law of general importance: (1) Does a defendant seeking to prove a defence of diminished responsibility under s 2(1) of the 1957 Act in a case where he had taken drink prior to killing the victim, have to show that if he had not taken drink (a) he would have killed as he in fact did; and (b) he would have been under diminished responsibility when he did so? (2) If not, what direction ought to be given to a jury as to the approach to be taken to self-induced intoxication which was present at the material time in conjunction with an abnormality of mind which falls within s 2(1) of the 1957 Act? Lord Hutton: . . . In a case where the defendant suffered from an abnormality of mind of the nature described in s 2(1) and had also taken alcohol before the killing and where (as the Court of Appeal held in this case) there was no evidence capable of establishing alcohol dependence syndrome as being an abnormality of mind within the subsection, the meaning to be given to the subsection would appear on first consideration to be reasonably clear. I would read the subsection to mean that if the defendant satisfies the jury that, notwithstanding the alcohol he had consumed and its effect on him, his abnormality of mind substantially impaired his mental responsibility for his acts in 199 CASES AND MATERIALS ON CRIMINAL LAW doing the killing, the jury should find him not guilty of murder but (under sub-s 3) guilty of manslaughter. I take this view because I think that in referring to substantial impairment of mental responsibility the subsection does not require the abnormality of mind to be the sole cause of the defendant’s acts in doing the killing. In my opinion, even if the defendant would not have killed if he had not taken drink, the causative effect of the drink does not necessarily prevent an abnormality of mind suffered by the defendant from substantially impairing his mental responsibility for his fatal acts. . . . [a number of] . . . points clearly emerge from the judgment of the Court of Appeal in R v Gittens. (i) Where a defendant suffers from an abnormality of mind arising from arrested or retarded development of mind or inherent causes or induced by disease or injury and has also taken drink before the killing, the abnormality of mind and the effect of the drink may each play a part in impairing the defendant’s mental responsibility for the killing. (ii) Therefore the task for the jury is to decide whether, despite the disinhibiting effect of the drink on the defendant’s mind, the abnormality of mind arising from a cause specified in sub-s 2(1) nevertheless substantially impaired his mental responsibility for his fatal acts. (iii) Accordingly it is not correct for the judge to direct the jury that unless they are satisfied that if the defendant had not taken drink he would have killed, the defence of diminished responsibility must fail. Such a direction is incorrect because it fails to recognise that the abnormality of mind arising from a cause specified in the subsection and the effect of the drink may each play a part in impairing the defendant’s mental responsibility for the killing. . . . When, in R v Gittens, the Court of Appeal stated that the jury should be directed ‘to disregard what, in their view, the effect of the alcohol or drugs on the defendant was’ the court were referring to the effect of the alcohol on his abnormality of mind and were making it clear that in deciding whether the defendant was suffering from an abnormality of mind within the meaning of the section and had impairment of mental responsibility arising from that abnormality, the alcohol was to be left out of account. This is clear because after the words I have set out the court continued ‘since abnormality of mind induced by alcohol or drugs is not, generally speaking, due to inherent causes and is not therefore within the section’. In other words (as is stated in an article by Mr GR Sullivan on ‘Intoxicants and Diminished Responsibility’ [1994] Crim LR 156 at 160) the defendant’s drinking is to be left out of account in so far as it exacerbated his abnormality of mind. But, of course, alcohol can have a disinhibiting effect and can lead to violence on the part of a person who does not suffer from an abnormality of mind within the meaning of s 2(1), and the jury can take this into account in deciding whether the defendant’s underlying mental abnormality did substantially impair his mental responsibility for the fatal acts, notwithstanding the drink he had taken. This point is well put in Simester and Sullivan Criminal Law: Theory and Doctrine (2000) pp 580, 581: . . . the taking of intoxicants should not disentitle D from successfully pleading diminished responsibility if the abnormality of mind caused by factors internal to [him] is sufficient, of itself, substantially to impair [his] responsibility . . . The drink does not supervene over his underlying subnormality. That underlying condition remains, and so does the question whether that condition substantially impaired his responsibility for the killing. . . . Therefore I would answer the first part of the certified question in the negative. As regards the second part of the question, without attempting to lay down a precise form of words as the judge’s directions are bound to depend to some extent on the facts of the case before him, I consider that the jury should be directed along the following lines: 200 HOMICIDE Assuming that the defence have established that the defendant was suffering from mental abnormality as described in s 2, the important question is: did that abnormality substantially impair his mental responsibility for his acts in doing the killing? You know that before he carried out the killing the defendant had had a lot to drink. Drink cannot be taken into account as something which contributed to his mental abnormality and to any impairment of mental responsibility arising from that abnormality. But you may take the view that both the defendant’s mental abnormality and drink played a part in impairing his mental responsibility for the killing and that he might not have killed if he had not taken drink. If you take that view, then the question for you to decide is this: has the defendant satisfied you that, despite the drink, his mental abnormality substantially impaired his mental responsibility for his fatal acts, or has he failed to satisfy you of that? If he has satisfied you of that, you will find him not guilty of murder but you may find him guilty of manslaughter. If he has not satisfied you of that, the defence of diminished responsibility is not available to him. 4.6.3.3 Diminished responsibility – law reform proposals The Law Commission’s Report (Law Com No 304) Murder, Manslaughter And Infanticide supports the retention of the partial defence of diminished responsibility but with refinements that would enable it to address issues of emotional immaturity more effectively, and a format that would provide the flexibility to accommodate future changes in diagnostic practice. THE DEFINITION OF DIMINISHED RESPONSIBILITY 5.109 There has been consistent criticism of the way in which diminished responsibility was defined in the 1957 Homicide Act . . . There are two principal problems. 5.110 First, the definition says nothing about what is involved in a ‘substantial impairment [of] mental responsibility’. The implication is that the effects of an abnormality of mind must significantly reduce the offender’s culpability. The Act neither makes this clear, nor says in what way the effects of an abnormality of mind can reduce culpability for an intentional killing, such that a manslaughter verdict is the right result. 5.111 Secondly, the definition has not been drafted with the needs and practices of medical experts in mind, even though their evidence is crucial to the legal viability of any claim of diminished responsibility. ‘Abnormality of mind’ is not a psychiatric term, so its meaning has had to be developed by the courts from case to case. Further, diagnostic practice in diminished responsibility cases has long since developed beyond identification of the narrow range of permissible ‘causes’ of an abnormality of mind stipulated in the bracketed part of the definition. In any event, the stipulated permissible causes have never had an agreed psychiatric meaning. The outmoded stipulation of permissible causes has become as much a hindrance as a help. As Dr Madelyn Hicks put it to us: [A]ttempting to specify the cause of mental disorders . . . is irrelevant [and] misleading, and in fact there are almost always multiple causes stemming from the interaction between 201 CASES AND MATERIALS ON CRIMINAL LAW genetic vulnerability and life events. [The CP, para 6.40. Dr Hicks is a Consultant Psychiatrist and Honorary Lecturer, Institute of Psychiatry, King’s College London.] 5.112 To address these problems, in our CP83 we provisionally proposed a new definition of diminished responsibility, developed from a definition adopted in the state of New South Wales in 1997. That definition received very broad support when we first proposed a version of it in 2004. Once again, it has had the support of a majority of consultees, but we have also had some helpful suggestions for improvement. In response to comments and analysis that we have received, we recommend adoption of the following definition: (a) a person who would otherwise be guilty of first degree murder is guilty of second degree murder if, at the time he or she played his or her part in the killing, his or her capacity to: (i) understand the nature of his or her conduct; or (ii) form a rational judgement; or (iii) control him or herself, was substantially impaired by an abnormality of mental functioning arising from a recognised medical condition, developmental immaturity in a defendant under the age of eighteen, or a combination of both; and (b) the abnormality, the developmental immaturity, or the combination of both provides an explanation for the defendant’s conduct in carrying out or taking part in the killing. 5.113 It is envisaged that this definition would improve the present law in the following ways. 5.114 First, the law will no longer be constrained by a fixed and out-of-date set of causes from which an abnormality of mental functioning (‘mental functioning’ is a term preferred by psychiatrists to ‘mind’) must stem. The issue will be whether the abnormality was brought about by a ‘recognised medical condition’ ... 5.116 In law it is sufficient that a condition is ‘more than trivial’. What matters is that it has the effect of substantially impairing D’s capacities. It follows that, alongside the familiar psychotic disorders that fall within the scope of the provisions, neurotic disorders, for example, may also do so. An example of the latter would be a post traumatic stress disorder suffered by a woman due to violent abuse suffered over many years. 5.117 Secondly, we believe the provisions make clearer the relationship between the role of the expert and the role of the jury. It is for the experts to offer an opinion on: (1) whether D was suffering from an abnormality of mental functioning stemming from a recognised medical condition; and (2) whether and in what way the abnormality had an impact on D’s capacities, as these are explained in the new provisions. 5.118 It is then for the jury to say whether, in the light of that (and all the other relevant) evidence they regard the relevant capacities of D to have been ‘substantially impaired’. ... 5.121 Thirdly, the new provisions seek to make clear what impact on capacity the effects of an abnormality of mental functioning must have, if the abnormality is to be the basis for a successful plea of diminished responsibility. It might be helpful to illustrate this by example, although it is not our case that on the actual facts given below the defence should necessarily succeed. 202 HOMICIDE (1) Substantially impaired capacity to ‘understand the nature of his or her conduct’: (a) a boy aged 10 who has been left to play very violent video games for hours on end for much of his life, loses his temper and kills another child when the child attempts to take a game from him. When interviewed, he shows no real understanding that, when a person is killed they cannot simply be later revived, as happens in the games he has been continually playing. (2) Substantially impaired capacity to ‘form a rational judgement’: (a) a woman suffering from post traumatic stress disorder, consequent upon violent abuse suffered at her husband’s hands, comes to believe that only burning her husband to death will rid the world of his sins; (b) a mentally sub-normal boy believes that he must follow his older brother’s instructions, even when they involve taking take part in a killing. He says, ‘I wouldn’t dream of disobeying my brother and he would never tell me to do something if it was really wrong’; (c) a depressed man who has been caring for many years for a terminally ill spouse, kills her, at her request. He says that he had found it progressively more difficult to stop her repeated requests dominating his thoughts to the exclusion of all else, so that ‘I felt I would never think straight again until I had given her what she wanted.’ (3) Substantially impaired capacity to ‘control him or herself’: (a) a man says that sometimes the devil takes control of him and implants in him a desire to kill, a desire that must be acted on before the devil will go away. 5.122 Fourthly, it has never been entirely clear whether, under the existing law, the abnormality of mind must, in some sense, ‘cause’ D to kill. The law simply states that the abnormality of mind must substantially impair D’s mental responsibility for his acts in doing or being a party to the killing. ... 5.124 The final choice of particular words is a matter for those drafting the legislation. However, we have framed the issue in these terms: the abnormality of mind, or developmental immaturity, or both, must be shown to be ‘an explanation’ for D’s conduct. This ensures that there is an appropriate connection (that is, one that grounds a case for mitigation of the offence) between the abnormality of mental functioning or developmental immaturity and the killing. It leaves open the possibility, however, that other causes or explanations (like provocation) may be admitted to have been at work, without prejudicing the case for mitigation. DEVELOPMENTAL IMMATURITY 5.125 We recommend that: It should be possible to bring in a verdict of diminished responsibility on the grounds of the developmental immaturity of an offender who was under 18 at the time he or she played his or her part in the killing. ... 5.128 A very important aspect of this recommendation is that evidence of developmental immaturity can be combined with evidence of an abnormality of mental functioning, to make a case for a verdict of second degree murder. As we explained in the CP, experts may find it impossible to distinguish between the impact on D’s mental functioning of developmental immaturity, and the impact on that functioning of a mental abnormality. To force experts – as the 203 CASES AND MATERIALS ON CRIMINAL LAW law currently does – to assess the impact of the latter, whilst disregarding the effect of the former, is wholly unrealistic and unfair. ... 5.130 It is important to recognise the nature and limits of what we are suggesting. In England and Wales, criminal liability for murder can be imposed on an offender if he or she was at least 10 years of age at the time of the offence. We are not suggesting that imposing liability for murder on a child of this age is always unfair or inappropriate. Some 10-year-old killers may be sufficiently advanced in their judgment and understanding that such a conviction would be fair. 5.131 What we are suggesting is that it is unrealistic and unfair to assume that all children aged 10 or over who kill must have had the kind of developed sense of judgement, control and understanding that makes a first degree murder conviction the right result (provided the fault element was satisfied). Instead, our recommendation is that it should be for the jury to decide in the individual case whether D had such a sense of judgement, control, or understanding. Moreover, it will be for D to prove that his or her capacity for judgement, control and understanding was substantially impaired by developmental immaturity. 5.132 D may wish to prove substantial impairment by developmental immaturity through appeal either to biological factors, or to social and environmental influences, or to a combination of both. For example, D may wish to give evidence that his or her power of control over his or her actions was substantially impaired by a biological factor such as poor frontal lobe development . . . 5.133 As this final sentence implies, however, in an individual case involving a child under 14 years of age, it would be open to the prosecution to seek to rebut evidence of poor frontal lobe development by arguing that this particular D had matured to a sufficient degree to be fairly convicted of first degree murder. The jury should be trusted to reject implausible claims, as they are with other defences based on expert evidence. 4.6.4 PROVOCATION Provocation has a long history as a common law defence to murder. As Lord Hoffmann observed in R v Smith (Morgan) [2000] 4 All ER 289: . . . although the doctrine has much earlier roots, it emerged in recognisably modern form in the late 17th and early 18th centuries. It comes from a world of Restoration gallantry in which gentlemen habitually carried lethal weapons, acted in accordance with a code of honour which required insult to be personally avenged by instant angry retaliation and in which the mandatory penalty for premeditated murder was death. To show anger ‘in hot blood’ for a proper reason by an appropriate response was not merely permissible but the badge of a man of honour. The human frailty to which the defence of provocation made allowance was the possibility that the man of honour might overreact and kill when a lesser retaliation would have been appropriate. Provided that he did not grossly overreact in the extent or manner of his retaliation, the offence would be manslaughter and execution avoided. 204 HOMICIDE The modern basis for the defence is to be found in R v Duffy [1949] 1 All ER 932 (Note), where Lord Goddard CJ quoted with approval the direction given to the jury by the trial judge Devlin J: ‘Provocation is some act, or series of acts, done by the dead man to the accused which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind . . .’. Parliament subsequently enacted s 3 of the Homicide Act 1957, but this simply clarifies certain aspects of the defence. It does not place it on a statutory basis. Section 3 of the Homicide Act 1957 provides: Where on a charge of murder there is evidence on which a jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his selfcontrol, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man. That there should be a defence of provocation at all has been questioned – not least because it may be seen as offering an excuse to abusive or excessively jealous and possessive men who kill their partners when relationships deteriorate. The development of the defence since 1957 has revealed a tension between those who believe that it should demand a degree of self-control from the defendant such as could be expected of the reasonable person, and those who believe that the defence should be couched in terms that reflect the characteristics of the defendant touching upon his ability to deal with the provocation that he encountered. This debate between what might loosely be termed the objectivist and subjectivist camps was referred to by Lord Hoffmann in R v Smith (Morgan), where he observed that: . . . it is impossible to read even a selection of the extensive modern literature on provocation without coming to the conclusion that the concept has serious logical and moral flaws. But your Lordships must take the law as it stands. Whatever your decision in this case, the result is not likely to be wholly satisfactory. The doctrine of provocation has always been described as a concession to human frailty and the law illustrates Kant’s dictum that, from the crooked timber of humanity, nothing completely straight can be made. 4.6.4.1 Determining whether or not the defence of provocation has been raised It is for the defendant to provide some evidence of provocation for the jury to act upon, but once this evidential burden is discharged, the legal burden rests upon the prosecution to prove, beyond all reasonable doubt, that the defendant was not acting under provocation at the time of the killing. 205 CASES AND MATERIALS ON CRIMINAL LAW R v Stewart [1995] 4 All ER 999 (CA) Stuart-Smith LJ: . . . It is now well established that even if the defence do not raise the issue of provocation, and even if they would prefer not to because it is inconsistent with and will detract from the primary defence, the judge must leave the issue for the jury to decide if there is evidence which suggests that the accused may have been provoked; and this is so even if the evidence of provocation is slight or tenuous in the sense that the measure of the provocative acts or words is slight: see R v Rossiter [1994] 2 All ER 752 and R v Cambridge [1994] 2 All ER 760, [1994] 1 WLR 971 . . . In our judgment, where the judge must, as a matter of law, leave the issue of provocation to the jury, he should indicate to them, unless it is obvious, what evidence might support the conclusion that the appellant lost his self-control . . . R v Acott [1997] 1 All ER 706 (HL) Lord Steyn: . . . The Court of Appeal (Criminal Division) certified that there was a point of law of general public importance involved in the decision to dismiss the appeal, namely: In a prosecution for murder, before the judge is obliged to leave the issue of provocation to the jury, must there be some evidence, either direct or inferential, as to what was either done or said to provoke the alleged loss of self-control? . . . . . . Strictly, the certified question need not be answered in order to dispose of the appeal. But it seems possible to summarise the legal position in terms which might be helpful. Section 3 is only applicable ‘if there is evidence . . . that the person charged was provoked (whether by things done or things said or by both together) to lose his self-control’. A loss of self-control caused by fear, panic, sheer bad temper or circumstances (eg a slow down of traffic due to snow) would not be enough. There must be some evidence tending to show that the killing might have been an uncontrolled reaction to provoking conduct rather than an act of revenge. Moreover, although there is no longer a rule of proportionality as between provocation and retaliation, the concept of proportionality is nevertheless still an important factual element in the objective inquiry. It necessarily requires of the jury an assessment of the seriousness of the provocation. It follows that there can only be an issue of provocation to be considered by the jury if the judge considers that there is some evidence of a specific act or words of provocation resulting in a loss of self-control. It does not matter from what source that evidence emerges or whether it is relied on at trial by the defendant or not. If there is such evidence, the judge must leave the issue to the jury. If there is no such evidence, but merely the speculative possibility that there had been an act of provocation, it is wrong for the judge to direct the jury to consider provocation. In such a case there is simply no triable issue of provocation . . . Counsel for the appellant invited your Lordships to go further and state what would be sufficient evidence of provocation to justify a trial judge in leaving the issue of provocation for the jury to consider. The invitation was attractively put. But it must be rejected. What is sufficient in this particular context is not a question of law. Where the line is to be drawn depends on a judgment involving logic and common sense, the assessment of matters of degree and an intense focus on the circumstances of a particular case. It is unwise to generalise on such matters: it is a subject 206 HOMICIDE best left to the good sense of trial judges. For the same reason it is not useful to compare the facts of decided cases on provocation with one another. For my part the certified question can be answered in the general way in which I have indicated. But the reasoning in this judgment is subject to the overriding principle that the legal burden rests on the Crown to disprove provocation on a charge of murder to the required standard of proof. In Lee Chun-Chuen v R [1963] AC 220 at 229 Lord Devlin summed up the legal position as follows: It is not of course for the defence to make out a prima facie case of provocation. It is for the prosecution to prove that the killing was unprovoked. All that the defence need do is to point to material which could induce a reasonable doubt. That remains the position. I would dismiss the appeal. 4.6.4.2 The ‘subjective’ stage: was there ‘cooling time’ between the provocation and the killing? R v Ibrams and Gregory (1981) 74 Cr App R 154 Ibrams was sharing a flat with his fiancée, Laura Adronik. An ex-boyfriend of Laura’s, John Monk, was released from borstal and regularly visited the flat to bully and terrorise Ibrams and Adronik. On some occasions Gregory was also at the flat. On Sunday 7 October 1979 the police were contacted twice but did nothing. As it seemed that the police were not going to protect them, Ibrams, Adronik and Gregory felt that they had to protect themselves. On Wednesday 10 October they met together and drew up a plan for dealing with Monk. In essence, the plan was that they would get Monk drunk and he would be encouraged to go to bed with Adronik. Ibrams and Gregory would then enter the flat and attack Monk whilst he was in bed. This plan was carried out on Friday 12 October. The injuries inflicted by Ibrams and Gregory were so serious that Monk died of his injuries. The trial judge, McNeill J, held that there was no evidence of provocation for the jury to consider. The Court of Appeal upheld this decision on the basis that the final incident of provocation had taken place several days before the attack on the deceased and that the attack had been planned in advance; accordingly, there was no evidence of the sudden and temporary loss of self-control necessary to establish provocation. Lawton LJ: . . . [His Lordship referred to the speech of Lord Diplock in DPP v Camplin [1978] AC 705 where Lord Diplock sets out the history of the law relating to provocation.] That history shows that, in the past at any rate, provocation and loss of self-control tended to be regarded by the courts as taking place with a very short interval of time between the provocation and the loss of self-control . . . In our judgment, Lord Diplock clearly thought that the loss of self-control must occur at or about the time of the act of provocation . . . 207 CASES AND MATERIALS ON CRIMINAL LAW His Lordship then cited with approval part of the direction of Devlin J in R v Duffy [1949] 1 All ER 932: Indeed, circumstances which induce a desire for revenge are inconsistent with provocation, since the conscious formulation of a desire for revenge means that a person has had time to think, to reflect, and that would negative a sudden temporary loss of self-control, which is of the essence of provocation . . . . . . [The appellants] were masters of their minds when carrying [their plan] out, because they worked out the details with considerable skill; and in pursuing the plan as they did on the Friday night they were still masters of their own minds. They were doing what they had planned to do . . . It follows . . . that McNeill J was right in ruling that there was no evidence of loss of self-control . . . R v Ahluwalia [1992] 4 All ER 889 (CA) The appellant, an Asian woman, entered into an arranged marriage with the deceased. She had to endure several years of violence and abuse. Her husband regularly assaulted her; he had threatened to kill her; he taunted her with the fact that he was having an affair with another woman. During the evening of 8 May 1989 her husband threatened to beat her up and threatened to burn her face with an iron. That night, the appellant poured some petrol, which she had previously purchased, into a bucket (to make it easier to throw); she lit a candle on the gas cooker and carried the bucket and the candle upstairs, taking an oven glove for selfprotection, and a stick. She went into her husband’s bedroom, threw in some petrol, lit the stick with the candle and threw it into the room. Her husband suffered severe burns from which he died a few days later. Lord Taylor CJ: . . . Section 3 of the Homicide Act 1957 did not provide a general or fresh definition of provocation which remains a common law not a statutory defence. The changes effected by the 1957 Act are conveniently summarised in Smith and Hogan, Criminal Law, 6th edn, 1988: (1) It made it clear that ‘things said’ alone may be sufficient provocation, if the jury should be of the opinion that they would have provoked a reasonable man . . . (2) It took away the power of the judge to withdraw the defence from the jury on the ground that there was no evidence on which the jury could find that a reasonable man would have been provoked to do as the defendant did . . . (3) It took away the power of the judge to dictate to the jury what were the characteristics of the reasonable man . . . The phrase ‘sudden and temporary loss of self-control’ encapsulates an essential ingredient of the defence of provocation in a clear and readily understandable phrase. It serves to underline that the defence is concerned with the actions of an individual who is not, at the moment when he or she acts violently, master of his or her own mind . . . . . . [I]t is open to the judge, when deciding whether there is any evidence of provocation to be left to the jury and open to the jury when considering such evidence, to take account of the 208 HOMICIDE interval between the provocative conduct and the reaction of the defendant to it. Time for reflection may show that after the provocative conduct made its impact on the mind of the defendant, he or she kept or regained self-control. The passage of time following the provocation may also show that the subsequent attack was planned or based on motives such as revenge or punishment, inconsistent with the loss of self-control and therefore with the defence of provocation. In some cases, such an interval may wholly undermine the defence of provocation; that, however, depends entirely on the facts of the individual case and is not a principle of law. [Counsel for the appellant] referred to the phrase ‘cooling-off period’ which has sometimes been applied to an interval of time between the provocation relied upon and the fatal act. He suggests that although in many cases such an interval may indeed be a time for cooling and regaining self-control so as to forfeit the protection of the defence, in others the time lapse has an opposite effect. He submits, relying on expert evidence not before the trial judge, that women who have been subjected frequently over a period to violent treatment may react to the final act or words by what he calls a ‘slow-burn’ reaction rather than by an immediate loss of self-control. We accept that the subjective element in the defence of provocation would not as a matter of law be negatived simply because of the delayed reaction in such cases, provided that there was at the time of the killing a ‘sudden and temporary loss of self-control’ caused by the alleged provocation. However, the longer the delay and the stronger the evidence of deliberation on the part of the defendant, the more likely it will be that the prosecution will negative provocation . . . R v Baillie [1995] 2 Cr App R 31 The appellant’s sons were threatened by a drug dealer called Robert McCubbin. On hearing of this the appellant, who had been drinking, set off in a rage to attack McCubbin. Having retrieved a sawn-off shotgun from the attic of his house, and having armed himself with a cutthroat razor, the appellant drove to McCubbin’s house (stopping en route to fill up with petrol). The appellant confronted McCubbin at his house, attacking him with the razor. McCubbin fled out of the back of the house, and the appellant pursued him, firing the shotgun twice after him. McCubbin died as a result. The appellant invited the Court of Appeal to consider the trial judge’s refusal to leave the defence of provocation before the jury on the ground that there had been a gap in time between the provocation and the killing. Henry LJ: Lady Mallalieu [counsel for the appellant] points to the scheme of section 3 [of the Homicide Act 1957], under which the jury is the sole arbiter of the make-up of the reasonable man, and what would or would not have provoked him. She accepts, as she must, that on the wording of the section, provocation only comes into the picture where there is evidence fit for consideration by the jury that the defendant was, or might have been, suffering from a sudden and temporary loss of self-control at the time he did the fatal act. Here the judge ruled that there was no such evidence, and the question is whether she was right to do so. The question is necessarily one of a value judgment, a matter of degree. The judge clearly expressed the view that in her judgment (our emphasis) this was not a case of provocation because any sudden or temporary loss of self-control must have ceased by the time of the 209 CASES AND MATERIALS ON CRIMINAL LAW fatal act. She so expresses it in the terms of her judgment: ‘I am not persuaded . . .’, ‘in my judgment . . .’, ‘that seems to me to be . . .’ It seems to us that that approach is too austere an approach for the purposes of section 3. Having regard to the clear intention of Parliament to move the test of provocation from the judge’s province to that of the jury (while reserving to the judge a screening process), the provisions of that section must be construed paying proper and sensible regard to human frailty in answering the essential jury question. . . . We are dealing with threats to sons in their middle to late teens. We are dealing with threats by one who is supplying them with narcotics which may lead to the ruin of their lives quite independently of whether the actual physical threats are carried out or not. We are dealing with a father who, though no stranger to drink, behaved on this evening in a way apparently quite inconsistent with anything that he had done before. We are dealing with a case in which (depending on your view of the petrol stop) there was arguably no ‘natural break’ between the conversation with his son which caused him to go up to the attic to find the shotgun hidden there, and the shooting itself. Now, there are many and obvious difficulties in such a defence succeeding, but Lady Mallalieu has referred us to cases where the matter has been left to juries (and the defence has succeeded) even though there are the same qualities of the desire for revenge, as great a lapse of time, as much planning and as many of the features as point against a sudden and temporary loss of control. In our judgment, this is a matter which should have been left to the jury as being fit for their consideration. We say this while recognising that there are formidable, perhaps insuperable, obstacles in the jury arriving at a verdict of manslaughter because of provocation. COMMENTS AND QUESTIONS 1 Anything can be provocation – even the crying of a baby; see R v Doughty (1986) 83 Cr App R 319. The issue is whether the defendant’s response to the provocation was reasonable. The more trivial the provocation, however, the less likely the jury are to believe that D actually was provoked at the time of the killing. 2 The defence of provocation is available to both the principal offender who is charged with murder, and an accomplice; see R v Marks [1998] Crim LR 676, although it seems likely that there would be considerable evidential difficulties in actually making out the defence. 3 If a jury is invited to consider only the incident that provokes the defendant and sparks the killing, its verdict might be based on too narrow a basis. Often words or deeds are provoking because they are the culmination of some long running dispute between the parties, or reflect the stage in an abusive relationship where the defendant could no longer cope. The Court of Appeal, as the following extracts indicate, has accepted that in such cases a jury ought to be directed to look at the relationship between the parties in context; see R v Humphreys [1995] 4 All ER 889. 4 A defendant may rely on the defence of provocation even if he or she has been partly responsible for bringing that provocation about. In R v Johnson [1989] 1 WLR 740, Watkins LJ observed: ‘. . . we find it impossible to accept that the mere fact that a defendant caused a reaction in others, which in turn led him to lose his self-control, should result in the issue of 210 HOMICIDE provocation being kept outside a jury’s consideration. Section 3 [of the Homicide Act 1957] clearly provides that the question is whether things done or said or both provoked the defendant to lose his self-control. 4.6.4.3 The objective stage: what degree of self-control is to be expected from the defendant? Assuming there is evidence of provocation to put before a jury, and assuming that there are no issues related to ‘cooling time’, how is the objective part of the test for provocation to be applied? As the extracts from DPP v Camplin (below) indicate – to apply a reasonable adult test without qualification to a juvenile defendant would result in unfairness, if not absurdity – hence the reasonable person may be imbued with the age of the accused. But what other characteristics are relevant? Gender? Ethnicity? Disability? It was also recognised by the House of Lords in DPP v Camplin that some characteristics of the accused would have to be taken into account to explain why the provocation produced such a violent reaction on the part of the accused – for example if D were impotent and he was taunted about this. It was assumed, however, that such characteristics would have no bearing on the measure used to assess whether or not the accused had displayed the degree of self-control to be expected of the reasonable person. DPP v Camplin [1978] AC 705 (HL) Camplin, who was 15 years of age at the time, killed a man named Khan by splitting his skull with a chapati pan. Khan had raped Camplin and then taunted Camplin about the incident. Camplin relied upon the defence of provocation but was convicted of murder. The point of law of general public importance involved in the case has been certified as being: Whether on the prosecution for murder of a boy of 15, where the issue of provocation arises, the jury should be directed to consider the question under s 3 of the Homicide Act 1957 whether the provocation was enough to make a reasonable man do as he did by reference to a ‘reasonable adult’ or by reference to a ‘reasonable boy of 15’. Lord Diplock: . . . [F]or the purposes of the law of provocation the ‘reasonable man’ has never been confined to the adult male. It means an ordinary person of either sex, not exceptionally excitable or pugnacious, but possessed of such powers of self-control as everyone is entitled to expect that his fellow citizens will exercise in society as it is today . . . [N]ow that the law has been changed so as to permit of words being treated as provocation even though unaccompanied by any other acts, the gravity of verbal provocation may well depend upon the particular characteristics or circumstances of the person to whom a taunt or insult is addressed. To taunt a person because of his race, his physical infirmities or some shameful incident in his past may well be considered by the jury to be more offensive to the person addressed, however equable his temperament, if the facts on which the taunt is founded are true than it would be if they were not . . . In my opinion a proper direction to a jury on the question left to their exclusive determination by s 3 of the Act of 1957 would be on the following lines. The judge should state what the question is 211 CASES AND MATERIALS ON CRIMINAL LAW using the very terms of the section. He should then explain to them that the reasonable man referred to in the question is a person having the power of self-control to be expected of an ordinary person of the sex and age of the accused, but in other respects sharing such of the accused’s characteristics as they think would affect the gravity of the provocation to him; and that the question is not merely whether such a person would in like circumstances be provoked to lose his self-control but also whether he would react to the provocation as the accused did . . . Lord Simon of Glaisdale: . . . In my judgment the reference to ‘a reasonable man’ at the end of [s 3 of the Homicide Act 1957] means ‘a man of ordinary self-control’. If this is so the meaning satisfies what I have ventured to suggest as the reason for importing into this branch of the law the concept of the reasonable man – namely to avoid the injustice of a man being entitled to rely on his exceptional excitability or pugnacity or ill-temper or on his drunkenness . . . I think that the standard of self-control which the law requires before provocation is held to reduce murder to manslaughter is still that of the reasonable person (hence his invocation in s 3); but that, in determining whether a person of reasonable self-control would lose it in the circumstances, the entire factual situation, which includes the characteristics of the accused, must be considered . . . 4.6.4.4 The Camplin approach doubted The decision in DPP v Camplin gave rise to a succession of cases in which the Court of Appeal adopted the view that personal characteristics other than just age and gender could be attributed to the reasonable person for the purposes of assessing whether or not the defendant had displayed the expected degree of self-control. Hence in R v Dryden [1995] 4 All ER 987, the court accepted that the defendant’s obsession with his property and his eccentric character should have been left to the jury for consideration as part of the objective test. Similarly in R v Newell (1980) 71 Cr App R 331, R v Raven [1982] Crim LR 51 (22-year-old with a mental age of 9 judged by the standard of a reasonable 22-year-old with a mental age of 9), and R v Ahluwalia [1992] 4 All ER 889. The Privy Council in Luc Thiet Thuan v R [1997] AC 131, expressed the contrary view, holding that the actual characteristics of the accused were relevant only to the gravity of the provocation. Only age and sex were to be attributed to the reasonable person for the purpose of expressing the standard of self-control to be expected. The House of Lords in R v Smith (Morgan) [2000] 4 All ER 289 endorsed the Court of Appeal’s thinking on this issue, effectively abandoning the Camplin approach in favour of a test that asked juries to consider (assuming there was evidence of provocation) whether the defendant had exercised (what was for him) reasonable self-control. In assessing the extent to which the defendant had acted reasonably the jury would be entitled to take into account all relevant characteristics of the defendant. In Morgan Smith’s case, for example, this included evidence that he suffered from depression. Whilst the change in the law represented by Morgan Smith was welcomed in some quarters on the basis that it was not fair to expect a defendant to display more self-control than could be reasonably expected of him, uncertainties arose concerning those characteristics that were relevant for the purposes of the Morgan Smith approach and those that were not. For example, in R v Weller 212 HOMICIDE [2004] 1 Cr App R 1, the Court of Appeal suggested it would be wrong to tell a jury to ignore characteristics such as male possessiveness and jealousy. In R v Rowland [2003] EWCA Crim 3636, Potter LJ (reviewing the effect of these decisions) went so far as to conclude: . . . it seems clear that, in the context of the law of provocation, the reasonable man is now to be regarded as an archetype best left lurking in the statutory undergrowth, lest his emergence should lead the jury down a false trail of reasoning en route to their verdict. That is not to say that reference to the reasonable man is proscribed; that could scarcely be so in the light of the wording of the statute. However, since the invocation of the reasonable man was traditionally employed by judges in summing-up in connection with characteristics with which he would not normally be expected to be endowed, his utility is diminished once it is clear that the application of the objective test is to be regarded exclusively as a matter for the jury . . . 4.6.4.5 Camplin restored As will be seen from the extracts that follow, the issue of how a jury should be directed on the objective stage of the test for provocation has been revisited by the Privy Council in AG v Holley with the effect that the DPP v Camplin approach has effectively been resurrected – the defendant’s characteristics can be taken into account to explain the gravity of the provocation, but in assessing whether or not he exercised reasonable self-control, only age and gender are to be taken into account. Attorney General for Jersey v Holley (Jersey) [2005] UKPC 23 Holley was a chronic alcoholic convicted of murdering his longstanding girl friend with an axe while under the influence of alcohol. On appeal the Court of Appeal of Jersey set aside the conviction of murder and substituted a conviction for manslaughter, on the ground that the Deputy Bailiff had misdirected the jury on the issue of provocation. The Attorney General for Jersey appealed to the Privy Council. The issue for the Privy Council was whether the law relating to provocation as stated by the House of Lords in R v Morgan Smith was to be preferred to the more objective approach suggested in DPP v Camplin. The majority judgment delivered by Lord Nicholls of Birkenhead, held that R v Morgan Smith was not to be followed. Per Lord Nicholls of Birkenhead: 8. . . . In the leading case of R v Camplin [1978] AC 705, 717, Lord Diplock gave a much quoted explanation of the meaning of the phrase ‘reasonable man’ for the purposes of the law of provocation: It means an ordinary person of either sex, not exceptionally excitable or pugnacious, but possessed of such powers of self-control as everyone is entitled to expect that his fellow citizens will exercise in society as it is today. 213 CASES AND MATERIALS ON CRIMINAL LAW Lord Simon of Glaisdale said the same, at page 726. The reference to ‘a reasonable man’ at the end of section 3, he said, means ‘a man of ordinary self-control’. Similarly in R v Morhall [1996] AC 90, 98, Lord Goff of Chieveley commented that, despite the express words of the statute, to speak of the degree of self-control attributable to the ordinary person is ‘certainly less likely to mislead’ than to do so with reference to the reasonable person. 9. An external standard of this character, whether expressed in terms of reasonableness or a reasonable man or an ordinary person, has long been an essential element of the defence . . . 10. Before 1957 loss of self-control had to be brought about by things done. Words would not suffice to constitute provocation. Section 3 extended the scope of the defence by providing that in future loss of self-control could be provoked either by things done or by things said or by both together. This extension had an effect on what evidence was relevant, and therefore admissible, on the issue of the gravity of the provocation, that is, the first element in the objective ingredient. As explained by Lord Diplock in the case of Camplin, at page 717, when words alone could not amount to provocation the gravity of provocation depended primarily on degrees of violence. Once words could amount to provocation, the gravity of provocation could depend upon ‘the particular characteristics or circumstances of the person to whom a taunt or insult is addressed’. Lord Diplock expressed his view, at page 718, on what would be a proper direction to a jury on the question left to their determination by section 3: He should . . . explain to them that the reasonable man referred to in the question is a person having the power of self-control to be expected of an ordinary person of the sex and age of the accused, but in other respects sharing such of the accused’s characteristics as they think would affect the gravity of the provocation to him; and that the question is not merely whether such a person would in like circumstances be provoked to lose his self-control but also whether he would react to the provocation as the accused did . . . 11. Hence if a homosexual man is taunted for his homosexuality it is for the jury to consider whether a homosexual man having ordinary powers of self-control might, in comparable circumstances, be provoked to lose his self-control and react to the provocation as the defendant did. Authority for this proposition, if needed, is the ‘glue-sniffer’ case of R v Morhall [1996] AC 90. There the deceased nagged the defendant about his addiction to glue-sniffing. The problem before the House of Lords was whether this addiction should have been taken into account at the defendant’s trial as affecting the gravity of the provocation: see page 97D. Lord Goff of Chieveley, with whose speech all members of the House agreed, said it should. The thrust of his reasoning was that, for this purpose, ‘the entire factual situation’ was to be taken into account. This includes matters not falling strictly within the description ‘characteristics’. It also includes matters which are discreditable to the defendant. Lord Goff said, at page 99: suppose that a man who has been in prison for a sexual offence, for example rape, has after his release been taunted by another man with reference to that offence. It is difficult to see why, on ordinary principles, his characteristic or history as an offender of that kind should not be taken into account as going to the gravity of the provocation. 12. Of course, assessing the conduct of a glue-sniffing defendant against the standard of a glue-sniffing man having ordinary powers of self-control may mean the defendant is assessed against a standard of self-control he cannot attain. He may be exceptionally excitable or 214 HOMICIDE pugnacious. But this is so with every defendant who seeks to rely upon provocation as a defence. The objective standard of self-control is the standard set by the common law and, since 1957, by the statutory reference to a ‘reasonable man’. It is of general application. Inherent in the use of this prescribed standard as a uniform standard applicable to all defendants is the possibility that an individual defendant may be temperamentally unable to achieve this standard. 13. Taking into account the age and sex of a defendant, as mentioned in Camplin, is not an exception to this uniform approach. The powers of self-control possessed by ordinary people vary according to their age and, more doubtfully, their sex. These features are to be contrasted with abnormalities, that is, features not found in a person having ordinary powers of self-control. The former are relevant when identifying and applying the objective standard of self-control, the latter are not. 14. That Lord Diplock intended to draw this distinction in Camplin is plain from the terms of his suggested direction to a jury, quoted above. The statutory reasonable man has the power of selfcontrol to be expected of an ordinary person of like sex and age. In other respects, that is, in respects other than power of self-control, the reasonable man shares such of the defendant’s characteristics as the jury think would affect the gravity of the provocation to the defendant. This direction, approved by the other members of the House, was clearly intended to be a model direction, of general application in cases of provocation. Persons of diminished responsibility 15. Before proceeding further it is important to pause and note that when adopting the ‘reasonable man’ standard in section 3 of the Homicide Act 1957 Parliament recognised that, standing alone, this provision might work harshly on defendants suffering from mental abnormality. Accordingly, cheek by jowl with section 3 Parliament introduced into English law the partial defence of diminished responsibility. In short, under section 2 a person is not to be convicted of murder if he shows he was suffering from such abnormality of mind, whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury, as ‘substantially impaired’ his mental responsibility for his acts and omissions in killing or being a party to the killing. In such a case the defendant is liable to be convicted of manslaughter. The burden of proof rests on the defendant who seeks to rely on this defence. 16. This provision, which is reproduced in article 3 of the Jersey law, is apt to embrace some cases where it is inappropriate to apply to the defendant the standard of self-control of an ordinary person. Section 3, with its objective standard, is to be read with this in mind. The statutory provision regarding diminished responsibility in section 2 represents the legislature’s view on how cases of mental abnormality are to be accommodated in the law of homicide. R v Raven [1982] Crim LR 51 appears to be an instance of a case where this defence would have been relevant. There a 22-year-old defendant had a mental age of 9 years. Similarly in R v Ahluwalia [1992] 4 All ER 889, where a defence of provocation failed, the Court of Appeal ordered a retrial on the issue of diminished responsibility. Section 2 should not be distorted to accommodate the types of case for which section 3 was specifically enacted. The two views 17. Against this background their Lordships turn to consider the point where the substantial difference in judicial views has emerged. Exceptional excitability or pugnacity is one thing. But 215 CASES AND MATERIALS ON CRIMINAL LAW what if the defendant is suffering from serious mental abnormality, as in the Morgan Smith case where the defendant suffered from severe clinical depression? Is he, for the purposes of the defence of provocation, to be judged by the standard of a person having ordinary powers of selfcontrol? 18. The view of the minority in the case of Morgan Smith is that he is. The standard is a constant, objective standard in all cases. The jury should assess the gravity of the provocation to the defendant. In that respect, as when considering the subjective ingredient of provocation (did the defendant lose his self-control?), the jury must take the defendant as they find him, ‘warts and all’, as Lord Millett observed. But having assessed the gravity of the provocation to the defendant, the standard of self-control by which his conduct is to be evaluated for the purpose of the defence of provocation is the external standard of a person having and exercising ordinary powers of selfcontrol. That is the standard the jury should apply when considering whether or not the provocation should be regarded as sufficient to bring about the defendant’s response to it: see Lord Millett, at page 211. 19. This view accords with the approach applied by their Lordships’ Board in Luc Thiet Thuan v The Queen [1997] AC 131, an appeal from Hong Kong. On a trial for murder the defendant relied on the defences of diminished responsibility and provocation. Medical evidence showed the defendant suffered from brain damage and was prone to respond to minor provocation by losing his self-control and acting explosively. The trial judge directed the jury that this medical evidence was not relevant on the defence of provocation. The jury rejected both defences. The correctness of the judge’s direction on provocation was the issue on the appeal. The Board, Lord Steyn dissenting, upheld the judge’s direction. Lord Goff of Chieveley noted that mental infirmity of the defendant, if itself the subject of taunts by the deceased, may be taken into account as going to the gravity of the provocation. He continued, at page 146: But this is a far cry from the defendant’s submission that the mental infirmity of a defendant impairing his power of self-control should as such be attributed to the reasonable man for the purposes of the objective test. 20. The majority view expressed in Morgan Smith rejects this approach. According to this view, the standard of self-control required by the common law and by the statute is not the constant standard of a person having and exercising ordinary self-control. The required standard is more flexible. The jury should apply the standard of control to be expected of the particular individual. The jury must ask themselves whether the defendant ‘exercised the degree of self-control to be expected of someone in his situation’ (emphasis added): see Lord Slynn of Hadley, at page 155. Lord Hoffmann expressed the view, at page 163, that the effect of the change in the law made by section 3 of the Homicide Act was that in future the jury ‘were to determine not merely whether the behaviour of the accused complied with some legal standard but could determine for themselves what the standard in the particular case should be’. Lord Hoffmann continued, at page 173: The law expects people to exercise control over their emotions. A tendency to violent rages or childish tantrums is a defect in character rather than an excuse. The jury must think that the circumstances were such as to make the loss of self-control sufficiently excusable to reduce the gravity of the offence from murder to manslaughter. This is entirely a question for the jury. In deciding what should count as a sufficient excuse, they have to apply what they consider to be appropriate standards of behaviour; on the one hand 216 HOMICIDE making allowance for human nature and the power of the emotions but, on the other hand, not allowing someone to rely upon his own violent disposition. 21. Lord Clyde, at page 179, expressed the expected standard of self-control in these terms: the standard of reasonableness in this context should refer to a person exercising the ordinary power of self-control over his passions which someone in his position is able to exercise and is expected by society to exercise. By position I mean to include all the characteristics which the particular individual possesses and which may in the circumstances bear on his power of control other than those influences which have been selfinduced (emphasis added). 22. This majority view, if their Lordships may respectfully say so, is one model which could be adopted in framing a law relating to provocation. But their Lordships consider there is one compelling, overriding reason why this view cannot be regarded as an accurate statement of English law. It is this. The law of homicide is a highly sensitive and highly controversial area of the criminal law. In 1957 Parliament altered the common law relating to provocation and declared what the law on this subject should thenceforth be. In these circumstances it is not open to judges now to change (‘develop’) the common law and thereby depart from the law as declared by Parliament. However much the contrary is asserted, the majority view does represent a departure from the law as declared in section 3 of the Homicide Act 1957. It involves a significant relaxation of the uniform, objective standard adopted by Parliament. Under the statute the sufficiency of the provocation (‘whether the provocation was enough to make a reasonable man do as [the defendant] did’) is to be judged by one standard, not a standard which varies from defendant to defendant. Whether the provocative act or words and the defendant’s response met the ‘ordinary person’ standard prescribed by the statute is the question the jury must consider, not the altogether looser question of whether, having regard to all the circumstances, the jury consider the loss of self-control was sufficiently excusable. The statute does not leave each jury free to set whatever standard they consider appropriate in the circumstances by which to judge whether the defendant’s conduct is ‘excusable’. 23. On this short ground their Lordships, respectfully but firmly, consider the majority view expressed in the Morgan Smith case is erroneous. Points arising 24. Their Lordships mention some ancillary points. The first is relevant to the facts in the present case. It concerns application of the principles discussed above in circumstances where the defendant acted under the influence of alcohol or drugs and, therefore, at a time when his level of self-control may have been reduced. If the defendant was taunted on account of his intoxication, that may be a relevant matter for the jury to take into account when assessing the gravity of the taunt to the defendant. But the defendant’s intoxicated state is not a matter to be taken into account by the jury when considering whether the defendant exercised ordinary self-control. The position is the same, so far as provocation is concerned, if the defendant’s addiction to alcohol has reached the stage that he is suffering from the disease of alcoholism. 25. The second point their Lordships wish to mention concerns the three examples given by Lord Steyn in his dissenting opinion in Luc Thiet Thuan v The Queen [1997] AC 131, 149. Lord Steyn instanced cases of women who are more prone to lose their self-control because they are suffering from postnatal depression, or ‘battered woman syndrome’, or a personality disorder. Lord 217 CASES AND MATERIALS ON CRIMINAL LAW Steyn suggested that, on the majority view of the law expressed in that case, in those three instances the judge would have to direct the jury that on the defence of provocation the evidence of the woman’s condition was admissible on the ‘first and subjective inquiry’ but not on the ‘second and objective inquiry’. Their Lordships respectfully differ. This is not wholly correct. As explained above, the evidence of the woman’s condition may be relevant on two issues: whether she lost her self-control, and the gravity of the provocation for her. The jury will then decide whether in their opinion, having regard to the actual provocation and their view of its gravity for the defendant, a woman of her age having ordinary power of self-control might have done what the defendant did. More importantly, in each of these three cases the defendant will in principle have available to her the defence of diminished responsibility. The potential availability of this defence in these cases underlines the importance of not viewing the defence of provocation in isolation from the defence of diminished responsibility. These two defences must be read together to obtain an overall, balanced view of the law in this field. 26. Next, in recent years much play has been made of the ‘mental gymnastics’ required of jurors in having regard to a defendant’s ‘characteristics’ for one purpose of the law of provocation but not another. Their Lordships consider that any difficulties in this regard have been exaggerated. The question is largely one of presentation. It will be noted that their Lordships have eschewed use of the expression ‘characteristics’, accompanied as that expression now is with much confusing baggage. The better approach is summarised by Lord Hobhouse of Woodborough in the Morgan Smith case at page 205C-H. 27. The final point is this. In expressing their conclusion above their Lordships are not to be taken as accepting that the present state of the law is satisfactory. It is not. The widely held view is that the law relating to provocation is flawed to an extent beyond reform by the courts: see the Law Commission Report Partial Defences to Murder (Law Com No 290) (2004 Cm 6301), para 2.10. Their Lordships share this view. But the law on provocation cannot be reformulated in isolation from a review of the law of homicide as a whole. In October 2004 the Home Secretary announced the government’s intention to review the law of murder. Given the importance of this area of the criminal law it is imperative that a review, of all aspects of the law of murder, should be undertaken as soon as possible. Note that Lords Bingham, Hoffmann and Carswell delivered dissenting judgments COMMENTS AND QUESTIONS 1 218 AG for Jersey v Holley was followed by the Court of Appeal in R v Mohammed [2005] EWCA 1880, and R v James: R v Karimi [2006] EWCA 14. In the latter case Lord Phillips acknowledged that normally the Court of Appeal would have regarded itself as bound by a decision of the House of Lords (i.e. R v Morgan Smith) rather than the Privy Council (i.e. AG for Jersey v Holley). Looked at pragmatically, bearing in mind that the majority in Holley had represented half of the Appellate Committee of the House of Lords, it was likely that any appeal to the House of Lords would result in the approach in Holley being endorsed. The Court of Appeal refused permission to appeal to the House of Lords, but certified that points of law of general public importance were involved in the decision, namely (i) whether an opinion of the Judicial Board of the Privy Council could take precedence over an existing opinion of the Judicial HOMICIDE Committee of the House of Lords, and if so, in what circumstances; and (ii) whether the majority opinion in Holley was to be preferred to the majority decision in Morgan Smith. See further R v Grigson [2006] All ER (D) 99. 4.6.4.6 Reforming the defence of provocation The Law Commission’s Report (Law Com No 304) Murder, Manslaughter And Infanticide described the partial defence of provocation as a ‘confusing mixture of judge-made law and legislative provision’ plagued by uncertainties regarding its scope that the courts appeared to be unable to resolve. Against this backdrop the Report proposes a return to the ‘Camplin’ approach to provocation, but with refinements relating to the role of the judge in leaving the defence to the jury, the availability of the defence where the provocation is incited by the defendant, and the extension of the defence to situations where the defendant overreacts to a fear of serious violence. If put into effect, these reforms would recreate a clear distinction between the defences of provocation and diminished responsibility, as originally intended by Parliament in enacting the Homicide Act 1957. THE SUBSTANCE OF THE DEFENCE 5.11 In our review of the defence of provocation in 2004, we concluded that the circumstances in which it should in future be available ought to be changed [see Partial Defences to Murder (2004) Law Com No 290] . . . Our conclusions were reached after widespread and detailed consultation. We see no compelling reason to depart from them in substance, although we will indicate below where our conclusions remain controversial and, therefore, where there is an issue that could profitably be taken further in the next stage of the review. We are recommending that the defence be reformed as follows: (1) Unlawful homicide that would otherwise be first degree murder should instead be second degree murder if: (a) the defendant acted in response to: (i) gross provocation (meaning words or conduct or a combination of words and conduct) which caused the defendant to have a justifiable sense of being seriously wronged; or (ii) fear of serious violence towards the defendant or another; or (iii) a combination of both (i) and (ii); and (b) a person of the defendant’s age and of ordinary temperament, i.e. ordinary tolerance and self-restraint, in the circumstances of the defendant might have reacted in the same or in a similar way. (2) In deciding whether a person of the defendant’s age and of ordinary temperament, i.e. ordinary tolerance and self-restraint, in the circumstances of the defendant might have reacted in the same or in a similar way, the court should take into account the defendant’s age and all the circumstances of the defendant other than matters whose only relevance to the defendant’s conduct is that they bear simply on his or her general capacity for self-control. (3) The partial defence should not apply where: (a) the provocation was incited by the defendant for the purpose of providing an excuse to use violence; or (b) the defendant acted in considered desire for revenge. 219 CASES AND MATERIALS ON CRIMINAL LAW (4) A person should not be treated as having acted in considered desire for revenge if he or she acted in fear of serious violence, merely because he or she was also angry towards the deceased for the conduct which engendered that fear. (5) A judge should not be required to leave the defence to the jury unless there is evidence on which a reasonable jury, properly directed, could conclude that it might apply. ... The unnecessary and undesirable loss of self-control requirement 5.17 For 250 years or more, the law took the uncomplicated view that the defence of provocation could be pleaded whenever D was provoked into a towering rage or temper and killed before the rage or temper subsided. In the nineteenth century, this subjective requirement was turned into a requirement that D ‘lost self-control’ at the time of the killing. Judges have since struggled to interpret and apply this notion as a description of the necessary state of mind. It remains unclear to what extent a delay between the provocation and the loss of self-control will undermine a provocation plea. 5.18 In addition, the requirement of a loss of self-control has been widely criticised as privileging men’s typical reactions to provocation over women’s typical reactions. Women’s reactions to provocation are less likely to involve a ‘loss of self-control’, as such, and more likely to be comprised of a combination of anger, fear, frustration and a sense of desperation. This can make it difficult or impossible for women to satisfy the loss of self-control requirement, even where they otherwise deserve at least a partial defence. 5.19 This is why in our previous report and in the CP, we took the view that a positive requirement of loss of self-control was unnecessary and undesirable. Our current recommendations have not sought to resurrect it. ... Uncertainty over the ‘reasonable person’ requirement 5.33 At present a provocation plea cannot succeed unless the jury decide that a reasonable person might have responded to the provocation in question by doing as D did, namely losing self-control and killing. We set out above, in paragraph 5.11, 1(b) and 2, our recommendation for the way in which this ‘reasonable person requirement’ should be understood. We believe the law needs clarification on this point for the following reasons. 5.34 In a series of cases in recent years, the Court of Appeal, the House of Lords, and the Privy Council, have disagreed over how broadly or narrowly to construe the reasonable person requirement. The result has been uncertainty over its scope and nature, although in no case has the justification for having the restriction in some form been doubted. In the Privy Council case of Attorney-General for Jersey v Holley [1995] UKPC 23, [2005] 2 AC 580, departing from an approach to the reasonable person requirement adopted by the House of Lords only four years previously, [Smith (Morgan) [2001] AC 146] Lord Nicholls said: In expressing their conclusion . . . their Lordships are not to be taken as accepting that the present state of the law is satisfactory. It is not. The widely held view is that the law relating to provocation is flawed to an extent beyond reform by the courts . . . Their Lordships share this view. But the law on provocation cannot be reformulated in isolation from a review of the law of homicide as a whole [ [2005] 2 AC 580, 594 to 595]. 220 HOMICIDE 5.35 Disagreement in the courts has focused on the extent to which D’s own characteristics, or other factors, can, or must, be taken into account in judging how the reasonable person might have responded to the provocation. 5.36 One key question in making that judgment is ‘how gravely provocative really was the provocation’? It is obvious that D’s own characteristics must be relevant to this question. To give a simple example, D’s own height would be relevant in assessing the gravity of the provocation constituted by an accusation that he or she was ‘a midget’. The courts have not encountered significant difficulties in recent years in deciding how such characteristics or factors affecting the gravity of provocation should be dealt with in law. The jury is obliged to take such characteristics into account. 5.37 More controversial has been the question whether the jury should be required, or permitted, to take into account individual characteristics of D (or other factors) liable to affect the level of selfcontrol that he or she can be expected to show in the face of any provocation. It may be, for example, that a drunken D, an immature D or a mentally deficient D, is unable to exercise the same level of self-control, in the face of provocation generally, as a sober adult with normal mental capacities. The courts have disagreed over whether the jury should be required or permitted to take such factors into account. 5.38 We will not retrace the history of the courts’ attempts to introduce clarity to the law on this question. In our view, the function of the reasonable person requirement is to test D’s own reaction against the standards of someone of his or her age possessed of an ordinary temperament: someone who is neither intolerant nor lacking in a reasonable measure of self-restraint when facing provocation. Unless the jury concludes that D’s reaction might have been that of such a person, the defence ought to fail, even if D only killed as a result of a provoked and momentary loss of temper. 5.39 We are reluctant to speculate on how the courts would interpret the provisions in 1(b) and (2) in paragraph 5.11 above. Still less would we wish to insist that they interpret them in a given way. None the less, the following examples may provide some guidance on the kinds of distinctions we think that it would be helpful to draw. 5.40 Our provisions impose a duty on the judge to instruct the jury to ignore factors that affect D’s general capacity to exercise self-control. Alcoholism, for example, or another mental deficiency or disorder that is liable to affect temper and tolerance are obvious examples. A person who has killed because his or her capacity for self-control was reduced by such a characteristic must look to the defence of diminished responsibility for a partial defence, because such characteristics constitute an abnormality of mental functioning, unlike, for example, D’s age. 5.41 Abnormal states of mind, such as intoxication or irritability, should also be left out, as should other factors that affect a general capacity to exercise adequate self-control, like a claim that D is ‘more jealous or obsessive than most’. This approach to the general capacity to exercise adequate self-control will produce some hard cases. Examples might be ones in which, at the time of the provoked killing, D’s general capacity for self-control was temporarily impaired by the effect of taking prescribed medicine, by having suffered a stroke, by involuntary intoxication, by an allergic reaction of some kind or by a bang on the head. 5.42 In such cases, the individual might well be accurately described in general terms as someone with adequate powers of self-restraint. It is just that their reaction could (albeit for good 221 CASES AND MATERIALS ON CRIMINAL LAW reason) not be expected to be the reaction of such a person in the particular circumstances. We believe that if their reaction was not one that might have been the reaction of a person exercising ordinary powers of self-restraint in the particular circumstances, that very fact means the provocation defence must fail. The fact that the individual in question could, putting on one side their reaction in the circumstances, be described as someone with adequate powers of self-restraint is quite irrelevant to the provocation plea. They must instead look to diminished responsibility for a defence. As Professor Gardner expresses the point: [T]he question, for excusatory purposes, is obviously not whether the person claiming the excuse lived up to expectations in the predictive sense of being true to form . . . The question is whether that person lived up to expectations in a normative sense . . . In the face of . . . taunts, did this person exhibit as much self-restraint as we have a right to demand of someone in her situation? The character standards which are relevant to these and other excuses are not the standards of our own characters, nor even the standards of most people’s characters, but rather the standards to which our characters should, minimally, conform . . . those standards cannot be capped according to the capacities (be they past, present or even future) of the person to whom the excuse is supposed to apply. For, such incapacity, far from militating against unfitness [for playing the role of someone with adequate powers of self-control], is a mode of unfitness in its own right. [John Gardner, ‘The Gist of Excuses’ (1998) 1 Buffalo Criminal Law Review 575, 579 to 587 (Gardner’s emphasis).] 5.43 By way of contrast, a low IQ could be taken into account as part of the circumstances of D (see 1(b) in paragraph 5.11 above) if it meant, for example, that D misinterpreted a provocation, thinking it to be more grave than a person of higher intelligence might have done. To give a different example, the fact that D was dumb and thus unable to respond verbally, is a factor that might legitimately be taken into account when considering D’s reaction to a particular provocation given on a particular occasion. In each example, the characteristic is not being used as evidence that the D lacked a general capacity to exercise adequate self-control. 5.44 By way of contrast, some of the evidence given by a psychiatrist in Roberts would not be relevant to the provocation plea, under our recommendations. This was evidence that ‘irrational violence was to be expected from some immature prelingually deaf persons when emotionally disturbed’. This is evidence relevant to a plea of diminished responsibility, rather than to a plea of provocation, because it is evidence of an impaired general capacity for selfcontrol. 5.45 In many instances, the circumstances liable quite properly to influence the jury in D’s favour will bear on how ‘gross’ the provocation was, or on how justifiable it was for D to feel seriously wronged (see 1(a)(i) in paragraph 5.11 above). An example is the cumulative effect of repeated provocations given, quite possibly over many years, in circumstances where it may also have been impossible for D to escape the provocation’s effects. There is usually no theoretical difficulty about taking such background factors into account because they do not necessarily suggest that D is someone with a reduced general capacity to exercise self-control. A classic example would be the intimidated spouse who has been subject to abuse, the cumulative effect of which has become intolerable over the years. 5.46 This area of law will always remain difficult. As we indicated in the CP, however, a trial judge is under a duty to explain to the jury the full context in which a provoked killing has taken place, 222 HOMICIDE and the form of his or her direction ought to be discussed in advance with prosecution and defence advocates. These safeguards should go some way towards minimising the chance of misdirections, and hence appeals. A NEW BASIS FOR THE DEFENCE: FEAR OF SERIOUS VIOLENCE 5.48 In 1(a)(ii) we recommend that: the partial defence of provocation should be expanded to encompass cases in which the defendant overreacted to a fear of serious violence. 5.49 Historically, the common law treated as provocation (sufficient to reduce murder to manslaughter) an overreaction to illegal conduct, such as violence towards or (threatened) false imprisonment of the accused. This line of cases lost its authority when the ‘loss of self-control’ and ‘reasonable person’ requirements became established. As we have said, the provocation defence is currently available only when there is evidence that D was provoked to lose his or her self-control. The defence is concerned with angry, spur-of-the-moment reactions to provocation. It is not concerned with reactions prompted by fear, unaccompanied by a loss of self-control, even if the fear in question was that the victim would have inflicted serious violence on D if the victim had not been killed. ... 5.50 . . . Here are two examples where the law is currently deficient: Example 1: D and V live together, but their relationship is a violent one. V frequently hits D when he (V) comes home drunk. One night, when V comes home drunk and threatens to beat D yet again, she goes to the kitchen, fetches a knife, and stabs V in the chest while he is off his guard. V dies. Example 2: D is an armed police officer called to a house where a neighbour has said there is a man (V) with what looked like a gun. When the officer enters the house, V appears to have something in his hand. D demands that V show him what is in his hand but V does not respond. D shoots V and V dies. It turns out that V had a small metal bar in his hand. V may not have heard what D said because he (V) suffered from deafness. 5.51 In both examples, assuming he or she cannot plead diminished responsibility, D has only two effective choices under the existing law if he or she admits having acted with the fault element for murder. D can plead self-defence, a justificatory plea that, if successful, will end in complete acquittal. Alternatively, D can seek a manslaughter verdict by pleading provocation. 5.52 To succeed in a plea of self-defence, D must make a case that what he or she did was within the bounds of reasonableness, as a means of averting a threat posed by V. In both examples it is possible, given the circumstances, that a jury will accept this. It is also quite possible, however, that the prosecution will persuade the jury in each case that acting with intent to kill or do serious harm was not within the bounds of reasonableness as a response to the threat posed by V. 5.53 Under the present law, if D’s killing of V is regarded as an overreaction in self-defence, he or she must be convicted of murder unless he or she can succeed in a plea of provocation (with the result that the offence is reduced to manslaughter). In example 1, D would be required to frame the partial defence in terms of the provocation constituted by V’s threat, in the context of V’s history of violence. In example 2, the provocation would have to be framed in terms of V’s failure to respond to D’s request, coupled with the fact that V is holding what D believes to be a gun. In 223 CASES AND MATERIALS ON CRIMINAL LAW both examples, that is an artificial way to analyse the basis for a partial defence. Further, D will in both examples have to show that the provocation caused him or her to lose self-control at the time of the killing. It is not enough that D was frightened, but still in control of himself or herself. 5.54 In some circumstances, cases on facts such as those in Examples 1 and 2 should end in a first degree murder verdict. In our view, however, a rational approach to reaching the right verdict is currently hampered by arbitrariness and unfairness in the way that the provocation defence is structured. In particular, D should not be prejudiced because he or she overreacted in fear or panic, instead of over-reacting due to an angry loss of self-control. 5.55 Consequently, we are recommending that the provocation defence should be available where D killed in response to a fear of serious violence. D will be allowed to say that the effect of the fear of the threat, or of the fear of the threat coupled with the impact of the gross provocation received, was such that, in the circumstances, someone of D’s age and of an ordinary temperament might have reacted in the same or in a similar way. The frequently close relationship between anger and fear in someone’s reaction makes us confident that it is right to link these elements together in a single partial defence of provocation. 4.7 INVOLUNTARY MANSLAUGHTER: UNLAWFUL ACT MANSLAUGHTER Where a defendant is proved to have caused death but is not shown to have had the intention to kill or to cause grievous bodily harm, the jury will have to consider whether or not he can be convicted of involuntary manslaughter. At common law involuntary manslaughter charges will normally be formed on one of two bases: • Unlawful act, or constructive, manslaughter; • Killing by gross negligence. The elements of killing by gross negligence are considered at 4.8, below. In order to prove unlawful act manslaughter, the prosecution will have to establish that D committed: • • • • A positive act – an omission will not suffice; Which was also a criminal act – a tortuous act will not suffice; Which was also dangerous; That D had the necessary mens rea for the unlawful act. 4.7.1 THE NEED FOR A POSITIVE CRIMINAL ACT R v Lowe [1973] QB 702 (CA) Phillimore LJ: Robert Lowe appeals against his conviction at Nottingham Crown Court on 25 July 1972 . . . [H]e was convicted on count 2 of the indictment of cruelty to a child by wilfully neglecting it so as to 224 HOMICIDE cause unnecessary suffering or injury to health contrary to the provisions of s 1(1) of the Children and Young Persons Act 1933. He was also convicted on count 1 of manslaughter of the child on the grounds that his cruelty alleged under count 2 caused its death . . . The trial judge . . . directed the jury that if they found the appellant guilty of the second count they must, as a matter of law, find him guilty of the first, namely of manslaughter. Having found him guilty of the second count they also found him guilty of the first and made it clear that they did so solely as a result of the direction by the trial judge; in other words, they did not find the appellant guilty of reckless conduct resulting in the child’s death. . . . This court feels that there is something inherently unattractive in a theory of constructive manslaughter. It seems strange that an omission which is wilful solely in the sense that it is not inadvertent, the consequences of which are not in fact foreseen by the person who is neglectful should, if death results, automatically give rise to an indeterminate sentence instead of the maximum of two years which would otherwise be the limit imposed. We think there is a clear distinction between an act of omission and an act of commission likely to cause harm. Whatever may be the position in regard to the latter it does not follow that the same is true of the former. In other words if I strike a child in a manner likely to cause harm it is right that if the child dies I may be charged with manslaughter. If, however, I omit to do something with the result that it suffers injury to health which results in its death, we think that a charge of manslaughter should not be an inevitable consequence, even if the omission is deliberate. 4.7.2 THE POSITIVE ACT MUST BE A CRIME R v Dias [2002] Crim LR 490 Dias prepared a syringe containing a heroin solution. Escott, the deceased, injected himself with the solution and died shortly afterwards from the resulting overdose. Following Dias’ conviction for unlawful act manslaughter, he appealed on the ground that, as the self-injection by the deceased had not been an unlawful act, Dias had not committed an unlawful act in encouraging the deceased to inject himself. The trial judge granted a certificate in the following terms: ‘Was I correct as a matter of law to direct the jury that it is unlawful for a man to inject heroin into himself?’ Keene LJ: Although there were several possible bases relied on by the Crown for the manslaughter charge, the possibilities were narrowed down by the time the matter was left to the jury . . . The Crown had . . . relied on s 23 of the Offences against the Person Act 1861 which insofar as material provides: Whosoever shall unlawfully and maliciously administer to, or cause to be administered to or taken by any other person any poison, or other destructive or noxious thing, so as thereby to endanger the life of such person . . . shall be guilty of an offence . . . The argument was that if the appellant’s actions came within the terms of that section then they were unlawful and would support a verdict of unlawful and dangerous act manslaughter . . . The direction actually given to the jury was in the following terms: 225 CASES AND MATERIALS ON CRIMINAL LAW . . . manslaughter, is proved in this particular case if the prosecution satisfy you so that you are sure that the defendant assisted and deliberately encouraged Mr Escott to take the heroin. . . . That formulation is appropriate where someone is charged with aiding and abetting an offence. It would render him liable as the secondary party in circumstances where he does not cause the actus reus because the voluntary act of another intervenes. . . . The jury were told that there was no dispute that the heroin in the syringe was a cause of death. The direction given by the judge, which we have just quoted, was the result of a ruling made by him after extensive legal argument. He ruled that following the decision in R v Kennedy [1999] Crim LR 65, the self-injection by Escott of the heroin was itself an unlawful act. It followed that aiding and abetting such an offence would make the appellant criminally liable as a secondary party for that unlawful act which in turn had caused the death of Escott. It will be observed that it was not contended that the manslaughter charge could properly be based merely on the supply of the heroin to Escott . . . We return to the question whether the judge was correct to rule that the self-injection by Escott with heroin was an unlawful act. In this context ‘unlawful’ means that the act has to be a criminal offence: see Franklin (1883) 15 Cox CC 163, and Lamb [1967] 2 QB 981 . . . On behalf of the appellant Mr Rumfitt QC relies on the decision of this court in R v Cato [1976] 1 All ER 260, (1976) 62 Cr App Rep 41. That was a case where the appellant Cato had injected the deceased with morphine with his consent, but bringing about his death. The court upheld the conviction for manslaughter by an unlawful and dangerous act because there was an offence committed by the appellant under s 23 of the 1861 Act, namely administering a noxious thing. That was a case where the appellant had injected the deceased, not one of self-injection by the deceased. Mr Rumfitt relies on a passage at p 47 of the latter report where the court in its judgment given by Lord Widgery CJ said this: Of course, on the first approach to manslaughter in this case it was necessary for the prosecution to prove that Farmer had been killed in the course of an unlawful act. Strangely enough, or it may seem strange to most of us, although the possession or supply of heroin is an offence, it is not an offence to take it . . . That, it is submitted, is clearly right. The possession or the supply of heroin is made an offence under the Misuse of Drugs Act 1971, but nowhere does that statute make it an offence to inject oneself with drugs. It is sought on behalf of the appellant to distinguish the case of Kennedy [1999] Crim LR 65 relied upon by the trial judge. The facts of that case were very similar to those of the present appeal. Kennedy had heated heroin and water in a teaspoon, put some of it into a syringe and handed the syringe to the deceased in return for money. The deceased immediately injected it into his own arm. He died as a result. In upholding the conviction for manslaughter, the court relied upon another passage in Cato [1976] 1 All ER 260, (1976) 62 Cr App Rep 41, where it had been said at p 47 of the latter report that, quite apart from the appellant’s act being unlawful under s 23: We think that there would have been an unlawful act here and we think the unlawful act would be described as injecting the deceased Farmer with a mixture of heroin and water which at the time of the injection and for the purposes of the injection the accused had unlawfully taken into his possession. In Kennedy [1999] Crim LR 65 Waller LJ, giving the judgment of the court, said at p 6 of the transcript: 226 HOMICIDE . . . the injection of the heroin into himself by Bosque [the victim] was itself an unlawful act, and if the appellant assisted in and wilfully encouraged that unlawful conduct, he would himself be acting unlawfully. It is contended by Mr Rumfitt that the court in Kennedy [1999] Crim LR 65 misinterpreted Cato [1976] 1 All ER 260, (1976) 62 Cr App Rep 41. It is said that the injection was unlawful in Cato because administering a drug to another would be contrary to s 23. There is, emphasised Mr Rumfitt, no offence of injecting heroin into oneself; consequently, aiding and abetting the self-administration of heroin is not unlawful. So far as s 23 is concerned, and its reference to ‘administering a noxious substance or causing such a matter to be taken’, it is emphasised that the judge did not leave any issue to the jury on the basis of s 23. It is argued that it cannot be said that the actions of the appellant caused the heroin to be taken by Escott because there was here an intervening act of Mr Escott. The trial judge seems to have accepted that. That is why he did not leave to the jury the issue of whether the acts on the part of the appellant had caused Escott’s death. Mr Rumfitt submits that there is a line to be drawn, and it is to be drawn where the voluntary act of the deceased intervenes. For the prosecution Mr Coker QC contends that there is no conflict between Cato [1976] 1 All ER 260, (1976) 62 Cr App Rep 41 and Kennedy and that the latter was rightly decided. However, he does not seek to argue that self-injection with heroin is of itself an unlawful act. In his words the prosecution ‘is not happy’ with the judge’s conclusion to that effect. Nonetheless, it is submitted that the conviction can be upheld, albeit on a somewhat different basis. It is argued that all the ingredients of manslaughter were present in the case with which we are dealing; that the unlawful act was the supply of the heroin; and that that was a dangerous act because of the likelihood that Escott would take it to his ill-effect. . . . It is argued that, if the unlawful act is the supply and the handing of the mixture in a syringe to the victim, one can find manslaughter properly based on the facts of the case such as the present. In Kennedy [1999] Crim LR 65 the jury had found that there was an unlawful supply of drugs and that that, plus the encouragement given by Kennedy, caused the death of the victim. That was a dangerous act because the encouragement carried with it the risk of harm. In the present case it is suggested that the jury’s findings that the appellant’s acts assisted and encouraged Escott must be sufficient to show causation. We begin with the authorities which have been cited to us. The earliest in time, Cato [1976] 1 All ER 260, (1976) 62 Cr App Rep 41, undoubtedly arrived at the right result since to inject someone with heroin and water would normally be an offence under s 23 of the 1861 Act. That was the basis of the decision, and both the passages relied on (one by each side) from p 47 of the report were strictly obiter. The case was in any event concerned with the injection by one person of another with heroin and water, not with self-injection. The statement that injecting the deceased with that mixture was an unlawful act, irrespective of s 23, is not explained at any length. It may be that it was based on the fact that the appellant was thereby supplying heroin to the deceased . . . In Dalby [1982] 1 All ER 916 . . . the appellant had supplied the deceased with a class A drug (Diconal) in tablet form and both had then injected themselves intravenously. It was not contended that the act of self-injection was unlawful. The supply of the tablets clearly was, and the case turned on the issue of causation. But the end result was that the conviction for manslaughter was quashed. The facts of Kennedy [1999] Crim LR 65 have already been set out earlier in this judgment. However, it is not easy to see on what basis the court concluded that the act of self-injection was unlawful because there is no real elaboration of this point. It is not surprising that the Crown in this 227 CASES AND MATERIALS ON CRIMINAL LAW present appeal finds it difficult to uphold that particular sentence in the report . . . If Kennedy is rightly decided on this aspect, then it would seem that Dalby [1982] 1 All ER 916, (1982) 74 Cr App Rep 348 should have had a different result since on the facts there seems to have been a comparable degree of assistance and encouragement by the appellant in the latter case to that which took place in Kennedy. There is no offence under the Misuse of Drugs Act 1971, or other statute, or at common law, of injecting oneself with a prohibited drug. There is the offence of possession of such a drug, and that offence was committed by Escott, the deceased. We have considered, therefore, whether that renders the act of injection unlawful for these purposes, but we find it difficult to see that it can do so. The causative act (the act causing death) was essentially the injection of the heroin rather than the possession of it. Selfinjection undoubtedly requires unlawful possession in a case such as this, but it is not in itself a separate offence. No one could be charged with injecting himself with heroin, only with the possession of it. The deceased was in possession of the heroin before he injected it and also after he had injected it. Such possession amounted to an offence, but the act of injecting was not itself part of the offence. It was merely made possible by the unlawful possession of the heroin. It seems therefore to this court that the dictum of Lord Widgery CJ in Cato . . . namely that it is not an offence to take heroin, was soundly based. To inject another person with heroin, as in Cato, is likely to be unlawful, not merely because of s 23 but also because it would amount to a supply of a prohibited drug. But that is not this case. There is a further problem about the basis of the present conviction, given the direction by the trial judge. The case was not left to the jury on the footing that the appellant might have caused the death of Escott, and that is perhaps understandable since the act of self-injection was seen by the judge as a voluntary act of an adult not labouring under any mistake as to what he was doing. The judge seems to have taken the view that the chain of causation would have been broken by Escott’s own action. It follows from that that the appellant could only have been guilty of manslaughter as a secondary party and not as a principal. But in that case who is the principal guilty of manslaughter? As there is no offence of self-manslaughter, it is difficult to see how the appellant could be guilty of that offence as a secondary party because of his encouragement or assistance to Escott over the injection of the drug . . . this conviction cannot be regarded as safe and it follows that it will be quashed. This appeal is allowed. COMMENTS AND QUESTIONS 1 In R v Rogers [2003] 1 WLR 1374, the Court of Appeal held that applying a tourniquet to the deceased’s arm so that the deceased could raise a vein amounted to an unlawful act on the part of the appellant, thus justifying his conviction for unlawful act manslaughter where the deceased died from a self-injected overdose of heroin. Rose LJ expressed the view that it was artificial and unreal to separate the application of the tourniquet from the injection; thus by applying the tourniquet, the appellant had played a part in the mechanics of the injection that caused death. How can R v Rogers be reconciled with R v Dias? Does the application of the tourniquet amount to ‘administration’ of the heroin by the defendant? Assisting self-administration cannot be an unlawful act, as the self-administration itself is not unlawful. 2 Following the decision in R v Dalby [1982] 1 WLR 621, in particular the obiter statement from 228 HOMICIDE Waller LJ, to the effect that ‘. . ., where the charge of manslaughter is based on an unlawful and dangerous act, it must be an act directed at the victim and likely to cause immediate injury, however slight . . .’, there was some support for the notion that the unlawful act in constructive manslaughter had to be an offence against the person – how else could the unlawful act be directed at the victim? Choosing to rationalise the decision in R v Dalby as one where the chain of causation was broken by the voluntary consumption of drugs by the victim, the Court of Appeal in R v Goodfellow (1986) 83 Cr App R 23 made clear that there was no requirement in law that the unlawful act should be directed at the victim. In that case it was held that criminal damage would suffice as the basis of an unlawful act manslaughter charge. 3 There is no need for the prosecution to prove that the person at whom the defendant’s unlawful act is aimed must also be the person whose death is caused. As Staughton J observed in R v Mitchell [1983] QB 741: ‘We can see no reason of policy for holding that an act calculated to harm A cannot be manslaughter if it in fact kills B. The criminality of the doer of the act is precisely the same whether it is A or B who dies. A person who throws a stone at A is just as guilty if, instead of hitting and killing A, it hits and kills B.’ 4.7.3 THE CRIMINAL ACT MUST BE DANGEROUS R v Dawson, Nolan and Walmsley (1985) 81 Cr App R 150 (CA) The three appellants attempted to rob a petrol filling station but fled when the attendant pressed an alarm button. The attendant, who suffered from a heart condition, collapsed and died shortly afterwards. The appellants were convicted of manslaughter. At their trial, medical experts were of the opinion that the attempted robbery was responsible for the attendant’s death; but they could not rule out the possibility of a heart attack having occurred before the attempted robbery. Watkins LJ: . . . It has, in our experience, been generally understood that the harm referred to in the second element of the offence of manslaughter, namely the unlawful act, must be one that all sober and reasonable people would realise was likely to cause some, albeit not serious, harm, means physical harm . . . . . . [T]here seems to us to be no sensible reason why shock produced by fright should not come within the definition of harm in this context . . . Shock can produce devastating and lasting effects, for instance upon the nervous system. That is surely harm, i.e. injury to the person. Why not harm in this context? . . . We shall assume without deciding the point, although we incline to favour the proposition, that harm in the context of manslaughter includes injury to the person through the operation of shock emanating from fright . . . . . . In our judgment, a proper direction would have been that the requisite harm is caused if the unlawful act so shocks the victim as to cause him physical injury. . . . [The] test [of knowledge] can only be undertaken upon the basis of the knowledge gained by a sober and reasonable man as though he were present at the scene of and watched the 229 CASES AND MATERIALS ON CRIMINAL LAW unlawful act being performed and who knows that, as in the present case, an unloaded replica gun was in use, but that the victim may have thought it was a loaded gun in working order. In other words, he has the same knowledge as the man attempting to rob and no more. It was never suggested that any of these appellants knew that their victim had a bad heart. They knew nothing about him . . . R v Watson [1989] 1 WLR 684 (CA) Lord Lane CJ: . . . The facts of the case, in so far as they are relevant, were as follows. Late at night on 11 December 1986 two men, one of whom was the appellant, broke into the home of a man called Harold Moyler. Mr Moyler was 87 years old and suffered from a serious condition of the heart. He lived alone. The two men first threw a brick through the window and, having made entry to the house, confronted Mr Moyler as he woke up, abused him verbally and then made off without stealing anything. Mr Moyler died an hour and a half later as the result of a heart attack. The case for the Crown was that the heart attack was a direct consequence of the unlawful actions of the appellant and his colleague . . . It was accepted that the judge correctly defined the offence of manslaughter as it applied to the circumstances as follows: Manslaughter is the offence committed when one person causes the death of another by an act which is unlawful and which is also dangerous, dangerous in the sense that it is an act which all sober and reasonable people would inevitably realise must subject the victim to the risk of some harm resulting whether the defendant realised that or not. The first point taken on behalf of the appellant is this. When one is deciding whether the sober and reasonable person (the bystander) would realise the risk of some harm resulting to the victim, how much knowledge of the circumstances does one attribute to the bystander? The appellant contends that the unlawful act here was the burglary as charged in the indictment. The charge was laid under s 9(1)(a) of the Theft Act 1968, the allegation being that the appellant had entered the building as a trespasser with intent to commit theft. Since that offence is committed at the first moment of entry, the bystander’s knowledge is confined to that of the defendant at that moment. In the instant case there was no evidence that the appellant, at the moment of entry, knew the age or physical condition of Mr Moyler or even that he lived there alone. The judge clearly took the view that the jury were entitled to ascribe to the bystander the knowledge which the appellant gained during the whole of his stay in the house and so directed them. Was this a misdirection? In our judgment it was not. The unlawful act in the present circumstances comprised the whole of the burglarious intrusion and did not come to an end upon the appellant’s foot crossing the threshold or window sill. That being so, the appellant (and therefore the bystander) during the course of the unlawful act must have become aware of Mr Moyler’s frailty and approximate age, and the judge’s directions were accordingly correct . . . 230 HOMICIDE COMMENTS AND QUESTIONS 1 What if the burglary in R v Watson had taken place in complete darkness – the appellant not being able to see the occupant? How if at all would the direction to the jury on dangerousness have to be altered to reflect this? 2 In R v Ball [1989] Crim LR 730, the defendant’s conviction for unlawful act manslaughter was upheld where he had fired a gun at the victim believing the cartridges to be blanks. The appellant had admitted mixing up live and blank rounds. The unlawful act was clear, but as to the issue of dangerousness the appellant contended that a reasonable person could also have made the same mistake regarding whether or not he was loading a live or blank cartridge into the gun. The Court of Appeal refused to impute this error to the reasonable sober bystander. The question of whether the act was dangerous was to be judged not by the appellant’s appreciation but by that of the sober reasonable man, and it was impossible to impute into his appreciation the mistaken belief that what he was doing was not dangerous because he thought he had a blank cartridge in the chamber. Is this consistent with the notion in R v Dawson that the reasonable person sees what the defendant sees and knows what the defendant knows – nothing more nor less? 4.7.4 THE MENS REA FOR UNLAWFUL ACT MANSLAUGHTER Identifying the mens rea for unlawful act manslaughter has been hampered by the rather opaque explanations delivered by appeal courts asked to rule upon this issue. There is common consent that the offence requires mens rea (although see R v Andrews, considered below). What is less clear is exactly what that mens rea is. R v Lamb [1967] 2 QB 981 (CA) Sachs LJ: . . . The defendant, Terence Walter Lamb, aged 25, had become possessed of a Smith & Wesson revolver. It was a revolver in the literal old-fashioned sense, having a five-chambered cylinder which rotated clockwise each time the trigger was pulled. The defendant, in jest, with no intention to do any harm, pointed the revolver at the deceased, his best friend, when it had two bullets in the chambers, but neither bullet was in the chamber opposite the barrel. His friend was similarly treating the incident as a joke. The defendant then pulled the trigger and thus killed his friend, still having no intention to fire the revolver. The reason why the pulling of the trigger produced that fatal result was that its pulling rotated the cylinder and so placed a bullet opposite the barrel so that it was struck by the striking pin or hammer. The defendant’s defence was that, as neither bullet was opposite the barrel, he thought they were in such chambers that the striking pin could not hit them; that he was unaware that the pulling of the trigger would bring one bullet into the firing position opposite the barrel; and that the killing was thus an accident. There was not only no dispute that that was what he in fact thought, but the mistake he made was one which three experts agreed was natural for somebody who was not aware of the way the revolver mechanism worked . . . The defence of accident was, however, in effect withdrawn from the jury by the trial judge . . . [who] made no mention of the word ‘accident’ in his summing-up nor of the evidence of the experts save that he at one stage directed the jury that their evidence was not relevant . . . 231 CASES AND MATERIALS ON CRIMINAL LAW Dealing with manslaughter in the sense of an unlawful act resulting in death his Lordship said: . . . The trial judge took the view that the pointing of the revolver and the pulling of the trigger was something which could of itself be unlawful even if there was no attempt to alarm or intent to injure . . . [Counsel for the Crown] however, had at all times put forward the correct view that for the act to be unlawful it must constitute at least what he then termed ‘a technical assault’. In this court moreover he rightly conceded that there was no evidence to go to the jury of any assault of any kind. Nor did he feel able to submit that the acts of the defendant were on any other ground unlawful in the criminal sense of that word. Indeed no such submission could in law be made: if, for instance, the pulling of the trigger had had no effect because the striking mechanism or the ammunition had been defective no offence would have been committed by the defendant. Another way of putting it is that mens rea, being now an essential ingredient in manslaughter (compare Andrews v DPP [1937] AC 576 and R v Church [1966] 1 QB 59), that could not in the present case be established in relation to the first ground except by proving that element of intent without which there can be no assault. It is perhaps as well to mention that when using the phrase ‘unlawful in the criminal sense of that word’ the court has in mind that it is long settled that it is not in point to consider whether an act is unlawful merely from the angle of civil liabilities . . .’ [Therefore] the verdict cannot stand . . . DPP v Newbury and Jones [1977] AC 500 (HL) Lord Salmon: My Lords, on 11 October 1974, the train travelling from Pontypridd to Cardiff was approaching a bridge which crossed the railway line. The guard was sitting next to the driver of the train in the front cab. The driver noticed the heads of three boys above the parapet of the bridge. He saw one of the boys push something off the parapet towards the oncoming train. This proved to be part of a paving stone which some workmen had left on the parapet. It came through the glass window of the cab in which the driver and the guard were sitting, struck the guard and killed him. There was ample evidence that just as the train was about to reach the bridge the two appellants, who were each about 15 years of age, were jointly concerned in pushing over the parapet the piece of paving stone which killed the guard. They were jointly charged with manslaughter . . . The point of law certified to be of general public importance is ‘can a defendant be properly convicted of manslaughter, when his mind is not affected by drink or drugs, if he did not foresee that his act might cause harm to another?’ The learned trial judge did not direct the jury that they should acquit the appellants unless they were satisfied beyond a reasonable doubt that the appellants had foreseen that they might cause harm to someone by pushing the piece of paving stone off the parapet into the path of the approaching train. In my view the learned trial judge was quite right not to give such a direction to the jury . . . In R v Larkin (1942) 29 Cr App R 18, Humphreys J said at 23: Where the act which a person is engaged in performing is unlawful, then if at the same time it 232 HOMICIDE is a dangerous act, that is, an act which is likely to injure another person, and quite inadvertently the doer of the act causes the death of that other person by that act, then he is guilty of manslaughter. . . . [T]hat is an admirably clear statement of the law which has been applied many times. It makes it plain (a) that an accused is guilty of manslaughter if it is proved that he intentionally did an act which was unlawful and dangerous and that that act inadvertently caused death and (b) that it is unnecessary to prove that the accused knew that the act was unlawful or dangerous. This is one of the reasons why cases of manslaughter vary so infinitely in their gravity. They may amount to little more than pure inadvertence and sometimes to little less than murder . . . . . . In judging whether the act was dangerous the test is not did the accused recognise that it was dangerous but would all sober and reasonable people recognise its danger . . . Lord Edmund Davies delivered a concurring speech. Attorney General’s Reference (No 3 of 1994) [1997] 3 All ER 936 Lord Hope . . . the accused must be proved to have intended to do what he did, it is not necessary to prove that he knew that his act was unlawful or dangerous. So it must follow that it is unnecessary to prove that he knew that his act was likely to injure the person who died as a result of it. All that need be proved is that he intentionally did what he did . . . As Lord Salmon put it in DPP v Newbury . . . manslaughter is one of those crimes in which only what is called a basic intention need be proved – that is, an intention to do the act which constitutes the crime. COMMENTS AND QUESTIONS 1 Do these authorities specify the mens rea for unlawful act manslaughter? Does the defendant have to have the actual mens rea required for the unlawful act (ie in R v Watson – burglary; in R v Dawson – attempted robbery), or is it sufficient, as Lord Hope indicates in Attorney General’s Reference (No 3 of 1994) [1997] 3 All ER 936 (above), that the defendant ‘. . . intended to do what he did . . .’? 2 What if the dangerous criminal act is one of strict liability? R v Andrews [2003] Crim LR 477 suggests that the mens rea requirement for unlawful act manslaughter follows the contours of the underlying offence. In that case the prosecution based its case on the fact that the defendant had committed an offence contrary to s 58(2)(b) of the Medicines Act 1968, in supplying insulin that had been lawfully prescribed for another person. D injected P who died as a result of the injection. The offence under the 1968 Act did not require proof of mens rea. In order to reflect the gravity of the offence of manslaughter, should the prosecution have been required to base its case on s 23 or s 24 of the Offences Against the Person Act 1861 (considered at Chapter 5.4)? 233 CASES AND MATERIALS ON CRIMINAL LAW 4.8 INVOLUNTARY MANSLAUGHTER: KILLING BY GROSS NEGLIGENCE Whereas unlawful act manslaughter requires proof of a positive act, many instances of killing by gross negligence are characterised by the defendant’s failure to discharge the duty of care owed to the deceased – in contrast to unlawful act manslaughter, liability for killing by gross negligence can be based on a failure to act. The essence of this form of manslaughter is that the defendant was engaged in an activity that was, per se, lawful. His criminality lies in the fact that he has carried out this activity so negligently – death being the result – that he deserves to incur not only tortuous liability, but also the stigmatisation and punishment that accompanies a conviction for manslaughter. A common factor in killing by gross negligence cases is the existence of the duty of care owed by the defendant to the deceased. Hence many of the early cases involved the death of patients through poor medical treatment. In R v Bateman [1925] 94 LJKB 791, where D operated on a woman who died, the Court of Appeal allowed an appeal against a conviction for killing by gross negligence because the trial judge had failed to distinguish between the degree of negligence required for civil liability and that required for manslaughter. Lord Hewart CJ indicated the rationale for this form of manslaughter when he observed that a defendant could only be convicted of the offence if the prosecution could show negligence so gross in that it went beyond a mere matter of compensation between subjects – i.e. was so serious, it could not be left to the civil law to resolve the issue of fault. The purpose of the prosecution, at least in part, was to publicly label the defendant’s actions as criminal. What are the elements of killing by gross negligence? • • • • Act or omission by D; D owed P a duty of care; D’s breach of duty caused P’s death in fact and in law; D breached that duty of care in circumstances amounting to gross negligence. 4.8.1 WHEN WILL A DUTY OF CARE ARISE? R v Wacker [2002] Crim LR 839 Fifty-eight Chinese illegal immigrants died whilst being smuggled from Holland to the United Kingdom concealed in the back of the appellant’s lorry. The immigrants had been loaded into a specially adapted partition, hidden from view by a consignment of tomatoes. The container was refrigerated and the deaths resulted from a lack of ventilation. The appellant was convicted, inter alia, of 58 offences of gross negligence manslaughter. Part of the appellant’s argument had been that the doctrine of ex turpi causa non oritur actio applied (i.e. that the law of negligence did not recognise the relationship between those involved in a criminal enterprise as giving rise to a duty of care owed by one participant to another). On this basis he contended that he had not owed the immigrants any duty of care, as they too must have been involved in an illegal enterprise. 234 HOMICIDE Kay LJ: There are occasions when it is helpful when considering questions of law for the court to take a step back and to look at an issue of law that arises without first turning to, and becoming embroiled in, the technicalities of the law. This is such a case. We venture to suggest that all right minded people would be astonished if the propositions being advanced on behalf of the appellant correctly represented the law of the land. The concept that one person could be responsible for the death of another in circumstances such as these without the criminal law being able to hold him to account for that death even if he had shown not the slightest regard for the welfare and life of the other is one that would be unacceptable in civilised society. Taking this perspective of the case causes one immediately to question whether the whole approach adopted by both counsel and the judge in the court below can be correct, and we must, therefore, examine this matter. The first question that it is pertinent to ask is why it is that the civil law has introduced the concept of ex turpi causa. The answer is clear from the authorities . . . as a matter of public policy the courts will not ‘promote or countenance a nefarious object or bargain which it is bound to condemn’. In other situations, it is clear that the criminal law adopts a different approach to the civil law in this regard. A person who sold a harmless substance to another pretending that it was an unlawful dangerous drug could not be the subject of a successful civil claim by the purchasers for the return of the purchase price. However the criminal law would, arising out of the same transaction, hold that he was guilty of the offence of obtaining property by deception [since replaced by sections 2 to 4 of the Fraud Act 2006]. Many other similar examples readily come to mind. Why is then, therefore, this distinction between the approach of the civil law and the criminal law? The answer is that the very same public policy that causes the civil courts to refuse the claim points in a quite different direction in considering a criminal offence. The criminal law has as its function the protection of citizens and gives effect to the state’s duty to try those who have deprived citizens of their rights of life, limb or property. It may very well step in at the precise moment when civil courts withdraw because of this very different function. The withdrawal of a civil remedy has nothing to do with whether as a matter of public policy the criminal law applies. The criminal law should not be disapplied just because the civil law is disapplied. It has its own public policy aim which may require a different approach to the involvement of the law. Further the criminal law will not hesitate to act to prevent serious injury or death even when the persons subjected to such injury or death may have consented to or willingly accepted the risk of actual injury or death. By way of illustration, the criminal law makes the assisting another to commit suicide a criminal offence and denies a defence of consent where significant injury is deliberately caused to another in a sexual context (Brown [1994] 1 AC 212). The state in such circumstances has an overriding duty to act to prevent such consequences. Thus looked at as a matter of pure public policy, we can see no justification for concluding that the criminal law should decline to hold a person as criminally responsible for the death of another simply because the two were engaged in some joint unlawful activity at the time or, indeed, because there may have been an element of acceptance of a degree of risk by the victim in order to further the joint unlawful enterprise. Public policy, in our judgment, manifestly points in totally the opposite direction. The next question that we are bound to ask ourselves is whether in any way we are required by authority to take a different view. The foundation for the contention that ex turpi causa is as much a part of the law of manslaughter as it is a part of the law of negligence is the passage from the 235 CASES AND MATERIALS ON CRIMINAL LAW speech of Lord Mackay in Adomako . . . In particular it is Lord Mackay’s reference to ‘the ordinary principles to negligence’. 37 Adomako was a case where an anaesthetist had negligently brought about the death of a patient. It, therefore, involved no element of unlawful activity on the part of either the anaesthetist or the victim. We have no doubt that issues raised in the case we are considering would never have crossed the minds of those deciding that case in the House of Lords. Insofar as Lord Mackay referred to ‘ordinary principles of the laws of negligence’ we do not accept for one moment that he was intending to decide that the rules relating to ex turpi causa were part of those ordinary principles. He was doing no more than holding that in an ‘ordinary’ case of negligence, the question whether there was a duty of care was to be judged by the same legal criteria as governed whether there was a duty of care in the law of negligence. That was the only issue relevant to that case and to give the passage the more extensive meaning accepted in the court below was in our judgment wrong. 38 The next question which is posed is whether it is right to say in this case that no duty of care can arise because it is impossible or inappropriate to determine the extent of that duty. We do not accept this proposition. If, at the moment when the vent was shut, one of the Chinese had said ‘you will make sure that we have enough air to survive’, the appellant would have had no difficulty understanding the proposition and clearly by continuing with the unlawful enterprise in the way that he did, he would have been shouldering the duty to take care for their safety in this regard. The question was such an obvious one that it did not need to be posed and we have no difficulty in concluding that in these circumstances the appellant did voluntarily assume the duty of care for the Chinese in this regard. He was aware that no one’s actions other than his own could realistically prevent the Chinese from suffocating to death and if he failed to act reasonably in fulfilling this duty to an extent that could be characterised as criminal, he was guilty of manslaughter if death resulted. 39 One further issue merits consideration, namely is it any answer to a charge of manslaughter for a defendant to say ‘we were jointly engaged in a criminal enterprise and weighing the risk of injury or death against our joint desire to achieve our unlawful objective, we collectively thought that it was a risk worth taking’. In our judgment it is not. The duty to take care cannot, as a matter of public policy, be permitted to be affected by countervailing demands of the criminal enterprise. Thus, in this case, the fact that keeping the vent shut increased the chances of the Chinese succeeding in entering the United Kingdom without detection was not a factor to be taken into account in deciding whether the appellant had acted reasonably or not . . . COMMENTS AND QUESTIONS 1 The court in R v Wacker rejected a challenge on the point of jurisdiction. The duty of care may have arisen in Holland but it continued as the lorry came within the jurisdiction of the British courts – arguably on a British registered vessel. 2 Does the illegal supplier of controlled drugs owe a duty of care to his client? In R v Khan [1998] Crim LR 830, the Court of Appeal declined to rule on whether a drug pusher owed a duty of care to a 15-year-old prostitute, to whom he had supplied a quantity of heroin. The girl 236 HOMICIDE consumed twice the amount that might be consumed by an experienced user of heroin and fell into a coma whilst on the appellant’s premises. The appellant then left P alone, and she died shortly afterwards. Could it be said that the appellant had created a reliance relationship given the girl’s age and the fact that she was on the appellant’s property with his permission? Presumably the extent of the duty of care will depend upon the expertise and autonomy of the victim, as well as the extent of any reliance placed upon the defendant by the deceased. 3 Does the supplier of an unlicensed firearm owe a duty of care to the recipient who turns it on himself and commits suicide? 4 In R v Singh [1999] Crim LR 582, the Court of Appeal more readily identified a duty of care where the appellants, a landlord and a gas fitter, had their convictions for killing by gross negligence upheld, following the death of one of the landlord’s tenants from carbon monoxide poisoning. 5 In Lewin v CPS [2002] EWHC 1049, the court considered whether there ought to have been a prosecution for killing by gross negligence where D left P asleep in a car overnight and P, remaining asleep once in the car during the following day, died from the effects of the heat. Kennedy LJ observed: [A duty of care ] . . . could only persist in a way which would be relevant to the offence of manslaughter if a reasonable person would have foreseen that by leaving the deceased in the vehicle parked in that position [the deceased] was being exposed to the risk not merely of injury or even of serious injury but of death . . . there was, as it seems to me, no realistic possibility of demonstrating beyond reasonable doubt that a reasonable person in the position of [the appellant] would have foreseen the risk of death. 6 If objective recklessness is no longer a basis for criminal liability – see R v G [2003] – can the objective approach to liability for killing by gross negligence be justified? See further R v Mark [2004] All ER (D) 35. 7 In R v Willoughby [2004] All ER (D) 79 the appellant had set fire to his business premises in order to solve his financial problems. He had spread petrol inside the premises causing a fire and an explosion that caused the death of the victim who had been assisting the appellant. The Court of Appeal rejected the argument that the appellant had owed the victim a duty of care simply because he had been the owner of the premises. The duty arose because the appellant had enlisted the victim’s help in carrying out the acts amounting to arson. 4.8.2 WHEN WILL THE NEGLIGENCE ACCOMPANYING A BREACH OF DUTY BE CHARACTERISED AS ‘GROSS’? In R v Stone and Dobinson [1977] QB 354 (considered in Chapter 2.5.4), Geoffrey Lane LJ described gross negligence as a form of recklessness. He observed: ‘What the Crown has to prove is a breach of that duty in such circumstances that the jury feel convinced that the defendant’s conduct can properly be described as reckless. That is to say a reckless disregard of danger to the health and welfare of the infirm person. Mere inadvertence is not enough. 237 CASES AND MATERIALS ON CRIMINAL LAW The defendant must be proved to have been indifferent to an obvious risk of injury to health, or actually to have foreseen the risk but to have determined nevertheless to run it.’ This raised questions as to whether killing by gross negligence was really a species of reckless manslaughter, and if it was, a further question arose as to what type of recklessness was involved – subjective or objective. Answering these questions was not made any easier by the terminology deployed by Geoffrey Lane LJ – what did he mean by the distinction between inadvertence and indifference? As more recent authorities (extracted below) illustrate, that debate has become somewhat redundant. Gross negligence is really a fault term that describes the way in which the defendant conducted himself. It can be established without any direct evidence as to the defendant’s state of mind, although any such evidence may be considered by the jury in determining whether or not the negligence was gross. R v Adomako [1994] 3 WLR 288 The defendant was a locum tenens anaesthetist employed at a hospital. He was assisting during an operation on a patient for a detached retina. During the operation the tube from the patient’s ventilator became detached. By the time D became aware that something had gone wrong the damage caused to the patient had become irreversible and he died. D was convicted of manslaughter following a direction from the trial judge, in terms of gross negligence as the basis for liability rather than recklessness. The Court of Appeal certified that a point of law of general public importance was involved in the decision to dismiss the appeal, namely: In cases of manslaughter by criminal negligence not involving driving but involving a breach of duty is it a sufficient direction to the jury to adopt the gross negligence test set out by the Court of Appeal in the present case following R v Bateman (1925) 19 Cr App R 8 and Andrews v DPP [1937] AC 576 . . .? Lord Mackay of Clashfern LC: . . . [having referred to R v Bateman 19 Cr App R 8, continued] To support an indictment for manslaughter the prosecution must prove the matters necessary to establish civil liability (except pecuniary loss), and, in addition, must satisfy the jury that the negligence or incompetence of the accused went beyond a mere matter of compensation and showed such disregard for the life and safety of others as to amount to a crime against the state and conduct deserving punishment. Next I turn to Andrews v DPP [1973] AC 576 which was a case of manslaughter through dangerous driving of a motor car. In a speech with which all the other members of this House who sat agreed, Lord Atkin said at 581–82: . . . of all crimes manslaughter appears to afford most difficulties of definition, for it concerns homicide in so many and so varying conditions. From the early days when any homicide involved penalty the law has gradually evolved ‘through successive differentiations and integrations’ until it recognises murder on the one hand, based mainly, though not exclusively, on an intention to kill, and manslaughter on the other hand, based mainly, though not exclusively, on the absence of intention to kill but with the presence of an 238 HOMICIDE element of ‘unlawfulness’ which is the elusive factor. In the present case it is only necessary to consider manslaughter from the point of view of an unintentional killing caused by negligence, that is, the omission of a duty to take care . . . Lord Atkin then referred to the judgment of Lord Hewart CJ [in R v Bateman] from which I have already quoted and went on at 583: Here again I think with respect that the expressions used are not, indeed they were probably not intended to be, a precise definition of the crime. I do not myself find the connotations of mens rea helpful in distinguishing between degrees of negligence, nor do the ideas of crime and punishment in themselves carry a jury much further in deciding whether in a particular case the degree of negligence shown is a crime and deserves punishment. But the substance of the judgment is most valuable, and in my opinion is correct. In practice it has generally been adopted by judges in charging juries in all cases of manslaughter by negligence, whether in driving vehicles or otherwise. The principle to be observed is that cases of manslaughter in driving motor cars are but instances of a general rule applicable to all charges of homicide by negligence. Simple lack of care such as will constitute civil liability is not enough: for purposes of the criminal law there are degrees of negligence: and a very high degree of negligence is required to be proved before the felony is established. Probably of all the epithets that can be applied ‘reckless’ most nearly covers the case. It is difficult to visualise a case of death caused by reckless driving in the connotation of that term in ordinary speech which would not justify a conviction for manslaughter: but it is probably not all-embracing, for ‘reckless’ suggests an indifference to risk whereas the accused may have appreciated the risk and intended to avoid it and yet shown such a high degree of negligence in the means adopted to avoid the risk as would justify a conviction. If the principle of Bateman’s case 19 Cr App R 8 is observed it will appear that the law of manslaughter has not changed by the introduction of motor vehicles on the road. Death caused by their negligent driving, though unhappily much more frequent, is to be treated in law as death caused by any other form of negligence: and juries should be directed accordingly. In my opinion the law as stated in these two authorities is satisfactory as providing a proper basis for describing the crime of involuntary manslaughter. Since the decision in Andrews was a decision of your Lordships’ House, it remains the most authoritative statement of the present law which I have been able to find . . . On this basis in my opinion the ordinary principles of the law of negligence apply to ascertain whether or not the defendant has been in breach of a duty of care towards the victim who has died. If such breach of duty is established the next question is whether that breach of duty caused the death of the victim. If so, the jury must go on to consider whether that breach of duty should be characterised as gross negligence and therefore as a crime. This will depend on the seriousness of the breach of duty committed by the defendant in all the circumstances in which the defendant was placed when it occurred. The jury will have to consider whether the extent to which the defendant’s conduct departed from the proper standard of care incumbent upon him, involving as it must have done a risk of death to the patient, was such that it should be judged criminal. It is true that to a certain extent this involves an element of circularity, but in this branch of the law I do not believe that is fatal to its being correct as a test of how far conduct must depart from accepted standards to be characterised as criminal. This is necessarily a question of degree and 239 CASES AND MATERIALS ON CRIMINAL LAW an attempt to specify that degree more closely is I think likely to achieve only a spurious precision. The essence of the matter which is supremely a jury question is whether having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount in their judgment to a criminal act or omission . . . Attorney General’s Reference (No 2 of 1999) [2000] 3 All ER 182 The prosecution arose from a collision which occurred in September 1997, between a high speed train (HST) from Swansea to London Paddington, operated by the defendant company, and a freight train crossing from the down relief line to Southall Yard. Seven passengers died. There was evidence that the various safety warning devices installed to assist the driver had been switched off with the result that the train went through several signals set at red. The company operating the HST was charged with killing by gross negligence. Rose LJ: As a result of R v Adomako, Mr Lissack [for the Attorney-General] submitted, gross negligence manslaughter can be proved without the need to inquire into the state of the defendant’s mind. This proposition is supported by a passage in Smith and Hogan’s Criminal Law (7th edn, 1992) pp 90, 91, which culminates in contrasting crimes requiring mens rea with crimes of negligence. The Adomako test was derived from R v Bateman (1925) 19 Cr App R 8, [1925] All ER Rep 45, which was an objective test (see Criminal Law: Involuntary Manslaughter (Law Com 135, para 3.32)). For the defendant Mr Caplan QC, in relation to question (1), submitted that there is a difference between whether mens rea must be proved and whether it may be relevant. He accepted that it need not be proved for gross negligence. But, he said, it may be relevant because the Adomako test requires the jury, when deciding if the breach is criminal, to consider it in all the circumstances. Furthermore, in R v Adomako [1994] 3 All ER 79 at 87, [1995] 1 AC 171 at 187 Lord Mackay LC went on to say that it was perfectly appropriate to use the word ‘reckless’ in cases of involuntary manslaughter, in its ordinary connotation as in R v Stone, R v Dobinson [1977] 2 All ER 341, [1977] QB 354. In R v Stone, R v Dobinson Lord Lane CJ said that, where a defendant had undertaken a duty of care for the health and welfare of an infirm person the prosecution had to prove: a reckless disregard of danger to the health and welfare of the infirm person. Mere inadvertence is not enough. The defendant must be proved to have been indifferent to an obvious risk of injury to health, or actually to have foreseen the risk but to have determined nevertheless to run it. On this question, we accept the submissions of both Mr Lissack and Mr Caplan . . . Although there may be cases where the defendant’s state of mind is relevant to the jury’s consideration when assessing the grossness and criminality of his conduct, evidence of his state of mind is not a prerequisite to a conviction for manslaughter by gross negligence. The Adomako test is objective, but a defendant who is reckless as defined in R v Stone, R v Dobinson may well be the more readily found to be grossly negligent to a criminal degree. 240 HOMICIDE R v Misra; R v Srivastava [2004] EWCA Crim 2375 The facts are set out at Chapter 2.9.5. The following extracts concern the court’s evaluation of the mens rea requirement in the offence of killing by gross negligence. Judge LJ: [53] Adomako further explained that with involuntary manslaughter, notwithstanding Seymour, recklessness as explained in the Lawrence/Caldwell sense had no application. The use of the word ‘reckless’ by the trial judge, as part of his exposition of the concept of gross negligence in an appropriate case, was permissible. In the single speech agreed by the other members of the House, as we have already indicated, Lord Mackay approved Stone and West London Coroner, ex parte Grey as examples of an acceptable use of the word ‘reckless’ in its ordinary connotation. In Stone, Geoffrey Lane LJ described examples of ‘recklessness’, and reflected the observations of Lord Atkin in Andrews that reckless ‘was an appropriate epithet for the very high degree of negligence required before the defendant could be convicted of manslaughter by gross negligence’. Although the word ‘reckless’ might be deployed in summing-up to the jury, its use simply reflected one way of describing the ingredients of the offence. At the end of his speech Lord Mackay’s language was quite unequivocal: While therefore I have perhaps said in my view it is perfectly open to a trial judge to use the word ‘reckless’ if it appears appropriate in the circumstances of a particular case, as indicating the extent to which the defendant’s conduct must deviate from that of a proper standard of care, I do not think it right to require that this should be done, and certainly not right that it should incorporate the full detail required in Lawrence. [54] The point of law certified for the decision of the House of Lords was answered: In cases of manslaughter by criminal negligence involving a breach of duty, it is a sufficient direction to the jury to adopt the gross negligence tests set out by the Court of Appeal in the present case, following R v Bateman 19 Cr App R 8, and Andrews v Director of Public Prosecutions [1937] AC 576, and that it is not necessary to refer to the definition of recklessness in R v Lawrence [1982] AC 510, although it is perfectly open to the trial judge to use the word ‘reckless’ in its ordinary meaning as part of his exposition of the law if he deems it appropriate in the circumstances of the particular case. The result of the appeal was that the continuing existence of the offence of manslaughter by gross negligence was confirmed. The attempt to replace manslaughter by gross negligence with manslaughter by recklessness was rejected. [55] It is convenient now to address the argument that the decision in R v G and Another should lead us to reassess whether gross negligence manslaughter should now be replaced by and confined to reckless manslaughter. As we have shown, precisely this argument by Lord Williams of Mostyn was rejected in Adomako. We also note, first, that Parliament has not given effect to possible reforms on this topic discussed by the Law Commission and, second, notwithstanding that Adomako was cited in argument in R v G and Another, it was not subjected to any reservations or criticisms. Indeed in his speech Lord Bingham of Cornhill emphasised that in R v G he was not addressing the meaning of ‘reckless’ in any other statutory or common law context than s 1(1) and (2) of the Criminal Damage Act 1971. In these circumstances, although we gave leave to 241 CASES AND MATERIALS ON CRIMINAL LAW Mr Gledhill [counsel for Misra] to amend his grounds of appeal to enable him to deploy the argument, we reject it. [56] We can now reflect on Mr Gledhill’s associated contention that if recklessness is not a necessary ingredient of this offence, the decision in Attorney General’s Reference (No. 2 of 1999) [2000] QB 796, [2000] 3 All ER 182 led to the unacceptable conclusion that manslaughter by gross negligence did not require proof of any specific state of mind, and that the defendant’s state of mind was irrelevant. In our judgment the submission is based on a narrow reading of the decision that a defendant may properly be convicted of gross negligence manslaughter in the absence of evidence as to his state of mind. However when it is available, such evidence is not irrelevant to the issue of gross negligence. It will often be a critical factor in the decision (see R (on the application of Rowley) v DPP [2003] EWHC 693). In Adomako itself, Lord Mackay directed attention to ‘all’ of the circumstances in which the defendant was placed: he did not adopt, or endorse, or attempt to redefine the list of states of mind to which Lord Taylor CJ referred in Prentice, which was not in any event ‘exhaustive’ of possible relevant states of mind. It is therefore clear that the defendant is not to be convicted without fair consideration of all the relevant circumstances in which his breach of duty occurred. In each case, of course, the circumstances are fact-specific. [57] Mr Gledhill nevertheless contended that even so, the problem of mens rea remains. This, he argued was a necessary, but absent ingredient of the offence. We have reflected, of course, that if the defendant intends death or really serious harm, and acts in such a way to cause either, and death results, he would be guilty of murder. If he intends limited injury, and causes death, he would be guilty of manslaughter in any event. We are here concerned with the defendant who does not intend injury, but who in all the contemporaneous circumstances is grossly negligent. As a matter of strict language, ‘mens rea’ is concerned with an individual defendant’s state of mind. Speaking generally, negligence is concerned with his failure to behave in accordance with the standards required of the reasonable man. Looked at in this way, the two concepts are distinct. However the term ‘mens rea’ is also used to describe the ingredient of fault or culpability required before criminal liability for the defendant’s actions may be established. In Sweet v Parsley [1970] AC 132, [1969] 1 All ER 347, Lord Reid explained that there were occasions when gross negligence provided the ‘necessary mental element’ for a serious crime. Manslaughter by gross negligence is not an absolute offence. The requirement for gross negligence provides the necessary element of culpability. COMMENTS AND QUESTIONS 1 Lord Mackay in R v Adomako (above) conceded that the definition of gross negligence was necessarily somewhat circular in nature (ie the negligence is gross if it is criminal and vice versa). As to whether this offends the requirement of legal certainty required by Art 7 of the European Convention on Human Rights see further Chapter 1.10.5. 2 Causing death by dangerous driving, contrary to s 1 of the Road Traffic Act 1988 carries the possibility of 14 years’ imprisonment and can be committed without direct evidence of the defendant’s state of mind – all that is required is proof that the driving was dangerous and that it caused the death. Whether or not driving is dangerous can be determined objectively. The Road Safety Act 2006 introduced the offence of causing death by careless or inconsiderate driving. This offence is similarly based on an objective fault element (albeit a lower fault 242 HOMICIDE element than dangerousness) and this lower level of culpability is reflected in the lower maxium sentence of five years’ imprisonment. Is it appropriate that a defendant might face a 5-year sentence for the consequences of an ‘inconsiderate’ act? Should not cases of human error be more appropriately dealt with in the civil courts? 4.9 CAUSING OR ALLOWING THE DEATH OF A CHILD OR VULNERABLE ADULT Section 5 of the Domestic Violence, Crime and Victims Act 2004 introduces a new form of liability for homicide, causing or allowing the death of a child or vulnerable adult. Liability can arise in a number of ways. The most straightforward is where the child or vulnerable adult (‘V’): • was a member of the same household as D; • had frequent contact with D at that time when there was a significant risk of serious physical harm being caused to V by the unlawful act of D; and • D was the person whose act caused V’s death. Alternatively D can incur liability where the child or vulnerable adult (‘V’): • dies as a result of the unlawful act of a person (‘X’) who was a member of the same household as V, and had frequent contact with V; and • D was also a member of the same household as V, and had frequent contact with V; and • at that time there was a significant risk of serious physical harm being caused to V by the unlawful act of X; and • D was, or ought to have been, aware that there was a significant risk of serious physical harm being caused to V by the unlawful act of X; and • D failed to take such steps as he could reasonably have been expected to take to protect V from the risk; and • the act of X causing V’s death occurred in circumstances of the kind that D foresaw or ought to have foreseen. Note that for the purposes of this offence, a child is a person under the age of 16. A vulnerable adult is defined as ‘. . . a person aged 16 or over whose ability to protect himself from violence, abuse or neglect is significantly impaired through physical or mental disability or illness, through old age or otherwise’; see s 5(6). Where D is not the mother or father of V no liability can arise unless D was over the age of 16 at the time of the act that caused V’s death. The expression ‘member of the same household’ is inevitably somewhat vague. Section 5(4) seeks to clarify this somewhat by providing that: ‘. . . a person is to be regarded as a “member” of a particular household, even if he does not live in that household, if he visits it so often and for such periods of time that it is reasonable to regard him as a member of it.’ Although the offence is expressed in terms of acts causing death, s 5(6) makes it clear that for these purposes ‘act’ includes a course of conduct and also includes omission. 243 CASES AND MATERIALS ON CRIMINAL LAW For the purposes of s 5 an ‘unlawful’ act is one that constitutes an offence. Where the unlawful act is one committed by X (see above), an ‘unlawful’ act is one that constitutes an offence or one that would constitute an offence but for being the act of a person under the age of ten, or a person entitled to rely on a defence of insanity. The offence carries a maximum penalty of 14 years’ imprisonment following conviction on indictment. The aim of this new offence is to close a loophole in existing law whereby parents or carers can escape liability if the prosecution cannot establish which member of the household was responsible for the death. As s 5(2) makes clear, D can be convicted where he himself caused the death through his act or omission, or where he allowed the death to be caused by another under the terms of s 5(1)(d). The prosecution does not have to specify which mode of liability is being alleged. 4.10 CODIFICATION AND LAW REFORM PROPOSALS As noted above (see 4.1.2 Law Com No 304: Proposals for a new ‘ladder’ of homicide offences) the Law Commission’s Report (Law Com No 304) Murder, Manslaughter And Infanticide proposes a ladder of offences based around first degree and second degree murder, with a third category of unlawful killing comprising manslaughter – defined as: • killing another person through the commission of a criminal act intended by the defendant to cause injury (‘criminal act manslaughter’), or • killing another person through the commission of a criminal act that the defendant was aware involved a serious risk of causing some injury (‘criminal act manslaughter’), or • killing another person through gross negligence (‘gross negligence manslaughter’). As Law Com No 304 explained: 2.164 Our recommendation with regard to gross negligence manslaughter reflects the current legal position. Our recommendation with regard to criminal act manslaughter is almost identical to the proposal put forward by the Government for replacing ‘unlawful and dangerous act’ manslaughter . . . 2.165 As we have already indicated, not all reckless killings will fall into the category of second degree murder. Will they be covered by the concept of gross negligence, within manslaughter? We believe that they will. If someone realises that there is a risk of causing death, but unjustifiably carries on with h