Introduction

- Outline and then work through all potential offences committed

- Consider offences in the alternative
- Explain which offence is the most appropriate, and why the other offences are not appropriate
- Draw on arguments at controversial points
- The charge should be the most serious that you can prove
- If you could also prove a less serious charge you can say, he has also committed the less serious
offence, but the prosecution is advised to pursue the most serious
- Conclude with a verdict at the end
Actus Reus
- Prohibited
- Conduct
- Circumstances
- Consequences
Omission
- No general duty to prevent harm (William Smith)
- Omissions
- Commission by omission (e.g. failing to wear seat-belt, failure to remove children’s hand
from penis, Speck)
- Breach of duty arising from
- Contract (Pittwood, Misra)
- Relationships
- Parent-child (Gibbins & Proctor)
- Ashworth:
- Outside of parent and dependent child we need AoR
- AoR can be based on living interdependently, minimum should be
calling emergency services
- Siblings
- Unclear
- Stone v Dobinson: D was guilty because V was sister and occupied room
in his house
- Ormerod: duty was owed through undertaking, nothing to do with
being a sibling
- Norrie: is being sister conjunctive or disjunctive with sharing a
room?
- Evans: not enough that D1 was V’s half-sister for the purposes of owing a
duty
- Ashworth: family connection alone not enough for GN manslaughter
- Cohabitants
- Ashworth:
- People living together should generate reciprocal duties (explains Stone
and Instan)
- Test: degree of interdependence and vulnerability of V (Ashworth)
- Assumption of Responsibility (Stone and Dobinson)
- D must know or ought reasonably to know that V was in a life-threatening situation
(Evans)
- Ormerod: this rule applies only where D cannot care for themselves
- Creation (Miller) or contribution (Evans) to danger
- Dealing drugs
- Distinguishing Evans and Kennedy
- Kennedy No 2 says drug-taking breaks the chain of causation
- Raised in Evans: said that the duty to care for V arose after drugs were
taken based on creation of danger
 - Problem: in Evans it was not D’s act but V’s act which created the
danger
- Solution: where D remains, present once V lapsed into
unconsciousness Evans applies
- But must mean new duty arises (not based on creation of
danger, but on AoR!)
- Dyson: court should apply either Kennedy No 2 or Evans to be consistent
- A mentally competent adult can release someone who owes him a duty, either before or at
the time that the duty would otherwise require action, even if it is contrary to his best
interests (Bland)

Causation
- Three elements: cause in fact, cause in law and no break in the chain of causation
- ‘Cause’ = accelerate
- No defence that V was already hurt if D’s conduct accelerated outcome (Re A)
- Causation in fact
- But-for test (White, V died from heart attack, not from poison, not a but-for cause, but guilty
of attempt)
- D under a legal duty to V, breaches that duty: death can only be attributed to D if the
child would have survived if it had received medical attention, but not if it might have
survived (Morby)
- Causal connection between culpable act and outcome (Hughes, Taylor)
- Hughes: uninsured, unqualified, unlicensed driving did not cause death: V stepped in
front of D
- Causation in law
- Operating and substantial cause (Smith). ‘Substantial’ = more than de minimis (Hughes)
- Can be indirect, e.g. D injured V which prevented V from life-saving surgery, D liable for
this
- Length of time is not important provided chain unbroken (AG’s Ref (No 3 of 1994))
- Multiple causes = multiple liability provided all Ds have contributed in a more than minimal
way
- Novus actus interveniens
- Cannot break chain if it merely complements or aggravates the effects of D’s initial conduct
- If D’s act is still operating and substantial, D is liable (Smith)
- Acts which generally do not break the chain of causation
- Victim’s acts?
- Drug-taking is Free Voluntary Informed but query Evans (Kennedy No 2)
- Acts which are not FVI:
- Reasonably foreseeable responses to D’s behaviour (e.g. flight/escape) (Roberts)
- Consider idiosyncrasies of V when assessing reasonableness of V’s response
(Williams and Davis)
- Blaue: was it reasonably foreseeable that a JW would refuse a blood
transfusion? Yes
- Refusal/withdrawal of medical treatment/maltreatment of wounds caused by D
(Blaue, Dear, Malcharek)
- Suicide or euthanasia, as a result of injuries by D (Wallace, Dear)
- Third parties
- Acts which are NOT free voluntary and informed:
- Where they’re a reasonably foreseeable consequence of D’s behaviour (Pagett:
shooting in self-defence)
- Medical negligence
 - Only where so independent of D’s acts and so potent, such that D’s acts could be
regarded as insignificant – high threshold (Cheshire)
- E.g. where doctor performs an operation that is not required
- E.g. medical staff give a manifest overdose of drugs or continue to give drugs
which V is shown to be intolerant to (Jordan)
- But Cheshire say Jordan was a ‘very exceptional case’
- Acts of nature must be extraordinary

Remoteness
- Can D be liable for the full extent of the injuries?
- D must take his victim as he finds him (Hayward)
- Applies to ‘whole man,’ not just physical man (Blaue, Lawton LJ)
- Unclear whether ‘whole man’ only refers to religious beliefs (ratio)
- Restricting to religious beliefs:
- Religion is not a FVI (Hart and Honoré)
- Offensive?
- Religious freedom is a human right
- But so is bodily integrity?
- Extending to all characteristics:
- What about important lifestyle choices, such as veganism?
- Some people are not religious
- More effective deterrent to make D liable for full consequences

Mens rea
Intention
- Jury can infer D’s intention from evidence (s8 Criminal Justice Act 1967)
- Basic meaning: ‘aim or purpose of producing a consequence’ (Moloney, Lord Bridge)
- Alternative is basic meaning cannot be proved: (Woollin, ratio is for murder, but been applied
beyond that)
- Virtually certain consequence of D’s actions?
- D realise this?
- Does the jury, in light of all the evidence, decide it is appropriate to find intent?
Recklessness
- D was (G v R, Cunningham for criminal damage):
- Aware of the risk at the time of the offence
- It was unreasonable to take the risk in those circumstances or
- D was not aware of the risk, but closed his mind to the obvious (Parker)
- Williams: to close your mind to a risk you have to be aware of it

Knowledge
- Actual knowledge is certainty of a consequence and is equivalent to intention
- Relevant to AR involving circumstances/consequences

Belief
- Virtual certainty can be described as belief
- Helpful in conspiracy or attempt

Strict liability
- No defence of honest belief under ss5 SOA (G), absolute liability
- Sweet v Parsley distinction between true crimes and regulatory offences.
 - Strict liability appropriate for regulatory offences
- Crimes to which a real social stigma is attached carry a strong presumption that MR is
necessary

General correspondence principle

- AR and MR must generally occur at the same time
- Exceptions
- Continuous act (Fagan v MPC)
- Continues as long as D is involved in crime (Le Brun)
- Series of acts (Thabo Meli)
- Prior planning is not required
- MR with regard to each of the possible acts suffices (AG’s Ref 4/80)

Transferred malice
- MR can transfer to AR against an unintended victim. Applies even if intended victim is yourself,
e.g. by shooting at X, D intends X to shoot back at him, and D’s intent can be transferred to V,
who X shoots instead of D (Gnango)
- Doctrine is only needed for specific intent crimes, otherwise we can use recklessness
- MR of a greater offence (murder) can be transferred to the AR of a lesser offence (GBH)
- D cannot be convicted if he acted with MR for one (category of) offence (e.g. OAP) but
unexpectedly commits AR of another category offence (CD), but can be convicted of recklessness
as regards the latter (separately) (Pembilton)
- Always two crimes:
- Attempt to commit intended offence
- Full offence involving the harm that occurred
- Irrelevant (as to MR) that intended outcome occurred in an unexpected manner (CA in AG Ref No
3 1994)
- Horder: extension of transferred malice: ‘prohibited outcome doctrine’
- Allows liability when
- V was not the intended victim
- Interest was not invaded or destroyed in the way intended
- Lord Mustill: must be some compatibility between the original intention and the actual
occurrence (Attorney General’s Reference (No. 3 of 1994))

INCHOATES
- Where the full crime has happened, just mention, if any difficulty proving the offence, he would
also be liable as an inchoate

Complicity attempts (ss.44-66 Serious Crimes Act 2007)

- AR: does an act capable of encouraging or assisting the commission of an offence (or one or
more offences under s46)
- s44: assisting and encouraging inchoate offences (s47(8)(c))
- By agreeing to commit a crime, D and P are also both liable under s.44 for encouraging
each other to encourage each other to commit a crime
- s46 covers a range of offences and D can be convicted for the most serious offence
anticipated (Sadique No 2)
- P’s offence does not need to be committed, liability is not derivative (s49(1))
- Means that withdrawal is not a defence
- D can assist and encourage an attempt
- D does not have to actually assist or encourage P
- D can be convicted even if it is not clear whether he was the accessory or the principal (s.58)
 - D can be convicted of the either anticipated offence or the reference offence, whichever is
most serious (s58)
- Includes indirectly assisting/encouraging P to commit an offence by arranging for X to do an
act that is capable of assisting/encouraging P (relevant for procuring) (s66)
- Encouragement: some communication which might induce, persuade or influence someone
to commit an act. Can be to a general audience, e.g. a Facebook post (Blackshaw)
- Assistance: making it easier for a crime can be committed
- Includes:
- Threatening or pressuring a person to commit an offence (s65(1))
- Acts that reduce the possibility of criminal proceedings being brought (s65(2)(a))
- Failing to take reasonable steps to discharge a duty (s65(2)(b)) (e.g. security guard fails
to switch on burglar alarm with intent to assist a burglary)
- A course of conduct (s67)
- Note: D is not liable if he merely fails to respond to a constable’s request for assistance
(s65(3))
- MR as to D’s conduct:
- s44: intention to encourage and assist an offence (s49(4-5)
- Unclear whether s44 includes conditional intention (i.e. if certain conditions are met)
- Not included in s49(7) but Turner thinks it applies
- D does not need to know P or V
- s45: positive belief his act will assist, and that P’s offence will be committed
- Belief that offence may be committed is not sufficient, but belief that it will be
committed if certain conditions are met is (s49(7))
- s46: positive belief that contemplated offences might be committed and that at least one or
will be; enough that one of a range of contemplated offences is committed
- Belief that offence may be committed is not sufficient, but belief that it will be
committed if certain conditions are met is (s49(7))
- MR as to P’s fault: s47(5)(a)
- D must either
- Believe P has MR
- Be reckless as to P’s MR
- Have done the act with fault if he were to do it
- Important for innocent agent
- e.g. if D believes P will act with the MR for assault occasioning ABH and P kills V, D will
not be guilty of encouraging or assisting murder
- MR as to consequences/circumstances: s47(5)(b)
- Where circumstances or consequences are part of P’s AR
- Belief or recklessness
- e.g. if at P’s request, D drives P to T’s house so that P can pick up some laptops, D knows T
is shady. He doesn’t believe the laptops are stolen but is aware of the possibility that they
are. D can be convicted because recklessness as to circumstances is enough
- Defences
- Impossibility?
- Not in the Act but was a defence to precursor offence of incitement and Ormerod thinks it
continues to be a defence
- So, if D tries to assist P to rob a house but gives him the wrong keys, he can rely on
impossibility, but could be an accessory to an attempt (Dunnington)
- Target of the offence (s51(1)) (narrow though, SOA)
- Reasonable belief that certain circumstances existed, and it was reasonable for him to act as he
did in those circumstances (s50(1), (2))
- LC example is someone who lets a speeding car overtake them on motorway
 - Another example would be law enforcement entrapping an offender. But, this would not stop
them being liable for the full offence (Yip Chiu Cheng)
Conspiracy (s1 Criminal Law Act 1977)
- AR: a concluded agreement between two or more people for a particular purpose, which
more than one intend to carry out and at least one in fact carries out, which if carried out, will
amount to an offence
- Concluded agreement: no conspiracy if negotiations fail to result in agreement (Walker)
- Intend to carry out: if only other party to the supposed agreement does not intend to carry it
out, there is no conspiracy, e.g. one of them intends to frustrate the conspiracy (Yip Chieu-
Chung)
- At least one party must commit the offence: e.g. an agreement between P and S to hire X
to kill V is not conspiracy because X is not party to the agreement
- Between two or more people: does not include spouses, a child, the intended victim – but
this does not prevent other parties being guilty of the offence
- Particular purpose: each party must be proved to have a shared common purpose or design
(Shillam)
- Can apply where D is the ‘object’ of the offence, e.g. D agrees with P for the supply to
him of a controlled drug or an obscene article
- Conditional agreements to commit an offence, e.g. an agreement to rob a bank tomorrow
if the coast is clear’ is a conspiracy (Saik), because if carried out to plan, will necessarily
amount to the commission of an offence
- Necessarily amount to an offence: can still be guilty of planned offence if not carried out
provided, if gone according to plan, it would’ve
- MR: D and at least one other party must intend the agreement be carried out and the
substantive offence be committed and have actual knowledge of any fact or circumstance
which is a necessary element of the offence
- Intent is ‘aim, purpose or want’
- Intend the agreement be carried out:
- Anderson: no need to prove D intended agreement be carried out
- Binding HL authority but not been followed
- McPhillips, Edwards and Yip Chiu Cheung held D must have intended to commit the
offence proper, e.g. if D does not actually intend to commit the offence cannot be
regarded as conspiring
- But could be convicted of assisting a conspiracy
- Substantive offence be committed:
- Anderson: Lord Bridge obiter: D must play some part in committing the offence
- Siracusa (CA): Lord Bridge didn’t mean this. D’s role can be passive, participation is
very broadly defined. Failing to stop the activity would suffice
- Otherwise, D could be liable for assisting a conspiracy
- Actual knowledge or intention of the facts and circumstances s1(2): D and at least one
other party to the agreement must have actual knowledge or intention of the
fact/circumstance constituting the AR (Saik)
- Intention:
- Knowledge fact or circumstance will exist at time of offence, e.g. where D1 and D2
agree to have sex with a woman that D3 has kidnapped, they know she hasn’t
consented
- Actual knowledge:
- Fact/circumstance exists at the time of the agreement, e.g. woman has already
refused to have sex with D1 and D2
- Belief?
 - Lord Nicholls: no
- Lord Brown: yes
- GA: ‘belief’ is a species of knowledge as to a future event so should be
- ≠ suspicion or recklessness
- Saik: Lord Nicholls: s1(2) clearly excludes recklessness/suspicion
- Unconditional intent?
- Lady Hale:
- Unconditional intent should suffice in s1(2) just as it does in s1(1)
- e.g. D1 and D2 agree to have sex with V, suspecting she will not consent,
but agreeing to have intercourse whether she consents or not
- They should be guilty of rape because they have agreed to go ahead even
if V does not consent.
- GA: agreed
- D1 and D2 must also have any requisite ulterior intent: e.g. for the offence of criminal
damage being reckless as to life being endangered, it is enough that D1 and D2 agree to
damage property, being reckless as to whether life is endangered (confirmed in Saik)
- Defences:
- Neither legal or physical impossibility are a defence to conspiracy (s1(1)(b) CLA), e.g. A
and B agree to murder V, who is already be dead, or to handle goods they wrongly but firmly
believe to have been stolen
- Can never be liable for an act D which isn’t a crime (Taafe)
- Overlap with SCA: any time a conspiracy cannot exist, it will fall under s44 because an
agreement by its nature is a form of encouragement (Jogee)
Attempts (Criminal Attempts Act 1981)
- AR: an act more than merely preparatory to the commission of an offence
- An act: cannot be an omission
- More than merely preparatory (question for judge)
- Must embark on the crime proper by starting or trying to start to commit it (Gullefer)
- General rule of thumb: usually involves confrontation with the victim or the property
(Tosti)
- Judge decides whether capable of being more than merely preparatory (4(3))
- Jury then decides whether D has embarked on the crime proper
- Examples:
- Putting a shotgun to the victim’s head (Jones)
- Inspecting a lock (Tosti)
- Attempted rape without D having physically attempted to penetrate V (AG Ref
No 1 of 1992)
- Not possible to attempt to conspire, aid, abet, counsel, or procure (s1(4))
- MR: direct intention
- Intent to commit an act which will amount to the commission of the substantive offence
(Khan)
- MR as to consequences: D must intend full consequences of his offence
- Constructive liability doesn’t apply, e.g. with murder, D must intend to kill not simply
to cause GBH (Whybrow)
- Conditional intention suffices (Husseyn, AG Ref (Nos 1 & 2 of 1979))
- MR as to circumstances
- Khan said: if recklessness as to circumstances (e.g. consent) suffices for the substantive
offence, it also suffices for attempt (Khan)
 - Pace: stricter approach but did not overrule Khan. (Mistaken) suspicion/recklessness
that goods were stolen was not enough: s1(2) requires ‘intent to commit all elements’ of
the offence
- Wheeler (facts similar to Pace): obiter: wilful blindness can constitute knowledge or
belief for purposes of MR as to circumstances
- Supported by s1(3)
- Reconcilable with Khan because wilfully turning a blind eye as to circumstances
can suffice to demonstrate intention
- Effective endorsement of Lady Hale’s (un)conditional intention
- Supported by Ormerod
- Allows us to keep Khan, which academics (Dyson etc.) support
- GA: if the substantive offence is specific intent (Pace and Saik) then actual
knowledge as to circumstances is required, but if substantive offence is one of basic
intent (such as rape) recklessness as to circumstances is enough?
- Defences
- No defence of mistaken belief as to circumstance (s1(3))
- Anderton v Ryan: mistakenly belief as to circumstances can be a defence
- Ignored statute
- Idea that causing harm is an essential prerequisite (e.g. ≠ if attempting to pick-
pocket and pocket is empty)
- Duff: good, should distinguish between dominant intentions and incidental but
mistaken beliefs
- Shivpuri overrules Anderton. Lord Bridge: distinction in Anderton was ‘incapable of
sensible application.’ Test: whether the act would have been more than merely
preparatory if the facts were as D believed them to be
- No withdrawal: once D has committed a more than merely preparatory act
- D can never be liable for an act he mistakenly thinks is a crime, which isn’t (Taafe)

SECONDARY LIABILITY
Joint perpetrators: where two or more people join in committing the same offence they are joint
perpetrators
- Respective liability depends on
- MR
- D1 and D2 both punch V
- D1 knows V has brittle bone disease but D2 does not
- D1 may be convicted of causing GBH with intent
- D2 could only be convicted of a s20 offence because of his ignorance of V’s disease
- Defences
- D1 and D2 beat V and kill him and D1 raises a successful plea of diminished responsibility
Innocent agency:
- If D uses innocent agent to procure (bring about) offence, D is P, even though SP commits the
crime (Michael)
- Innocent agent may
- Lack MR (incapacity, mistake, insanity etc)
- Have a defence
- Irrelevant that the SP that commits offence is not the SP initially procured by P (Michael, child,
not nurse, ended up giving baby poison)
Aiding, abetting, counselling and procuring (s8 Accessories and Abettors Act 1861)
- P: person who commits offence
- SP: who ‘aids, abets, counsels or procures the commission of the offence’ is ‘liable to be tried,
indicted, and punished as a principal offender’ (s8)
- If jury are sure it was P or SP but don’t know which, they can convict either of full substantive
offence (Giannetto)
- Includes inchoate offences: applies to all offences unless excluded by statute (Jefferson)
- Applies to attempts (Dunnington)
- Consider inchoate liability too
- AR: aiding, abetting, counselling and procuring
- Aid, abet, counsel:
- Trivial encouragement or assistance can suffice (Gianetto)
- No need to prove A was a but-for cause (Calhaem)
- Must assist or encourage every individual crime (Jogee)
- Spontaneous assistance and presence suffice
- Association and presence are relevant but not sufficient, it depends on the facts (Jogee)
- Aid: helping, supporting or assisting (Gamble)
- Abet: inviting, instigating or encouraging (Gamble)
- Counsel: advise and encourage before commission (Calhaem)
- Procure: produce by endeavour (A-G’s Reference (No. 1 of 1975))
- Causal link must be established (AG Ref No 1 1975)
- Relevant where linguistically impossible to say P is acting through A (IA), e.g. rape or
driving offences
- D’s MR can be added to P’s AR so as to make D liable as an accomplice for an offence
which D cannot personally perpetrate, and P doesn’t have MR to perpetrate (Bourne,
Millward)
- Must be a clear causal link
- P doesn’t need to know A’s act of procurement (e.g. secretly spiking P’s drink so he drives
dangerously) (AG Ref No 1 1975)
- Omissions which assist and encourage: (JF Alford)
- A has a right or power to control P and deliberately failed to prevent P committing an
offence, e.g. owner of car who sits in the passenger seat while another drives it dangerously
and undertakes no steps to prevent the dangerous driving
- A has a legal duty e.g. a parent who stands by and watches someone commit an offence
against his young child
- Procuring must involve an act
- P must commit an offence:
- Thornton v Mitchell: bus driver (P) had committed no offence because he was driving with
due care, it was conductor (A) who had misguided him and caused crash
- D cannot be convicted as an accomplice to an offence which has not been committed,
but may be guilty under SCA or conspiracy
- MR:
- MR as to D’s conduct: actual knowledge or intention (JF and Alford)
- MR as to consequences: indifference is enough (Jogee)
- e.g. if A sells P a gun, may be indifferent about whether V lives or dies, but he can still
be an aider and abettor
- MR as to circumstances:
- Actual knowledge for present crime (Jogee)
- Belief for future crime (Bryce)
- MR as to P’s fault: intention that P have MR for principal offence
- e.g. A intends P to punch V, P kills V, A only has MR for punching
- Conditional intent suffices:
- A does not need to know details of principal offence, enough that he knows facts
sufficient to indicate particular type of offence which will be committed (Bainbridge)
- A does not need to know in advance to specific form the offence will take (Maxwell)
- A can leave it to P to plan and carry out the specifics of the offence (Maxwell)
- Transferred malice applies: A encourages or assists P to kill X but P accidentally kills V, A can
be convicted as an accomplice to murder of V (Gnango)
 - Qualification: does not apply where A and P have agreed on a V and P deliberately (rather
than mistakenly) commits the offence against another V
- But doesn’t apply if P and A did not agree on a V
- Where P perpetrates a further offence:
- Jury should consider whether A expressly or tacitly agreed that P commit the further offence
if the occasion arose (i.e. if we get into a fight, P will stab V)
- If A must have foreseen that, in committing offence 1, P may go on to commit a further
offence, jury may infer that A had necessary conditional intent as to offence 2 (Jogee)
- More liberal test than Woollin as does not require virtual certainty
- D lesser liability than P:
- Where further offence is murder and A does not intend P to have the MR for murder (e.g.
intends P to commit ABH, not GBH), D may be convicted of constructive manslaughter
(provided requirements met) (Jogee)
- P lesser liability than A?
- Richardson: authority that A cannot be liable for a greater offence because A’s liability is
derivative of P’s
- Doubted in Howe
- Jogee emphasises that A’s liability is derivative of the P’s so doubts h
- Defences
- Overwhelming supervening act by P:
- Where offence is caused by an overwhelming supervening act by P which nobody in
A’s shoes could have contemplated and is of such a character as to relegate A’s acts to
history, A will bear no criminal responsibility (Jogee)
- Withdrawal: may remove responsibility for the completed offence, but A will still remain
liable for an inchoate offence
- Withdrawal of assistance must be unequivocally communicated (Becerra)
- Failure to turn up will not be sufficient (Rook)
- But if offence was spontaneous, withdrawal can be too unless A initiated it
(Mitchell)
- Greater the participation, the more that is required to demonstrate withdrawal. It is a
question of fact for the jury (O’Flaherty)
- Victims are not accessories: narrowly interpreted
- Only applies to ‘protected category’ of victims (Tyrell, Gnango)
- No common law rule precluding secondary liability for victims in general (Gnango)
especially where they aid and abet crimes against themselves (SC cited Brown)
- No liability to police where to entrap someone they: (Mullins)
- Provide the opportunity/temptation for offence
- Pretend to concur with criminal enterprise
- And offence is going to happen anyway
- But ≠ to murder
- But if a law enforcement officer instigates a crime which P would not otherwise have
committed, they can be liable as an accessory (Sang)

Assisting suicide (s2(1) Suicide Act 1961)

- AR: does an act capable of encouraging or assisting the suicide or attempted suicide of another
person (s2(1)(a))
- Can be liable whether a suicide or attempted suicide occurs
- MR: the act was intended to encourage or assist suicide or attempted suicide (s2(1)(b))
- D does not need to know or identify a specific victim or class of victims (s2(1A))

CRIMINAL DAMAGE ACT

- Basic criminal damage
- s1(1): without lawful excuse, D destroys or damages, any property belonging to another,
intending or being reckless as to whether such property would be destroyed or damaged
 - Damage: temporary or permanent but must involve physical harm or impairment of the
value or utility of the property: consider whether it will cost to remove the damage
- Belonging to another: s10(2): ‘custody or control’
- MR: s1(2)(a) aim purpose or want (Moloney) or recklessness (Cunningham)
- Caldwell: criminal damage involving any element of intent is a specific intent crime and
criminal damage involving recklessness a basic intent crime (HL authority with respect to
CD so should apply)
- Defence
- Mistake as to ownership (Smith)
- e.g. tenant removed wiring and didn’t know it had become landlord’s property
- But consider lesser MR of recklessness
- Not available for drunk mistake as to ownership if basic intent
- Statutory excuse: s.5(2) CDA 1971
- A person charged with criminal damage is to be regarded as having a lawful excuse if, at
the material time, he believed:
- (a) that the person whom he believed to be entitled to consent to the destruction or
damage had so consented, or would have done if he had known of the destruction
or damage and its circumstances or
- (b) that he needed to act in defence of property
- s5(3) it is immaterial whether such a belief is justified or not if it is honestly held
- Important!
- If D drunkenly damages another’s property believing the property to be his own or
not intending to damage property, he has no defence
- S5(3) can apply where D damages property:
- Drunkenly/delusionally believing that it belongs to a third party who would
consent to the damage, if he knew of the circumstances (Jaggard v Dickinson)
- Drunkenly/delusionally believing in need for self defence
- Magee: doubtful Jaggard is still good law in light of rules on voluntary
intoxication and mistaken belief in the need to act in self-defence
- Aggravated criminal damage
- Property does not need to belong to another and lawful excuse defence under s5 does not
apply
- MR: s1(2)(b): intention/recklessness to destroy or damage property intention or
recklessness as to endangerment of life
- Heard: as s1(2) is a crime of ulterior intent, voluntary intoxication defence can apply
- But obiter, widely criticised and is probably wrong
- Following Caldwell, any crime where recklessness is the MR, is a crime of basic intent.
HL authority with respect to CDA so should apply
- s.1(3): Arson

HOMICIDE
- If there’s a dead body, consider first whether it is murder
MURDER
- Definition: unlawful death with intent to kill or intent to cause GBH
- AR: action or omission causing death (AG’s Ref (No 3 of 1994))
- e.g. If D is under a legal responsibility to care for V, and D wants to kill V and fails to feed
her and she dies, that is murder by omission (Gibbons and Proctor)
- MR: constructive: intention to kill or cause GBH (Cunningham)
- Direct aim, purpose or want (Moloney) or Woollin test
PARTIAL DEFENCES to MURDER
- Voluntary manslaughter: relevant where D intends to kill
Loss of control (ss.54-56 Coroners and Justice Act)
- Definition: D must have lost control, due to a qualifying trigger and a reasonable person in his
situation would have done
- Loss of control: ‘loss of ability to act in accordance with considered judgment or a loss of
normal powers of reasoning’ (Jewell)
- Need not be complete, but D must be unable to restrain himself (Clinton)
- Does not need to be sudden (s.54(2))
- No defence if he acted in a considered desire for revenge (s.54(4))
- Due to a qualifying trigger: work separately or in combination
- (1) Fear of serious violence from V against D or another identified person
- (2) Things said or done by V which constitute circumstances of an extremely grave
character and cause D to have a justifiable sense of being seriously wronged – objective
test (Clinton)
- High threshold (LC example of parent coming home to find his child being raped)
- Sexual infidelity cannot be sole qualifying trigger, but can form part of wider context
and therefore could be relevant to the qualifying trigger (Clinton)
- A person of the D’s age and sex, with a normal degree of tolerance and self-restraint and in
circumstances of D must have reacted in the same or similar way as D did
- All of those characteristics that do not impact on the D’s capacity for tolerance or self-
restraint may be taken into account (s.54(3))
- Voluntary intoxication cannot be considered (Amelash)
- But defence is not precluded if a reasonable sober person would also have lost
control in the circumstances
Diminished responsibility (s.2 Homicide Act 1957)
- Definition: must be an abnormality of mental functioning, arising from a recognised medical
condition, which substantially impaired D’s ability and was a significant contributory factor
in causing D to act as he did
- Abnormality of mental functioning: medical evidence required (Brennan)
- Arising from a recognised medical condition
- Alcoholism (Stewart)
- Adjustment disorder caused by a stressor (Blackman)
- ≠ voluntary and temporary intoxication due to habitual drinking (Dowds)
- Substantially impairment of D’s ability to: understand the nature of his conduct, form a
rational judgement, or exercise self-control
- Jury direction only for borderline cases: the impairment must be ‘more than merely trivial’ to
be considered, but it is not the case that ‘any impairment beyond the trivial will suffice’
(Golds)
- Which is cause or significant contributory factor in causing the act
- Where D is both voluntarily intoxicated and has a mental impairment, question is whether
abnormality was a significant factor causing D to act as he did
Infanticide (s1 Infanticide Act 1938) (reduces sentence to infanticide)
- AR: a woman by any wilful act or omission causes the death of her child under 12 months old
- MR: at the time of the act or omission, the woman’s mental state was still unbalanced from
having giving birth or lactation

Suicide pact (s4 Homicide Act 1957)

- Manslaughter for a person acting in pursuance of a suicide pact between him and another

Involuntary manslaughter
Unlawful act manslaughter
- Definition: unlawful dangerous act which causing death
- Unlawful act
- Cannot be an omission (Lowe)
- Act must be a crime (Lamb)
- ≠ act which is lawful per se e.g. driving (Andrews v DPP)
- Includes administration of drugs (Cato)
- Consent to an unlawful act may render the act lawful and there will therefore be no base
crime for the manslaughter charge to attach to (cf Slingsby)
- Dangerous
- Must one which all sober and reasonable people would realise carried the risk of some
harm, albeit not serious harm (Church, Dawson)
- Offence against the person (battery, s18, 20, 47 OAPA) automatically fulfils
Church test
- Reasonable person shares any special knowledge D has (Watson) but does not share D’s
mistakes (Ball)
- Harm foreseen by the reasonable person must be physical or psychiatric harm, not mere
emotional disturbance (Dhaliwal). But covers physical harm which is induced by shock
(JM and SM)
- Causing death (AG’s Ref (No 3 of 1994))
- Does not need to be directed at V (AG Ref No 3), can include criminal damage or arson
(Goodfellow)
- MR: constructive
- Unclear whether you have to MR for the base crime: dicta in Newbury and AG Ref No 3 of
1994 are open to two interpretations:
- (1) No need for MR, just needs to be a voluntary act
- (2) D must have the MR for the unlawful act
- (2) is supported by Lamb which was not overruled in either decision and by JF
- Direct aim, purpose or want (Moloney), or recklessness (R v G)

Gross negligence
- D was under a legal duty (recall categories of legal duty)
- D breached that duty
- Standard can be raised (Misra), but appears it cannot be lowered (Stone and Dobinson)
- Objective test makes allowances the particular circumstances (e.g. emergency siutation)
- What about low IQ?
- Hart: test should take account of D’s ‘mental and physical capacities’
- Supported by Canadian Supreme Court
- D’s conduct is serious enough to amount to a crime (Adomako)
- Obvious risk of death (Misra)
- Conduct must be ‘truly exceptionally bad’ (Misra)
- Does not breach Art 7 ECHR, because this is a question of fact, not a question of law
- Ormerod: agrees because Art 7 only requires reasonable foreseeability of the law
Reckless manslaughter (Lidar)
- Relevant where there is no initial unlawful act
- AR: D kills V
- MR: recklessness
NON-FATAL OFFENCES AGAINST THE PERSON
ASSAULT (e.g. raising a fist, waving a knife or a gun)
- AR: act which causes another person to apprehend immediate and unlawful personal force
 - Cannot be an omission (Fagan)
- Words (Constanza) or silence may be sufficient (Ireland)
- Words can also negate what would otherwise be an assault (Savage) e.g. ‘I would
hit you, but the police are nearby’)
- Presence not enough (Smith)
- Apprehend: V does not have to be afraid for there to be an expectation. But if V does not
expect to be harmed, there is no assault (Lamb)
- Immediate: fear in a minute or two is enough (Ireland) but fear any time in the future is not
enough (Constanza)
- Unlawful:
- Prevailing view is that consent negates the AR (Barnes, Kimber) and obiter dictum to
the contrary by Lord Templeman in Brown is generally regarded as not surviving B
- Negate unlawfulness where V consents impliedly or expressly and D genuinely
believes V consents (Jones)
- All deemed to consent to everyday contact that is reasonable (Collins v Wilcocks)
- MR: intention (aim/VC) or recklessness (Venna)
BATTERY (e.g. touching, hitting, setting a trap, setting a dog on someone, spraying someone, an
unwanted kiss)
- AR: application of unlawful physical force
- Application: covers any unwanted physical contact
- Cannot be an omission (Fagan)
- But can be liable for creating a dangerous situation or continuous act
- e.g. by telling police officer he had no needles on him, when there was a
needle in his pocket, which pricked the officer’s finger (Santana Bermudez)
- e.g. DPP v K failing to remove sulphuric acid from the hand-dryer after
realising it was dangerous which caused V harm
- Can be indirect (DPP v K)
- e.g. spraying face, setting a dog on someone
- Unlawful:
- Prevailing view is consent negates AR (Barnes, Kimber) and obiter dictum to the
contrary in Brown is generally regarded as not surviving B
- V consents impliedly or expressly and D genuinely believes V consents (Jones)
- All deemed to consent to harmless or unavoidable everyday contact (Collins v
Wilcocks)
- Force: includes psychiatric (Burstow)
- MR: intention or recklessness (Parmenter and Savage)
s47 ASSAULT OCCASIONING ABH/aggravated assault or battery (e.g. loss teeth, cutting hair,
psychiatric harm, extensive or multiple bruising, minor fractures)
- Definition: an assault or battery which directly or indirectly causes some bodily harm (Ireland)
- Assault or battery: possible for an assault to cause bodily harm, such as by causing V to
flee and injure herself (Roberts)
- Some bodily harm: calculated to interfere with the health and comfort of the victim. Need
not be permanent, but not transient or trifling (Donovan)
- Unlawful
- Prevailing view is consent negates the AR (Barnes, Kimber) and obiter dictum to the
contrary in Brown is generally regarded as not surviving B
- D must be aware of V’s consent in order for it to be valid (Dadson)
- All deemed to consent to harmless or unavoidable everyday contact (Collins v
Wilcocks)
- Following Slingsby and Meachen, current rules of consent to ABH seem to be:
 - If actual bodily harm is foreseen and caused, victim’s consent is not valid
- If actual bodily harm is caused but not foreseen, victim’s consent is valid
- MR: constructive: intention or recklessness as to assault or battery

s.20 MALICIOUS WOUNDING or INFLICTING GBH (e.g. injuries resulting in permanent

disability, loss of sensory functions, visible disfigurement, broken bones, fractured skull, compound
fractures, BDSM)
- AR: directly or indirectly unlawfully wounding or inflicting GBH
- Direct or indirect includes indirect acts (Wilson, Burstow)
- Wounding: requires that both layers of the skin be broken (Eisenhower), from pin pricks to
wounds
- Infliction of grievous bodily harm: means cause, so can be direct or indirect (Burstow)

- Grievous: means really serious harm (DPP v Smith)

- Objective assessment for the jury based on the impact on the particular victim and
social standards
- V does not need to be in pain (Meachen)
- Examples:
- Bruises and abrasions on a baby can be GBH even if they would only be ABH
on an adult (Bollom)
- Recognised psychiatric injury (Burstow)
- HIV (Dica), herpes, gonorrhea
- Poisoning, but s23 would be more appropriate
- Unlawfully:
- Prevailing view is consent negates the AR (Barnes, Kimber) and obiter dictum to the
contrary in Brown is generally regarded as not surviving B
- Consent can only be a defence if a public interest exception applies (Brown) (see below)
- MR s.20: constructive: intending or being reckless as to causing some harm (Savage and
Parmenter)
- Means that if D know he may have a condition, but is not diagnosed, this may be enough for
reckless transmission
- MR s.18:
- Must prove D had the intent to do serious harm or to resist or prevent the lawful arrest of any
person
- ‘Malicious’ is relevant to the prevention of lawful arrest: e.g. if D trips a policeman up but he
suffers wholly unforeseen serious injury, D would not have acted maliciously

s.23 ADMINISTERING POISON to ENDANGER LIFE or CAUSE GBH

- AR: administer, cause to be administered or taken a poison or a destructive or noxious thing so as
thereby to endanger the life of such person, or so as thereby to inflict GBH
- Administer: three distinct offences (Kennedy (No. 2))
- D administers the noxious thing directly e.g. by injection, holding a glass to V’s lips,
spraying it in V’s face
- D causes an innocent third party administer it to V
- D causes the noxious thing to be taken by V and V does not make a voluntary and
informed decision to take it, e.g. D puts something in V’s food – requires ingestion
(Gillard), leaves gas tap open (Cunningham)
- Providing a drug or holding a tourniquet while V injects does not constitute
administration because it is FVI (Kennedy No 2)
- Poison: two ways something can be poisonous:
 - By its nature, e.g. arsenic. Automatically an offence even if quantity is so small that it is
incapable of doing harm (Cramp)
- By its quantity, e.g. chocolate, sugar, etc. but you would need to show you had put
enough in to make the person ill (Cramp)
- Noxious: something ‘injurious, hurtful, harmful, unwholesome,’ judged by the standards of
the victim (Marcus), e.g. bacon to a vegetarian
- Unlawful: cannot validly consent to being injected with a dangerous drug unless this done
for bona fide medical reasons (Cato)
- MR: constructive:
- Where the endangering of life or GBH is direct (e.g. by injection), there need be no MR as to
risk of injury (Cato)
- Where it is indirect (e.g. by causing V to inhale gas), foresight of some risk (i.e.
recklessness) must be proved
s.24 ADMINISTERING POISON with INTENT to INJURE, AGGRIEVE, ANNOY
- AR: (see above)
- MR: recklessness as to the administration of poison, and intention to injure, aggrieve, or annoy
- Does not have to actually injure, aggrieve or annoy (Hill)
- Intent can be to exploit the effect of the drug in order to injure, aggrieve or annoy e.g.
administering sleeping pills in order to commit rape (Hill)
- Intent to injure depends on whether D’s purpose is good or bad (Hill)
- e.g. if purpose is to sexually assault Vs, will satisfy as intent to injure
- If D slipped stimulants into V’s drink to help him complete a sponsored race for charity,
may not count as intent to injure

SEXUAL OFFENCES
Offences
- Non-consent offences all require that (a) C does not consent and (b) D does not reasonably
believe that C is consenting
- s1 Rape – intentional penile penetration by D of C’s vagina/anus/mouth
- s2 Assault by penetration – intentional sexual penetration by D of C’s vagina/anus
- s3 Sexual assault – D intentionally touches C and the touching is sexual
- s4 Causing sexual activity without consent – D intentionally causes C to engage in a sexual
activity
- The child sex offences in ss5-8 mirror the conduct in ss1-4 but the criminalising element is C’s
age (u.13), consent is legally irrelevant and there is strict liability as to C’s age (R v G)

s.1 RAPE
- Definition: intentional penetration of the vagina, anus or mouth of another person with the penis
without belief in the victim’s consent and without the victim’s consent (s.1(a-c))
- AR: penetration with penis, lack of consent
- Continuing act from entry to withdrawal (s.79(2)). If consent subsequently withdrawn, rape
may take place if the penis is not withdrawn accordingly (Kaitamaki)
- Includes vulva (s.79(5))
- Lack of consent (see below)
- MR: intentional penetration (s1(1)(a)) and no reasonable belief in consent (see below)
- Direct aim purpose or want (Moloney, per Lord Bridge)
s.2 ASSAULT BY PENETRATION
- AR: sexual penetration of the vagina or anus with a part of the body or anything else and lack of
consent
 - Penetration with anything by a man or woman
- Of the vagina or anus
- Sexual (see below)
- Lack of consent
- MR: intentional penetration, no reasonable belief in consent
- Direct aim, purpose or want (Moloney, per Lord Bridge)
- D must only have intended the penetration, not that that penetration be sexual
s.3 SEXUAL ASSAULT
- AR: sexual touching of another person, lack of consent
- Includes (s79(8)):
- Touching with any part of the body (s79(8)(a))
- Touching with anything else (s79(8)(b))
- Touching through anything (s.79(8)(c)), e.g. clothing
- No touching? = no offence, but may be attempt
- Ejaculation onto a victim without may constitutes a touching
- Lack of consent (see below)
- Must be sexual (see below)
- But does not need to be hostile
- V need not be aware
- MR: intentional touching, no reasonable belief in consent
- D is only required to have intended the touching, not that the touching be sexual
- Reckless touching not sufficient (Heard)
s.4 CAUSING a PERSON to ENGAGE in SEXUAL ACTIVITY
- AR: causing a person to engage in a sexual activity without consent whether or not D also
engages in it and whether or not D is present
- Causing a person: includes:
- Causing V to touch themselves sexually
- A female D forcing a male V to have sex with her
- D causing an innocent third party to have sex with V
- Causing V to prostitute herself
- Causation will be found if V engages in sexual activity because of violence, coercion or
threats by D
- What about if V is destitute and has sex for money: do they really consent? (Kirk)
- Activity: must be sexual
- Lack of consent (see below)
- MR: intentionally causing person to engage in sexual activity, no reasonable belief in consent
(see below)
- D need only have intended that the complainant engage in the activity not that the activity be
sexual

Sexual activity
- All offences except for rape require a sexual element (penile penetration is inherently sexual)
- s78(a): activity which is ‘by its nature sexual’ covers any touching of V’s private parts, even if
purpose was not sexual
- Old law: Tabassum: D’s examination of V’s breasts without valid consent (they wrongly
believed he was a doctor) was indecent assault even though it not for a sexual purpose
- s.78(b): activity which is sexual because of its circumstances or purpose
- Jury test (H):
- Did they as 12 reasonable people consider the touching could be sexual?
 - Did they as 12 reasonable people, and in all the circumstances of the case, consider that
the purpose of the touching had in fact been sexual?
Lack of consent (part of the actus reus of offences ss. 1- 4)
- In a PQ, consider the sections in this order:
- Section 76 – conclusive presumptions
- Section 75 – rebuttable presumptions
- Section 74 – general, catch all, definition
- Conclusive presumptions (s76) – not rebuttable - guilty
- Very restrictively applied because it is conclusive (Jheeta, B, Assange)
- Two circumstances:
- D intentionally induced C to consent to the relevant act by impersonating a person
known personally to her (Elbekaar: D impersonated C’s boyfriend)
- D intentionally deceived C as to the nature or purpose of the relevant act
- Limited to deceptions concerning the ‘act’, so very rarely applicable (Jheeta,
confirmed in Bingham)
- Even where a deception can fall within s76, CA use s74
- Assange: although sex without condom is a different kind of act which
may fall within a deception as to nature in s76, s74 should be used instead
‘because s76 provides for a conclusive presumption’
- Nature: like old case of Williams: D told C oral sex was an exercise to improve
breathing
- Purpose: where V thinks act is for one purpose (i.e. an experiment for impotence)
when it is for another (sexual gratification of D) (Green, as interpreted in Jheeta)
- But conflicts with Devonald where CA used s76 when D and C had a different
purpose (D’s purpose was humiliation, C’s was sexual gratification)
- If Jheeta applied there would have been no deception because C wasn’t
deceived as to sexual purpose
- Bingham said if there’s any doubt Jheeta applies, not Devonald
- Evidential presumptions (s75) – rebuttable if D adduces sufficient evidence
- Jury have to be sure that:
- D did the relevant act
- Any of the s75(2) circumstances existed
- D knew those circumstances existed
- If requirements are met and the presumption arises, D bears an evidential burden to raise the
issue of consent. Once evidence which is not merely fanciful is raised (Ciccarelli), consent
elements must be proved by P in the normal way and jury hears nothing of the presumption
(Mba)
- Circumstances (75(2)):
- D used violence against V or caused her to fear that immediate violence would be used
against her
- D caused V to fear that immediate violence would be used against a person other than V
- V was unlawfully detained; D was not
- V was asleep or otherwise unconscious
- V had a physical disability meaning she was unable to communicate to D whether she
consented
- Any person administered to V or caused to be taken by her without her consent, a
substance which was capable of causing V to be stupefied or overpowered at the time of
the relevant act
- If ss76 and 75 are not applicable go to s74
- General definition (s74)
- Consents if he agrees by choice, and has freedom and capacity to make that choice – common
sense question (Assange)
- Agreement by choice
- Include various states of mind, from positive desire to reluctant acquiescence, but
submission is not the same as consent (Olugboja, confirmed in Ali)
- Lack of consent does not need to be demonstrated or communicated (Malone)
- Freedom to make choice
- Pressures and grooming may negate consent (Jheeta, Ali)
- C’s apparent consent in light of the historical context (R v C)
- Where C is so desperately in need that she consents to sex for money, consent is not
genuine (Kirk)
- S74 rather than s76 should be used for active deceptions, even when they could
theoretically fall into s76 (Assange, Jheeta)
- Deprivation of consent – C agrees to have sex with D based on a condition and D
violates that condition, vitiates C’s consent (Assange, F)
- Assange – C consented on condition of condom use. D removed/damaged
condom, depriving C of consent
- F v DPP – C consented on condition of no ejaculation. D deliberately
ejaculated. C was deprived of choice which was crucial feature on which it
was based
- Extended to cases where there is no express conditional consent, but freedom of
choice is deprived by an active deception of a severe nature, such as gender
(McNally)
- Common-sense approach should be taken to which deceptions vitiate consent –
doesn’t apply to deceptions as to wealth but scope is unclear (obiter Leveson LJ in
McNally)
- Doesn’t apply to non-disclosure (B)
- Capacity to make choice
- ‘Capacity’ is undefined in the Act but concerns ability of C to comprehend the issues
and consequences involved with consent – a legal question (Wallerstein)
- Will automatically lack capacity if he: is too young/a child, or lacks mental
capacity
- Incapacity due to mental disorder (Cooper)
- Consent is context specific
- V must be able to understand the information relevant to making a decision
- V must be able to weigh that information in the balance to arrive at a choice
- When determining capacity, it is right to have expert evidence and apply MCA
– but not designed for criminal courts
- Incapacity due to intoxication (Bree)
- Capacity to consent can evaporate well before unconsciousness occurs, but
intoxicated consent is still consent. It’s a matter of fact and degree and will
vary depending on the person (Bree)
- If the victim’s intoxication was caused by the defendant, consent will probably
be vitiated
- Leave capacity to jury (Hysa)
Mens rea
- No reasonable belief in C’s consent (s.1(1)(c))
- Jury must determine whether
- D genuinely believed that the complainant was consenting, and (if so) whether that
belief was reasonable
 - To determine whether the belief was reasonable the jury must consider all the evidence
and circumstances including any steps taken by D to ascertain whether the complainant
consented (s.1(2))
- Belief in consent will not be reasonable where D:
- Knows C does not consent or
- Is careless as to whether C consents or
- Unreasonably believes C consents or
- Mistakenly believes C’s consent because of voluntary intoxication
- Test: would a reasonable sober person have made mistake (Grewal)
- Unless and until D’s state of mind amounts to insanity, beliefs in consent must be judged by
objective standards of reasonableness (B(MA))
- But court said that low IQ or demonstrated inability to recognise behavioural cues (such
as due to aspergers) may be relevant
DEFENCES
Automatism
- Involuntary action arising from external source or reflex action, which is completely
involuntary and is not self-induced
- External source: black-out or confusional state due to concussion (T), hypnosis (dicta in Quick),
hypoglycaemia (Quick), taking a medicinal ‘non-dangerous’ drug (valium in this case) that
neither D nor people generally think is dangerous (Hardie)
- Completely involuntary: must involve a complete destruction of self-control (AG Reference No
2)
- Not self-induced:
- Test: did he realise before becoming an automaton that his conduct may lead him to be
aggressive, unpredictable and uncontrollable? e.g. a diabetic failing to eat after taking insulin
(Quick, Bailey), smoking cannabis (Coley)
- Result: he must be acquitted on the grounds that the act was not his act at all

Insane automatism (Criminal Procedure (Insanity) Act 1964) (burden of proof on D)

- Insane at time of trial? Dealt with as unfitness to plead under s4 of the Criminal Procedure
Insanity Act
- At time of the offence, D had either a defect of reason and a disease of mind and did not know
the nature and quality of his act or that what he was doing was wrong (M’Naghten)
- Defect of reason: deprived of power of reasoning
- Disease of the mind: arising from an internal cause (Quick)
- Can be triggered by absence of an external factor e.g. medication (Hennessy)
- Includes sleep-walking (Burgess) and epilepsy (Sullivan)
- Did not know the nature and quality of his acts: D does not know what he is physically
doing e.g. cuts a sleeping person’s head off to see him look for it when he wakes up or
- D did not know the acts were against the law (Johnson)
- Does not apply to offences of strict liability (H)
- D must adduce evidence from two or more registered medical practitioners, at least one of them
who is approved to give such evidence
- Jury shall return a special verdict that D is not guilty by reasons of insanity (s1)

Infancy
- Under 10 years = complete defence of doli incapax (s16 Children and Young Persons Act 1963)
- Result: not guilty of an offence
- Over 10 years of age = judged by same principles of actus reus and mens rea as adults but are
sentenced differently (s34 Crime and Disorder Act 1998, interpreted in Re JTB)
Intoxication
- Must consider: automatism, in a murder, abnormality of mental functioning for purposes of
diminished responsibility
- First question: Did D have the MR even though he was intoxicated, i.e. did D know what he was
doing (Kingston) = no defence
- No MR? see categories below:
- Involuntary intoxication: complete defence of non-sane automatism (Hardie)
- Applies where:
- D does not form the MR
- D has been drugged or
- D takes a medicinal drug and is unaware of its side effects and the side effects are not
known to be dangerous, e.g. valium (Hardie)
- Voluntary intoxication of dangerous drugs (alcohol/illegal drugs): defence to specific intent
crimes
- D knows the substance is ‘dangerous’ but not how strong it is = voluntary (Allen)
- D knew drug might make them behave oddly = voluntary (Bailey)
- Specific intent: intoxication can be a defence and D may be convicted of a lesser offence
(e.g. manslaughter instead of murder) or no offence at all (in cases of theft) (Majewski)
- Unclear what ‘specific intent’ means
- Majewski: specific intent means crimes with a purposive element
- Obiter dicta in Heard: ‘specific intent’ = purposive (direct) intent and ulterior
intent
- Strong element of policy involved
- Caldwell: look at wording of the charge
- Specific intent crimes:
- Murder
- S18 wounding/GBH with intent
- S.1(1) intentional criminal damage
- S1(1) and 1(3) intentional arson
- Criminal damage with intent to endanger life s1(2) and s1(3) CDA
- Arson with intent to endanger life s1(2) and s1(3) CDA
- Handling stolen goods
- Attempts
- Possibly secondary liability (Clarkson)
- Basic intent: intoxication is no defence, so long as it can be proved that D would have
appreciated that risk if D was sober, i.e. drunks can have accidents too (Majewski,
Richardson and Irwin)
- Basic intent crimes:
- Reckless criminal damage and arson
- Common assault
- S.47 assault occasioning actual bodily harm
- Manslaughter
- S.20 wounding/GBH
- Reckless arson/criminal damage
- Arson/criminal damage being reckless as to whether life would be endangered
- Rape
- Sexual touching s.3 (Heard)
- ‘A drunken accident is still an accident’ (Heard)
- Intoxication and other defences
- Mistake: = no defence to crimes of basic intent (Fotheringham)
 - Duress: = no defence (Hasan)
- Self-defence: = no defence (O’Grady)
- Consent in OAPA? Aitken and Richardson suggest that Ds can rely on a mistaken belief due
to voluntary intoxication, regardless of whether offence is one of specific or basic intent
- But disapproved by LC
- Inconsistent with rule that intoxication is no defence to a crime of basic intent
(Fotheringham)

Consent
- Burden of law is in favour of it being part of the AR (Barnes, Kimber)
- D needs to be aware that the justification exists in order for his act to be justified (Dadson)
- Can be express or implied/inferred from the circumstances, but just by being in a certain place
(e.g. public toilet) is not enough (H v CPS)
- e.g. in Aitken because V had previously taken part in the horseplay = implied consent
- Generally, consent only operates as a defence to assault and battery (AG’s Reference No 6 of
1980, Brown) never a defence to murder (Bland), assisted suicide (Nicklinson) or GN
manslaughter (Andrews)
- ABH or worse
- D did not intend or foresee ABH or worse and V consented to assault/battery = consent
valid (Slingsby, Meachen)
- D intended, foresaw or was reckless as to causing ABH or worse, consent may be
available if a public interest exception applies (AG’s Reference No 6 of 1980, Brown)
- Sports, including violent sports and organised games where injuries arise from acts
within the normal course of play (Barnes)
- Unreasonable behaviour which is sufficiently grave to be criminal cannot be
consented to (Barnes)
- Consider following factors (Barnes)
- Level of sport e.g. professional/amateur
- Nature of D’s behaviour
- D’s state of mind
- Amount of force used
- Tattooing, ritual circumcision of males, ear piercing and personal adornment
(Wilson)
- Religious mortification (Brown)
- Rough play (Jones, Aitken)
- Surgery carried out by a medically qualified person (BM)
- Dangerous exhibitions e.g. sword fights or circus acts (Brown)
- Transmission of risk of an infection (D doesn’t need to know which STD) where
the risk is actually disclosed to V (Konzani) and V consents to the risk itself and
not just sex (Dica)
- D must disclose explicitly
- D must inform V where he knows he may be a risk but has not been diagnosed
because s20 only requires risk of some harm
- Vigorous sexual activity where there is no foresight of ABH or worse
- No set rules (Meachen, obiter)
- If nature of the act is considered too violent, consent will not operate as a
defence (Emmett)
- Acts not recognised under the public interest exception:
- BDSM (Brown)
- Body modification (BM)
- Fist fights (AG No 6)
 - Unless there is a close analogy with an existing exception to the general rule
established in Brown, any new exception is for Parliament to introduce (BM)
- Requirements for valid consent in OAP
- D honestly believes V consents
- D’s belief need not be reasonable (provided that it is honestly held) and may be
mistaken due to intoxication in cases of OAPA (Aitken)
- V must have freedom and capacity to consent (Tabassum approved in Dica)
- V must not be induced to consent by mistake, whether by D’s deception (Richardson) or
a self-induced deception as to the nature or quality of the act or D’s identity (Tabassum
approved in Dica)
Mistake
- Mistake may negate the mens rea if it is a genuine mistake of fact (Morgan)
- If D kills V, believing him to X, still guilty of murder as she intended to kill a person and that
is MR of murder
- If D kills V, believing him to be a bear, she is not guilty of murder because she intended to
kill an animal not a person
- D can be mistaken as to V’s age in a sexual offence against a girl aged 13 ( B), and aged 14 (K)
provided it is honestly held
- Approach to reasonableness of mistakes can be slightly different depending on what mistake is
about:
- Gladstone Williams: mistaken belief in need for self-defence does not need to be genuine as
long as it is reasonable
- Martin: although a belief that self-defence was necessary did not have to be reasonable D’s
response to the attack does have to be
- Graham: belief in circumstances constituting duress has to be reasonable

Duress (complete defence)

- Construed restrictively because it is easy to abuse (Hasan, Lord Bingham)
- Defence at common law to all crimes except murder, attempted murder and secondary liability to
murder (Gotts, Howe) but it is a defence to conspiracy to murder (Ness)
- Two types of duress:
- Duress by threats
- Threatens to kill or cause serious harm if D does not do as directed. D commits the
offence
- Duress of circumstances
- No person directs D to commit an offence, but circumstances are such that death or
serious harm will result if D does not offend (Conway, Martin)
- Same requirements as duress by threats (Conway)
- Requirements:
- Threat of death, serious injury or rape to D’s person (Hasan)
- Does not include psychiatric injury (Baker) or threats of pain (Quayle)
- External to D (Quayle)
- Leaving no reasonable evasive action open to D
- Unless death or serious harm is to follow ‘immediately or almost immediately,’ D is
likely to have had an opportunity to escape the threat
- Directed at D, immediate family, a person close to him or a person for whose safety he
would regard himself as responsible (Hasan)
- Direct causal link
- But-for test applies (Valderrama-Vega)
- Belief in threat and response are assessed objectively, two limb test (Graham)
- Belief must be objectively reasonable and subjectively genuine (Hasan)
 - A sober person of reasonable firmness, showing the characteristics of D must have
responded in the same way
- Characteristics: pregnancy, age, sex, physical disability, a recognised mental
illness, mental impairment or psychiatric condition, such as PTSD leading to
leaned helplessness (Bowen)
- ≠ low IQ or self-induced abuse (Bowen)
- But Antar: psychological evidence of defendant’s low IQ and unusual
suggestibility was admissible
- Simester and Sullivan: this makes the objective test incoherent
- Only able to rely on duress for as long as offence is necessary to escape threats (Mullally)
- Cannot rely on duress when, as a result of voluntary association with others engaged in
criminal activity, he foresaw or ought to have foreseen risk of being subjected to compulsion
generally (Hasan) – objective test
- Lord Bingham: could only lose the defence if you join an existing criminal gang
- But the CA in Ali thought it extended to any bad company where there was a
foreseeable risk of compulsion to commit crime by threats of violence
- Lady Hale: merely foreseeing violence is too harsh and could affect women in
relationships with criminals. Should have to foresee that they might be coerced into
committing a crime. Rejected in Harmer
Self-defence and the prevention of crime (Criminal Justice and Immigration Act 2008)
- S3 of Criminal Law Act 1967: a person may use such force as is reasonable in the circumstances
in the prevention of crime or in effecting or assisting a lawful arrest
- Defence depends on the threat and the response:
- Threat to property
- V threatens property and D damages property to ward off threat
- Statutory defence under s5 Criminal Damage Act 1971
- V threatens property and D violates V’s bodily integrity to ward off threat
- Statutory defence under s3 of the Criminal Law Act 1967 if threatened act is a crime
- Common law defence of defence of property
- Unjustified, imminent threat to the property of D or another (Faraj)
- D must use force that is necessary and is not disproportionate, and D must
know of the threat posed by V
- s76 householder provision does not apply to defence of property
- Threat to person
- V threatens person and D damages property to ward off threat
- Statutory defence under s3 of the Criminal Law Act 1967 if threatened act is a crime
- Requires reasonable belief
- Common law defence of self-defence
- V poses a threat to a person and D violates bodily integrity to ward off the threat
- Statutory defence under s3 of the Criminal Law Act 1967 if threatened act is a crime
- Can be any crime, but D must know that V is committing a crime (Dadson)
- Requires reasonable belief
- Common law defence of self-defence
- Requirements:
- A threat to a person or another which is:
- Unjustified (Jones)
- No defence available against a police officer who is effecting lawful arrest
(Browne)
- Extends to innocent/non-criminal acts performed with no good reason – but
would be unable to rely on s3 because not a crime (Re A)
 - D cannot rely on self-defence if he started the fight (Balogun), but mere fact
that D went somewhere to exact revenge from V does not preclude reliance on
self-defence if violence ensues (Rashford)
- Can be mistaken and unreasonable as long as belief is genuine (Gladstone
Williams) – but not under s3 CLA, belief must be reasonable
- Mistaken belief can be relied on even when D has a delusion (Oye) but it
cannot be relied on when assessing the level of force used by D (see below)
- Cannot be relied on where D is drunk (O’Grady)
- LC proposed abolition of rule in O’Grady and there is nothing in
Gladstone Williams to show that this exception was intended
- Imminent (Devlin v Armstrong)
- Present (Clegg, Martin)
- Offence known to D (Dadson)
- D must use force which is:
- Against V or an innocent third party, but this may affect whether the force they
used was reasonable (Hichens)
- Necessary – judged subjectively (s76(4))
- Must be no reasonable alternative to using force, such as retreat (Bird)
- S76 of the Criminal Justice and Immigration Act 2008 set out detailed criteria to
assess whether force used under s3 of the CLA or for common law self-defence
was reasonable:
- Reasonable – judged on facts as D believes them to be (s76(3), s3(1))
- Honest belief that D acted for a legitimate purpose is strong evidence that
use of force was reasonable (s76(7))
- That D may be acting ‘in the heat of the moment’ may be taken into
account s76(7))
- No legal requirement to retreat but failure to do so is something jury can
consider when deciding reasonableness (Bird)
- Anticipatory/defensive action may be reasonable (Devlin v Armstrong)
- But further in advance the attack is, less likely anticipatory action
can be justified (Kichens)
- Original aggressor may rely on defence if original victim’s response ‘was
so out of proportion to what the original aggressor did that in effect the
roles were reversed’ (Keane)
- Cannot rely on following when assessing whether level of force used is
reasonable:
- Voluntarily intoxication s76(5))
- Extends to cases where D is suffering from the ‘immediate and
proximate consequences’ of abusing drink or drugs (Taj)
- Delusions (Oye)
- Psychiatric conditions (Martin)
- Note: these factors may support a defence of diminished
responsibility
- Proportionate
- Separate limb of test (Collins)
- Householder cases (s76(8A-F)
- Only extend to defence of person, not defence of property
- Test: grossly disproportionate in the circumstances as D believed
them to be, e.g. headlock causing serious injuries was not grossly
disproportionate (Collins)
- But level of force must still be reasonable (s76(3))
 - Non-householder cases (s76(6))
- Test: disproportionate in the circumstances as D believed them to
be, e.g. soldier shooting at car after it passed NI checkpoint was
disproportionate (Clegg)

- Necessity
- General defence unless expressly or impliedly excluded by statute (Shayler)
- Necessity can operate as a defence to lack of consent (Re A: Conjoined twins, F v West
Berkshire Health Authority)
- Instances where necessity has been allowed as a defence:
- Throwing cargo overboard to save a barge (Mouse’s case)
- An operation which would result in the death of one twin was allowed in order to save
the life of the other (Re A: Conjoined Twins)