Criminal law 1 Case Summaries | Michael Rivera

Table of Cases

Worksheet 1 Cases (Nature & Function of Law) ................................................................. 6

Woolmington v. D.P.P. (1935) A.C. 462 .............................................................................................. 6
R v. Price (1883-84) 12 Q.B.D. 247 (missing) ...................................................................................... 7
Shaw v. D.P.P (1962) A.C. 220 ............................................................................................................. 7
Knuller v D.P.P. (1972) 2 All E.R. 898 ................................................................................................... 7
R v. Brown (1993) 2 All E.R. 75 ............................................................................................................ 8
Kendall & Others v. Khan (1979) 26 W.I.R. 433 .................................................................................. 9
Chief of Police and another v Nias (2008) 73 W.I.R. 201 .................................................................... 9

Worksheet 2 Cases (Elements of a Crime – Actus Reus) ................................................... 10

R v Larsonneur (1933) 24 Cr.App. Rep. 74 ........................................................................................ 10
Lim Chin Aik v The Queen (1963) A.C. 160........................................................................................ 10
R v Instan (1893) 1 Q.B. 450; 17 Cox C.C. 602................................................................................... 10
R v Pitwood (1902) T.L.R. 37 ............................................................................................................. 11
R v Gibbins and Proctor (1918) 13 Cr. App. Rep. 134........................................................................ 12
R v Stone; R v Dobinson (1977) 2 All E.R. 341 CA .............................................................................. 12
R v Miller (1983) 2 A.C. 161; (1983) 2 W.L.R. 539 HL ........................................................................ 12
In Re: B (A Minor) (1981) 1 W.L.R. 1421 (missing) ............................................................................ 13
Airedale NHS Trust v Bland (1993) 1 All E.R. 82 ................................................................................ 13
R v White (1910) 2 K.B. 124; 22 Cox C.C. 325 ................................................................................... 14
R v Jordan (1956) 40 Cr.App. Rep. 152 ............................................................................................. 14
R v Smith (1959) 2 Q.B. 35; (1959) 2 All E.R. 193; (1959) 2 W.L.R. 623; 43 Cr. App.Rep. 121 ......... 15
R v Blaue (1975) 1 W.L.R. 1411; (1975) 3 All E.R. 446; 61 Cr.App. Rep. 269..................................... 16
R v Cato [1976] 1 WLR 110................................................................................................................ 17
R v Cheshire (1991) 3 All E.R. 670...................................................................................................... 17
R v Williams (1992) 2 All E.R. 183 C.A. .............................................................................................. 18
R v Dear [1996] Crim LR 595 ............................................................................................................. 19
R v Corbett [1996] Crim. L.R. 594 CA................................................................................................. 19

Worksheet 3 Cases (Elements of a Crime - Mens Rea) ..................................................... 19

R v Sharp [1857] 26 LJMC 47 ............................................................................................................. 19
AG’s Reference (No 1 of 2002) [2002] 3 All E.R 1, HL ....................................................................... 20
AG v Scotcher [2005] UKHL36 ........................................................................................................... 20

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Wai-Yu-Tsang v R [1992] 1 AC 269 .................................................................................................... 20

Hyam v DPP [1975] A.C. 55 ............................................................................................................... 21
R v Moloney [1985] A.C. 905............................................................................................................. 21
R v Hancock & Shankland [1986] A.C. 455 ........................................................................................ 22
R v Nedrick [1986] 3 All E.R 1; [1986] 1 W.L.R. 1025 ........................................................................ 22
R v Woolin [1998] 4 All E.R. 103........................................................................................................ 23
R v Woolin [1998] 4 All E.R. 103........................................................................................................ 24
R v Matthews and R v Alleyne [2003] 2 Cr. App. R. 30 ..................................................................... 24
R v Cunningham (1957) 2 Q.B 396 .................................................................................................... 25
R v Caldwell (1981) 1 All E.R. 96........................................................................................................ 25
R v G and R [2003] UKHL 50 (overrulling Caldwell) ........................................................................... 26
R v Pembilton [1874] L.R. 2 C.C.R. 119.............................................................................................. 27
R v Latimer [1886] 17 Q.B.D 359 ....................................................................................................... 27
R v Mitchell [1983] 2 W.I.R 983 ........................................................................................................ 28
Attorney General’s Reference (No. 3 of 1994) [1997] 3 All ER 936 .................................................. 28
Thabo Meli v The Queen [1954] 1 W.I.R. 228 ................................................................................... 29
R v Church [1966] 1 Q.B. 59 .............................................................................................................. 30
R v Le Brun [1992] 1 QB 61 (CA)........................................................................................................ 30
DPP v Morgan (1975) 2 All E.R. 347 ................................................................................................. 31
Beckford v R (1988) A.C. 130; (1987) 3 All E.R. 425 .......................................................................... 31
B v Dpp [2000] 1 All E.R 833 .............................................................................................................. 32
Esop (1836) 7 C& P 456 ..................................................................................................................... 32

Worksheet 4 Cases (Negligence, Strict Liability, Vicarious Liability).................................. 32

McCrone v Riding [1938] 1 All E.R. 157 (missing) ............................................................................. 32
R v Bateman [1925] 19 Cr. App R 8 ................................................................................................... 32
Andrew v D.P.P. [1937] A.C. 576 ....................................................................................................... 33
R v Prentice [1994] Q.B. 302 ............................................................................................................. 33
R v Adomako [1994] 3 W.L.R. 288..................................................................................................... 33
Tolson (1889) 23 QBD. 168; 16 Cox CC629 ....................................................................................... 34
Prince (1875) 13 Cox CC 138 ............................................................................................................. 34
Sweet v Parsley (1970) 2 W.L.R 470 .................................................................................................. 35
Pharmaceutical Society of Great Britain v Storkwain LTD (1986) 2 All E.R 635 ................................ 35
B (a minor) v DPP [2000] 2 W.L.R 452 HL .......................................................................................... 36
Gammon (Hong Kong) Ltd. V. AG (1984) 2 All ER 503 ...................................................................... 36

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R v K [2001] 3 All ER 897 HL .............................................................................................................. 37

Sheppard (1980) 3 All ER 899 ............................................................................................................ 37
Alphacell v Woodward (1972) AC 824 .............................................................................................. 38
Wings Ltd. V Ellis (1985) AC 272 (HL) ................................................................................................ 39
Warner v Metropolitan Police Commissioner (1968) 2 All ER 635 ................................................... 40
Cundy v Le Cocq (1884) 1 QBD 207 ................................................................................................... 40
Sherras v Derrutzen (1895) 1 QB 918 ............................................................................................... 41
Hobbs v Winchester Corporation (1910) 2 KB 417 ........................................................................... 41
Vane v Yiannopoulus [1965] AC 486 ................................................................................................. 41
Mousell Bros. Ltd. V London & Northwestern Ry. Co. [1917] 2 KB 836 ........................................... 42
Tesco Supermarket v Nattrass [1972] AC 153 .................................................................................. 42
Furguson v Weaving [1951] 1 All ER 412 .......................................................................................... 43
Allen v Whitehead [1930] 1 KB 211 .................................................................................................. 44
Coppen v Moore [1898] 2 QB 306 ..................................................................................................... 44

Worksheet 5 Cases (General Defenses Part 1) ................................................................. 44

Walters v Lunt [1951] 2 All E.R. 645.................................................................................................. 45
C v DPP [1996] 1 A.C. 1...................................................................................................................... 45
Walton v R (1977) 3 W.L.R. 902 ........................................................................................................ 45
M’Naughten Case [1843] 10 C.I and F. 200....................................................................................... 46
R v Sullivan [1984] A.C. 156 .............................................................................................................. 47
R v Kemp [1957] 1 Q.B. 399 .............................................................................................................. 48
R v Windle [1952] 2 Q.B. 826 ............................................................................................................ 49
R v Burgess [1991] 2 Q.B. 92 ............................................................................................................. 49
R v Hennessy [1989] 1 WLR 297........................................................................................................ 50
R v Quick and Paddison [1973] Q.B. 910........................................................................................... 51
Bratty v AG of Northern Ireland [1963] A.C. 411 .............................................................................. 51
Burgess (1991) 2 Q.B. 92 ................................................................................................................... 52
Broome v Perkins [1987] 85 Cr. App. Rep 321 .................................................................................. 52
DPP v Beard [1920] A.C. 479 ............................................................................................................. 53
R v Kingston [1994] 3 W.I.R. 519 ....................................................................................................... 54
Attorney General for Northern Ireland v Gallagher [1963] A.C. 349 ................................................ 54
DPP v Majewski [1977] A.C. 433 ....................................................................................................... 55
R v Richardson and Irwin [1999] Crim LR 494 CA.............................................................................. 56
R v Lipman [1970] 1 QB 152 CA ........................................................................................................ 56

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Worksheet 6 Cases (General Defenses part 2) ................................................................. 57

Beckford v R [1998] A.C. 130............................................................................................................. 57
Palmer v The Queen 16 W.I.R. 499 PC .............................................................................................. 58
R v Owino [1996] 2 Cr. App. R. 128 (CA) ........................................................................................... 58
Attorney General’s Reference (No. 2 of 1983) [1984] QB 456 ......................................................... 58
Re A (Conjoined twins: Medical Treatment) [2001] 1 FLR 1 CA........................................................ 60
Martin v R [2001] EWCA Crim 2245 .................................................................................................. 61
R v Gladstone Williams [1984] 78 Cr. App. R. 276 ............................................................................ 62
DPP v Morgan [1976] AC 182 (HL) .................................................................................................... 63
Williams (1983) 78 Cr. App. R. .......................................................................................................... 63
R v Kimber [1983] 1 WLR 118 (CA) .................................................................................................... 64
R v Lee [2001] 1 Cr. App. R 19 CA ..................................................................................................... 65
R v Howe [1987] AC 417 (HL) ............................................................................................................ 65
R v Gotts [1992] 1 All ER 832 ............................................................................................................ 66
R v Hasan [2005] UKHL 22 ................................................................................................................. 66
R v Hudson and Taylor [1971] 2 QB 2002 CA .................................................................................... 67
R v Abdul – Hussain and Others [1999] Crim LR 570 CA ................................................................... 67
R v Graham [1982] 1 All ER 801 ........................................................................................................ 68
R v Shepherd [1987] 86 Crim. App. R 47 ........................................................................................... 69
R v Sharp [1987] QB 853 ................................................................................................................... 69
R v Bowen [1996] 2 Cr. App. R. 157 (CA)........................................................................................... 70
R v Dudley & Stephens [1884] 14 QBD 273 ...................................................................................... 70

Worksheet 7 Cases (Accomplice Liability) ........................................................................ 71

Salmon [1880] 6 QBD 79 ................................................................................................................... 71
Mohan v R [1967] 2 AC ..................................................................................................................... 72
Wilcox v Jeffrey [1951] 1 All ER 464 .................................................................................................. 72
R v Coney & Others [1882] 8QBD 534 .............................................................................................. 73
R v Clarkson [1971] 3 All ER 344 ....................................................................................................... 74
Attorney General’s Reference (No. 1 of 1975)[1975] 2 All ER 684 ................................................... 74
R v Bainbridge [1960] 1 QB 129 ........................................................................................................ 75
Ferguson v Weaving [1951] 1 KB 814 ............................................................................................... 76
Becerra [1975] 62 Cr App R 212 ........................................................................................................ 76
Croft [1944] 1 KB 295 ........................................................................................................................ 77

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R v Saunders & Archer [1576] 2 Plow 473 ........................................................................................ 77

Hui Chu Ming v R [1991] 3 All ER PC ................................................................................................. 77
R v Tyrell [1894] 1 QB 710 ................................................................................................................. 78
Pickford [1995] 1 CAR 420 at 428 ..................................................................................................... 78
Stewart & Schofield [1995] 1 CAR 441.............................................................................................. 79
R v Powell & Another, R v English [1997] 4 All ER 545...................................................................... 80
DPP for Northern Ireland v Maxwell [1978] 3 All ER 1140 ............................................................... 80
R v Jogee [2016] UKSC 8.................................................................................................................... 81

Worksheet 8 Cases (Inchoate Offences) .......................................................................... 82

R v Most [1881] 7 QBD 244 .............................................................................................................. 82
R v Whitehouse [1977] QB 868 (CA) ................................................................................................ 82
R v Curr [1968] 2 QB 944 (CA) ........................................................................................................... 83
Haughton v Smith [1975] AC 476 ...................................................................................................... 83
R v McDonnell [1966] 1 QB 233 ........................................................................................................ 84
Dpp v Nock [1978] 2 All ER 654 ......................................................................................................... 84
R v Sailsman (No 1) [1963] 5 WIR 514............................................................................................... 84
R v Ingleton and Warren [1959] 1 WIR 129 ...................................................................................... 86
The State v Sharma and Williams [1977] 25 WIR 166 ...................................................................... 86
Dpp v Stonehouse [1977] 3 WLR 143 ............................................................................................... 88
R v Whybrow [1951] Cr App R 141................................................................................................... 90
Erskine v Goel [1977] 25 WIR 78 ....................................................................................................... 91
R v Shivpuri [1987] AC1 (HL) ............................................................................................................. 92
Anderton v Ryan [1985] AC 560 ........................................................................................................ 92

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Worksheet 1 Cases (Nature & Function of Law)

Woolmington v. D.P.P. (1935) A.C. 462
Issue
Whether Woolmington was denied his right to the presumption of innocence.
Decision
Appeal allowed plea of not guilty - no new trial.
Reasoning
The House of Lords hold that the jury instruction means that the onus is on Woolmington to
prove that he did not intend to kill his wife. This seems to have obviously violated the
presumption of innocence principle in criminal law. The judge got this definition from
Halsbury's "Laws of England", however it came from a time before there was a criminal court
of appeal, and before the accused was even allowed to testify. They state that the presumption
of innocence is the "golden thread" that holds the criminal law together, and that it must be
given the highest accord. In order to prove the charge, the Crown must prove both that he
murdered his wife, and that he intended to do it beyond a reasonable doubt.
They also say that the Court of Appeal was wrong to dismiss the appeal; the proviso can only
be used when you can reasonably say that a jury would have come to the same conclusion if
they had been properly directed. The House of Lords does not think that this is the case here
and therefore, a new trial with a proper charge to the jury is ordered.
Ratio Decidendi
• The presumption of innocence is the most important thing in criminal law and cannot
be ignored.
• The burden of proof in criminal matters is that the prosecution must prove the
Defendant's guilt beyond a reasonable doubt.
• Section 686(b)(iii) can only be used to keep a decision even though a wrongful
direction of the jury has occurred if it can be said that the jury would have come to the
same conclusion with the correct guidance.

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R v. Price (1883-84) 12 Q.B.D. 247 (missing)

Shaw v. D.P.P (1962) A.C. 220

Conspiracy to Corrupt Public Morals – Prostitution – Public Morals – Court’s Ability to
Create New Offence
Facts
The defendant created magazines, which contained personal adverts for prostitutes. This
included their personal contact details, photographs and descriptions of their services. The
solicitation of prostitution was now illegal by virtue of the Street Offences Act 1959. The
defendant also received money from the prostitutes for the directory; thus, he was living on
the earnings of prostitutes. The defendant was convicted of conspiracy to corrupt public
morals, as well as acting contrary to s30 of the Sexual Offences Act 1956 (living on the
earnings of prostitution) and s2 of the Obscene Publications act 1959 (publishing an obscene
article).
Issues
The defendant appealed the conviction of conspiracy to corrupt public morals, arguing that
this was not a charge recognised by the law of England. The issue for the Court was whether
there was a charge of conspiracy to corrupt public morals and if the court had the discretion
to create such an offence.
Held
The appeal was dismissed and the conviction was upheld. The Court found the defendant’s
decision to feature prostitute adverts in his magazines as dangerous to the welfare of society
and it was their duty to protect the public majority’s morals, as well as safety and order. This
meant that the Court was able to create offences in order to adapt to changing standards in
life and in regard to the values and morals of society. Thus, this case created the new offence
of conspiracy to corrupt public morals and established that an offence that was not written in
criminal statute could be recognised as a legal charge.

Knuller v D.P.P. (1972) 2 All E.R. 898

Conspiracy to Corrupt Public Morals – Homosexual Practices – Shaw v DPP followed –

Courts no longer Create New Criminal Offences
Facts
The defendant was the director of a company, which published regular magazines for
distribution. Inside the magazines, there was a page that had columns to advertise
homosexual practices. It was concluded that this information encouraged males to meet up
and engage in homosexual activity. The defendant was convicted for conspiracy to corrupt
public morals.
Issues

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The defendant appealed his conviction for conspiracy to corrupt public morals. This was on
the issue of whether there was an offence of conspiracy to corrupt public morals recognized
by the law of England and if he could be convicted of such an offence.
Held
The appeal was dismissed and the conviction was upheld. The law does recognise conspiracy
to corrupt public morals as an offence, as this was created by Shaw v DPPand this was to be
followed. This case established that the courts has a duty to protect society’s morals and can
enforce their own decisions. Lord Reid commented that he did not agree with the Shaw v
DPPverdict and he had dissented in that case, but he also did not wish to reconsider this
decision now. He stated that while decisions are not always binding on other courts, there is a
need for certainty in the law that means not every disagreeable decision should be reversed.
The courts now have no power to create new criminal offences and can only be created by
Parliament.

R v. Brown (1993) 2 All E.R. 75

Issue
Whether defense of consent should be available as a defense in sadomasochism.
Facts
The appellants belonged to a group of sado-masochistic homosexuals who over a 10-year
period from 1978 willingly participated in the commission of acts of violence against
each other, including genital torture, for the sexual pleasure which it engendered in the
giving and receiving of pain. The passive partner or victim in each case consented to the
acts being committed and suffered no permanent injury. The activities took place in
private at a number of different locations, including rooms equipped as torture chambers
at the homes of three of the appellants. Video cameras were used to record the activities
and the resulting tapes were then copied and distributed amongst members of the group.
The tapes were not sold or used other than for the delectation of members of the group.
The appellants were tried on charges of assault occasioning actual bodily harm, contrary
to s 47 of the Offences against the Person Act 1861, and unlawful wounding, contrary to s
20 of that Act. The Crown’s case was based very largely on the contents of the video
tapes. Following a ruling by the trial judge that the consent of the victim afforded no
defence to the charges, the appellants pleaded guilty and were sentenced to terms of
imprisonment. The appellants appealed against their convictions, contending that a person
could not guilty be of assault occasioning actual bodily harm or unlawful wounding in
respect of acts carried out in private with the consent of the victim. The Court of Appeal
dismissed their appeals. The appellants appealed to the House of Lords.
Held
(Lord Mustill and Lord Slynn dissenting) – Consensual sado-masochistic homosexual
encounters which occasioned actual bodily harm to the victim were assaults occasioning
actual bodily harm, contrary to s 47 of the 1861 Act, and unlawful wounding, contrary to
s 20 of that Act, notwithstanding the victim’s consent to the acts inflicted on him, because
public policy required that society be protected by criminal sanctions against a cult of

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violence which contained the danger of the proselytisation and corruption of young men
and the potential for the infliction of serious injury. Accordingly, a person could be
convicted of unlawful wounding and assault occasioning actual bodily harm, contrary to
ss 20 and 47 of the 1861 Act, for committing sado-masochistic acts which inflicted
injuries which were neither transient nor trifling, notwithstanding that the acts were
committed in private, the person on whom the injuries were inflicted consented to the acts
and no permanent injury was sustained by the victim. It followed that the appellants had
been properly convicted and that their appeals would be dismissed.

Kendall & Others v. Khan (1979) 26 W.I.R. 433

Relationship Between Law & Morality

Crane CJ: “Decency and self respect ought not to be enforced by punishment, virtue
ought not to be secured by legislation but should be inculcated on the minds of the
People.” He further went on to qoute Paton, “Law in elaborating Standards must not try to
enforce the good life as such; it must always balance the benefits to be secured by the
obedience with the harm that the crude instrument of compluson may do. There are many
ethical rules the value of the observance of which lies in the voluntary choice of those
who attempt to follow them.”

Chief of Police and another v Nias (2008) 73 W.I.R. 201

Relationship Between Law & Morality

Rawlins CJ: The legislature has a duty to ensure that basic moral standards of the society
are upheld and maintained and has determined what use of language offends public
morality. The court is in no position to decide when the values of the society require
otherwise.
Edwards JA (Ag): Qouted Devlin where he stated “When there ceases to be a common
belief in the value of the moral code, society is threatened with disintegration”

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Worksheet 2 Cases (Elements of a Crime – Actus Reus)

R v Larsonneur (1933) 24 Cr.App. Rep. 74

The defendant was a French national who had entered the UK lawfully, but was given only
limited permission to remain in the country. At the end of that period the defendant left
England, not to return to France, but to travel to the Irish Free State. The Irish authorities made
a deportation order against her, and she was forcibly removed from Ireland and returned to the
UK. On arrival in England the defendant was charged under the Aliens Order 1920, with "being
found" in the UK whilst not having permission to enter the country. The defendant was
convicted, and appealed on the basis that her return to the UK had not been of her own free
will, in that she had been forcibly taken to England by the immigration authorities. The Court
of Appeal dismissed her appeal on the simple basis that the prosecution had proved the facts
necessary for a conviction.
She was trying to find someone to marry in Ireland to gain citizenship.

Lim Chin Aik v The Queen (1963) A.C. 160

The defendant had been convicted of contravening an order prohibiting in absolute terms, his
entry into Singapore, despite his ignorance of the order's existence. He entered legally however
while he was there the law changed. In allowing the defendant's appeal, Lord Evershed
expressed the view that the imposition of strict liability could only really be justified where it
would actually succeed in placing the onus to comply with the law on the defendant. If the
defendant is unaware that he has been made the subject of an order prohibiting him from
entering a country, the imposition of strict liability should he transgress the order would not in
anyway promote its observance.
R v Instan (1893) 1 Q.B. 450; 17 Cox C.C. 602

Instan was cared for and maintained by her seventy-three-year-old aunt who was the deceased
in this case. The deceased was healthy until shortly before her death before she contracted
gangrene in her leg which prevented her from moving and caring for herself. During this time,
Instan lived in the house, took in food from traders (of which she gave the deceased none),
omitted to procure medical assistance and even conducted conversations with neighbours about

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the deceased without disclosing her dire condition. The jury found Instan guilty of
manslaughter in the first instance. Instan appealed. She was taking the aunt’s cheques.
Issue
An important legal issue in this case was whether a duty of care was imposed upon Instan under
such circumstances and whether her negligence accelerated the death of the deceased. The
solicitor on behalf of Instan argued that such a duty could only be enforced by virtue of statute,
contract or by common law and none of which were applicable in this case.
Held
‘There can be no question in this case that it was the clear duty of the prisoner’ (at page 454).
Whilst she had the gangrene infection, the victim could only be aided by Instan and it was only
Instan that had knowledge of her condition in the final days of her life. On this basis, it was
held that Instan owed the victim a duty of care and that she did not discharge this duty with the
actions mentioned in the facts. The failure to do so was deemed to at least accelerate the death
of the deceased. Appeal dismissed and the conviction was affirmed.

R v Pitwood (1902) T.L.R. 37

OMISSION – ACTUS REUS

Facts
The defendant was employed by a railway company to operate the gate at a level crossing
across the track. He lifted the gate to allow a cart to pass across, but then failed to put it back
down before going for his lunch break. During his absence, a horse and cart crossed the track
through the open gate, and was hit by a passing train. Both the horse and cart driver were killed.
The defendant was thus convicted of manslaughter and subsequently applied for permission to
appeal.
Issue
The main issue here was whether an omission (in this case the failure to close the gate) could
constitute the actus reus for murder. A further question was whether it was possible for criminal
liability to be based on a breach of a contractual duty
Held
The court held that as the defendant had been under a contractual duty to close the gate, his
omission to perform this obligation was capable of constituting the actus reus for murder. This
was particularly so as the purpose of the defendant’s employment was for the protection of the
public, and his employer was responsible for preventing accidents at the crossing. The ruling
in R v Instan [1893] 1 QB 450, which was authority that breach of a contractual duty may
ground criminal liability for an omission, was applied and upheld. In the circumstances, the
duty had been breached with gross and criminal negligence. Permission to appeal the
conviction was therefore refused.

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R v Gibbins and Proctor (1918) 13 Cr. App. Rep. 134

These are usually relationships between close family members such as mother and daughter.
However, courts have declined to identify the exact relationships which fall under this duty of
care. A case example of this type of relationship can be seen in [1918] 13 Cr App Rep 134. In
this case, D and his common law wife neglected D’s 7 year-old child who starved to death.
Both D and his wife were convicted of murder due to D having a responsibility to his child,
and the wife – as she had a special relationship to the daughter. This case resulted in murder,
not manslaughter because the necessary intention was found.
R v Stone; R v Dobinson (1977) 2 All E.R. 341 CA

OMISSION – NEGLIGENCE – DUTY OF CARE

Facts
The defendants, S and D, were a couple who took in the victim, S’s sister, as a lodger. S had
severe disabilities, being partially deaf and blind. D had learning difficulties. Whilst staying
with the defendants, the victim became unable to care for herself, having long struggled with
mental health issues and obsession about her weight. D made some efforts to care for her,
bringing her food and washing her with the held of a neighbour. However, her attempts were
not sustained and inadequate, and the victim passed away. The defendants were charged with
manslaughter.
Issue
The issue was the jury were entitled to find that the defendants owed a duty of care to the
victim. Additionally, the definition of ‘gross negligence’ for the purpose of a manslaughter
conviction was in issue.
Held
The jury were entitled to find that a duty of care was owed on the grounds that the victim was
not only a lodger in the home of the defendants but also had closer ties to each. In Stone’s case,
a duty of care was owed on the basis that she was a blood relative, whilst Dobinson had
undertaken a duty of care by washing her and providing food.
Regarding the issue of negligence, the Court of Appeal held that in order to ground a conviction
for manslaughter the defendants must have been ‘grossly negligent’ in respect of their breach
of duty. Geoffrey Lane LJ suggested that such gross negligence required the defendants to have
been either ‘indifferent’ to the risk of injury, or have foreseen the risk and run it nevertheless.
The conviction of gross negligence manslaughter was upheld.

R v Miller (1983) 2 A.C. 161; (1983) 2 W.L.R. 539 HL

ACTUS REUS - DUTY OF CARE - OMISSION

Facts

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The defendant was a vagrant who had spent the evening drinking before returning to the
property where he was squatting. He fell asleep with a lit cigarette in his hand, which started a
fire. The defendant woke and, seeing the fire, took no steps to extinguish it but simply moved
to sleep in a different room. Eventually the whole house caught fire, causing over £800 worth
of damage. The defendant was charged with arson.
Issue
Because the prosecution relied on the ground that the defendant had failed to take any action
to extinguish the fire in addition to the fact that he had been reckless in starting the fire by
falling asleep with a lit cigarette, the question arose whether the defendant could be liable for
an omission. If it was not, then the actus reus of arson was not present and no conviction for
arson would be possible.
Held
The court concluded that as he was responsible for having created the dangerous situation, the
defendant was under a duty to take action to resolve it once he became aware of the fire. It was
not necessary that the defendant was subjectively aware of the risk of damage posed by the
fire, provided that this would be obvious to a reasonable person who troubled to turn his mind
to the matter. The defendant was therefore liable for his omission to take any steps to put out
the fire or seek held, and was accordingly convicted of arson.
R v Dytham (1979) 3 All E.R. 641
A uniformed police officer saw a man who was being kicked to death. He took no steps to
intervene and drove away when it was over. He was convicted of the common law offence of
misconduct in a public office as he had neglected to act to protect the victim or apprehend the
victim.
In Re: B (A Minor) (1981) 1 W.L.R. 1421 (missing)

Airedale NHS Trust v Bland (1993) 1 All E.R. 82

Medical treatment - Ending treatment in absence of informed consent

Facts
Bland was injured in the Hillsborough disaster when he was seventeen and a half years old and
was left in a persistent vegetative state. He remained in this state for over two years with no
sign of improvement, whilst being kept alive by life support machines. Bland could breathe by
himself but required feeding via a tube and received full care. The doctors that were treating
Bland were granted approval to remove of the tube that was feeding him. This decision was
then appealed to the House of Lords by the Solicitor acting on Bland’s behalf.
Issues
A patient that is in a persistent vegetative state cannot withhold or offer consent for treatment.
This requires the doctors to act in the best interests of the patient, which in this case was
whether the continuation of Bland being on life support was in his best interests. It was

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important to understand whether life support can ever be withdrawn from an individual who
cannot provide medical professionals with informed consent on a specific issue.
Held
Doctors have a duty to act in the best interests of their patients but this does not necessarily
require them to prolong life. On the basis that there was no potential for improvement, the
treatment Bland was receiving was deemed not to be in his best interests. It is not lawful to
cause or accelerate death. However, in this instance, it was lawful to withhold life-extending
treatment which in this instance was the food that Bland was being fed through a tube. Appeal
dismissed.

R v White (1910) 2 K.B. 124; 22 Cox C.C. 325

CAUSATION - ATTEMPT
Facts
The defendant put poison into the evening drink of the victim, his mother, with the intention
of killing her. The victim drank a few sips of the drink and then fell asleep. She did not wake
up, however the medical evidence was that she had died of a heart attack rather than as a result
of the poison. The defendant also gave evidence that he had not intended to kill her by a single
dose but had planned to deliver multiple doses over a longer period of time. The defendant was
convicted of attempted murder.
Issue
On appeal, the question arose as to whether the defendant could be liable for murder given that
his actions had not factually caused the death. A second issue was whether having delivered a
single dose was a sufficient ‘attempt’ to ground the conviction in light of the evidence that the
defendant had intended the victim to die as a result of later doses which were never
administered.
Held
The court established the ‘but for’ test of causation, according to which the defendant could
not be convicted unless it could be shown that ‘but for’ his actions the victim would not have
died. On the facts of this case the test was not met, therefore the defendant could not be
convicted of murder.
On the issue of attempt, the court held that it was sufficient that the attempted murder had been
begun, notwithstanding that the defendant had not completed his plan. The conviction for
attempted murder was therefore upheld.

R v Jordan (1956) 40 Cr.App. Rep. 152

Medical evidence was to the cause of death – new evidence regarding the cause of death

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Facts
Jordan, who worked for the United States Air Force, stabbed a man as the result of a
disturbance. The victim died in hospital eight days later. The post-mortem found that the victim
died of broncho-pneumonia following the abdominal injury sustained. The court in the first
instance found Jordan guilty. The doctor who treated the victim contacted the United States
Air Force authorities as he took a different view as to the cause of death. Leave was approved
for the gathering of further evidence.
Issue
A key issue in this case was whether and under what circumstances could a court listen to
additional evidence. One of the pre-requisites for such an application was that it must be shown
the evidence was not available at the initial trial stage. The appellant had also raised various
defences including provocation, self-defence and the fact that it was an accident.
Held
The court held that the additional evidence was of a nature that would probably have affected
the jury’s verdict. The additional evidence opined that the death was not caused by the wound
at all but that the medical treatment was inappropriate. The victim was intolerant to terramycin
which was noticed and initially stopped before being continued the following day by another
doctor. They had also introduced abnormal quantities of fluid which waterlogged the victim’s
lungs. This evidence was not available at the initial trial and it was believed that a jury would
listen to opinion of two doctors that had the standing the experts did in this case. On this basis,
the conviction was quashed.

R v Smith (1959) 2 Q.B. 35; (1959) 2 All E.R. 193; (1959) 2 W.L.R. 623; 43 Cr.
App.Rep. 121

Facts
The defendant was a soldier who stabbed one of his comrades during a fight in an army
barracks. The victim was taken to receive medical attention, but whilst being carried to the
hospital was dropped twice by those carrying him. Once at the hospital, he received negligent
medical treatment; the medics failed to diagnose a puncture to his lung. The victim died of his
injuries, and the defendant was charged with murder and convicted at first instance. The
defendant appealed on the basis that the victim would have survived but for the negligence of
those treating him. He also argued that his confession had been obtained under duress and was
therefore inadmissible.
Issue
The issue was whether the negligence on the part of the doctors was capable of breaking the
chain of causation between the defendant’s action in stabbing the victim, and his ultimate death.
Held
The court held that the stab wound was an operating cause of the victim’s death; it did not
matter that it was not the sole cause. In order to break the chain of causation, an event must be:

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“…unwarrantable, a new cause which disturbs the sequence of events [and] can be described
as either unreasonable or extraneous or extrinsic” (p. 43).
The chain of causation was not broken on the facts of this case.
With respect to the issue of duress, the court held that as the threat was made some time before
the relevant confession and was no longer active at the time of the defendant’s statement, it did
not render the evidence inadmissible. The conviction for murder was therefore upheld.

R v Blaue (1975) 1 W.L.R. 1411; (1975) 3 All E.R. 446; 61 Cr.App. Rep. 269

Chain of Causation – Manslaughter – Novus Actus Interveniens – Victim’s Own Act – Egg
shell Skull Rule
Facts
After the victim refused the defendant’s sexual advances the defendant stabbed the victim four
times. Whist the victim was admitted to hospital she required medical treatment which
involved a blood transfusion. The victim was a Jehovah’s Witness whose religious views
precluded accepting a blood transfusion. She was informed that without a blood transfusion
she would die but still refused to countenance treatment as a result of her religious conviction.
The victim subsequently died and the defendant was charged with manslaughter by way of
diminished responsibility. The defendant appealed.
Issue
Did the victim’s refusal to accept medical treatment constitute a novus actus interveniens and
so break the chain of causation between the defendant’s act and her death? Whether the test
laid down in R v Roberts (1971) 56 Cr App R 95 was to be applied because of an omission
on behalf of the victim.
Held
The appeal was dismissed. The stab wound and not the girl’s refusal to accept medical
treatment was the operating cause of death. The victim’s rejection of a blood transfusion did
not break the chain of causation. The defendant must take their victim as they find them and
this includes the characteristics and beliefs of the victim and not just their physical condition.
Unlike in R v Roberts (1971) 56 Cr App R 95 the victim’s decision was an omission and not
a positive act and so the test was not of whether the omission was reasonably foreseeable. In
the case of omissions by the victim ‘egg-shell skull’ rule was to be applied. Even if R v
Roberts (1971) 56 Cr App R 95 is applied the victim’s response was foreseeable taking into
account their particular characteristics.

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R v Cato [1976] 1 WLR 110

Causation and whether consent of victim to injections is relevant; requirements of unlawful

and malicious administration of “noxious thing” under s. 23 of the Offences against the Person
Act 1861
Facts
Mr Cato and the victim prepared their own syringes and then injected each other with heroin.
The victim died. Mr Cato was convicted of manslaughter and administering a noxious thing
contrary to s. 23 of the Offences Against the Person Act 1861. He appealed against his
conviction.
Issue
The jury was asked to decide whether the injection caused, contributed to or accelerated the
victim’s death. The judge did not provide the direction that cause or contribution should be
substantial, and advised the jury that the victim’s consent to the heroin injection was irrelevant
to the consideration of whether Mr Cato was reckless or grossly negligent (i.e. whether he
committed manslaughter). Mr Cato argued that the trial judge had thus misdirected the jury.
He also claimed that heroin was not a “noxious” thing and that “malicious” administration
under s. 23 OAPA 1861 had not occurred – i.e. the act of injection was not unlawful.
Held
The injection of heroin had to be the cause of death in order to find that manslaughter had taken
place. Even though no express directions were given about the necessity of “substantial” cause
of death, it must have been clear to the jury that more than a de minimis contribution was
required. Secondly, the victim’s consent might be relevant to the finding of recklessness or
gross negligence but consent in itself is not a defence to manslaughter. The jury was thus not
misdirected. Thirdly, as Mr Cato had unlawfully taken heroin into his possession in order to
inject the victim with it, the act of injection was itself unlawful in relation to the charge of
manslaughter. Finally, heroin is a potentially harmful substance and thus a “noxious” thing for
the purposes of s. 23 OAPA 1861; since the act of administration was deliberate and direct,
there is no need to find “maliciousness”.

R v Cheshire (1991) 3 All E.R. 670

Chain of causation – Death in hospital following shooting

Facts
Cheshire shot a man during the course of an argument. The victim was taken to hospital to have
surgery and shortly after developed respiratory issues. The doctors inserted a tracheotomy tube,
which remained in place for four weeks and initially improved the victim’s condition. Several
days later the victim complained of respiratory issues, his condition soon worsened and he died
shortly afterwards. The post-mortem found that the victim’s windpipe had narrowed near the

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location where the tracheotomy pipe had been inserted. Cheshire was subsequently charged
with murder and convicted. The decision was appealed.
Issue
A key issue in this case was whether the accused’s acts of shooting the victim had caused the
death or whether the chain of causation was broken by the negligent medical treatment that the
victim had received following being injured by the shooting. The judge in this case directed
the jury to decide whether Cheshire’s acts could have made a ‘significant contribution’ to the
victim’s death. Importantly, the judge directed the jury that the acts need not be the sole or even
main cause of death.
Held
Appeal dismissed. The jury was not required to evaluate the competing causes of death and
therefore the judge was right to direct them as he did in the first instance. It was clear that the
negligent medical treatment in this case was the immediate cause of the victim’s death but that
did not absolve the accused unless the treatment was so independent the accused’s act to regard
the contribution as insignificant.

R v Williams (1992) 2 All E.R. 183 C.A.

Directions on evidence and causation in manslaughter by an unlawful act (joint enterprise)

Facts
The victim was a hitchhiker picked up by Mr Williams; Mr Davis and Mr Bobat were
passengers in the car. After a few miles, the victim jumped out of the moving car and suffered
fatal injuries. Mr Williams and Mr Davis were convicted of manslaughter and robbery after the
jury accepted that they robbed the victim (as pre-planned) and threatened him with physical
violence as a result of which he jumped out of the car; Mr Bobat was acquitted. Mr Williams
and Davis appealed.
Issue
The judge directed the jury that statements to the police could only be used against the maker
of the statement, but Mr Williams argued that the evidence was too tenuous to go before the
jury, and that his conviction was inconsistent with Mr Bobat’s acquittal. Mr Davis claimed that
the judge should have accepted a submission of no case to answer; that his conviction was
based on Mr Bobat’s statement to the police and that evidence of the mere presence of a knife
and stick in the car should not have been admitted.
Held
Firstly, the evidence shown in order to prove the presence of a joint enterprise to rob the victim
applied equally against all defendants and thus the conviction of Messrs Williams and Davis
was indeed inconsistent with Mr Bobat’s acquittal. It follows that that the jury must have used
the defendants’ statements to the police against other defendants, despite the judge’s direction
to the contrary. Further, the jury should have been directed that the victim’s actions must be
proportional to the gravity of the threat. Based on these failures, joint enterprise could not be

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proven and, consequently, the case for robbery failed. In the absence of an unlawful act, the
elements of manslaughter were also not present.

R v Dear [1996] Crim LR 595

The defendant's daughter accused a man of sexually abusing her. The defendant went after man
and repeatedly slashed him with a Stanley knife. The victim received medical treatment but
later re-opened his wounds in what was thought to be a suicide and died two days after the
initial attack. The defendant argued the man's actions in opening the wounds amounted to a
novus actus intervenes.
Held
The defendant's conviction was upheld. The wound was still an operating and substantial cause
of death.
R v Corbett [1996] Crim. L.R. 594 CA
The appellant had been out drinking with a friend, Eric Bishop, a man of low intelligence and
suffering mental illness. They were both heavily intoxicated. Bishop accidentally urinated on
the appellant's foot. The appellant chased Bishop down the middle of a road and on catching
him punched him and head butted him. Another friend pulled the appellant off Bishop and held
him back. Bishop ran off, tripped and landed in the gutter of the road. He sat up but had his
head protruding into the road. He was then hit by a passing car which killed him. The jury
convicted him of constructive manslaughter. He appealed contending the chain of causation
had been broken.
Held
Appeal dismissed. The chain of causation was not broken. The actions of Bishop were within
the foreseeable range of events particularly given the intoxicated state he was in at the time.

Worksheet 3 Cases (Elements of a Crime - Mens Rea)

R v Sharp [1857] 26 LJMC 47

Wrongful entry to a burial ground and removal of remains from therein

Facts
The defendant was accused of breaking and entering a burial ground and removing the remains
of his mother who was buried there. He did this under the pretext that he required that the grave
be opened in order to assess whether the size of the grave would accommodate the coffin of

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his recently deceased father. He then took the remains of his mother to another churchyard
where he intended to bury his father’s corpse with the remains of his mother. This was done
without the knowledge or consent of the owners of the burial ground.
Issue
The jury was directed to convict at first instance. The defendant subsequently contended that
the conviction was wrong. The Court was required to consider whether the defendant had acted
wrongfully even where he had acted out of filial affection and religious duty.
Held
The Court subsequently affirmed the conviction. The defendant had committed trespass and
obtained a licence to enter the burial ground by misleading the person responsible for said
burial ground. The removal of the corpse was not justified by the defendant’s “estimable
motives.” The Court stated that the law recognises no property in a corpse and referred to the
protection afforded to graves at common law which must be respected. Nevertheless, although
the court stated that the conviction should stand, the Judge handed down a nominal fine of one
shilling on account of respect for the motives of the defendant.

AG’s Reference (No 1 of 2002) [2002] 3 All E.R 1, HL

The Court of Appeal held that a police officer who presented false evidence in the hope of
securing the conviction of whom she believed to be guilty of burglary could be convicted of
the offence perverting the course of justice.

AG v Scotcher [2005] UKHL36

Following a trial, a juror while in jury duty wrote to a third party say that other jury members
had not considered the case in a proper manner. He had been given written advice that he was
not free to discuss a case with anyone. He appealed conviction for contempt of court, saying
that his intention had been to support the court process, and that Mirza had changed the
applicable law. Held: Section 8(1) did not infringe the defendant’s rights, and therefore article
3 did not come into play. ‘In reality Mr Starmer is complaining about the warnings to jurors,
which were based on a misinterpretation of section 8(1). But the terms of those warnings could
not affect either the interpretation of the statute or the appellant’s guilt, one way or the other.
At most, they might have been relevant to mitigation. In fact, however, the warnings are
irrelevant since, by writing the letter, the appellant showed that he was not restrained by being
warned that he would be in contempt of court if he disclosed the jury’s deliberations to anyone.
That being so, the warnings would not have stopped him from contacting the court authorities,
or consulting a lawyer about the matter, if he had wanted to.’

Wai-Yu-Tsang v R [1992] 1 AC 269

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The defendant was convicted of conspiring to defraud a bank, of which he was the chief
accountant. He had agreed with others not to enter certain dishonoured cheques on the records
of the bank in order to save the bank's reputation. The trial judge's direction to the jury, with
which the Privy Council agreed, was to the effect that for conspiracy to defraud, no desire to
cause loss on the part of the defendant need be shown, it being sufficient that he had imperiled
the economic or proprietary interests of another party.

Hyam v DPP [1975] A.C. 55

Murder - Mens Rea – Intention – Foresight

Facts
The defendant Hyam had been in a relationship with a man before the relationship ended.
Hyam then had become jealous of her ex-boyfriend’s new fiancée Ms Booth. She poured petrol
through Booth’s letter box and then ignited it using a rolled up newspaper. Hyam did not warn
anyone of the fire but simply drove home. The resulting fire killed two young children. Hyam
was tried for murder. At trial she claimed that she had only intended to frighten Booth and had
not intended to kill anyone as the mens rea of murder demanded. Hyam was convicted and
appealed. The Court of Appeal allowed an appeal to the House of Lords.
Issues
Did Hyam have the requisite intention to commit murder? Did the mens rea of intention require
an intention to kill or only a foresight of a serious risk of death or serious bodily harm being
caused?
Held
The appeal was refused. A person had the requisite mens rea for murder if they knowingly
committed an act which was aimed at someone and which was committed with the intention of
causing death or serious injury. Lord Hailsham also held that intention could also exist where
the defendant ‘knew there was a serious risk that death or serious bodily harm will ensure from
his acts and he commits those acts deliberately and without lawful excuse with the intention to
expose a potential victim to that risk as the result of those acts. It does not matter in such
circumstances whether the defendant desires those consequences or not.’ Hyam v DPP [1975]
AC 55 at 79.

R v Moloney [1985] A.C. 905

Murder – Mens Rea – Intention – Foresight

Facts
The defendant and his stepfather who had a friendly and loving relationship were engaged in a
drunken competition to see which of them could load a shotgun faster than the other. Moloney
won, and was then challenged by his stepfather to fire the gun. He did, killing his stepfather

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instantly. Moloney was charged with murder and convicted. He appealed and the Court of
Appeal allowed appeal to the House of Lords.
Issue
Did the mens rea of murder require direct intent to kill or cause serious bodily harm, or was
foresight of a serious likelihood of harm occurring sufficient? Whether the jury was to infer
intent if they were satisfied that the accused foresaw that death or serious injury was a natural
consequence of his act?
Held
The House of Lords allowed Moloney’s appeal. He had not intended to kill his stepfather.
Knowledge of foresight of the consequences of an action were to be considered at best material
from which a crime of intent may be inferred. Where the defendant’s purpose was other than
to cause serious bodily harm or death to another then the jury may infer intent if the
consequence of the defendant’s act was a natural consequence, and the defendant foresaw that
this was a natural consequence of his act. The jury in such a circumstance should be directed
that they may infer intent, but were not bound to infer intent, if both these circumstances are
satisfied. Foresight of the natural consequences of an act is no more than evidence of the
existence of intent.

R v Hancock & Shankland [1986] A.C. 455

The defendants were miners striking who threw a concrete block from a bridge onto the
motorway below. It struck a taxi that was carrying a working miner and killed the driver. The
defendants argued that they only intended to block the road but not to kill or cause grievous
bodily harm. The trial judge directed the jury on the basis of Lord Bridge's statements in
Moloney (ie, was death or grievous bodily harm a natural consequence of what was done, and
did the defendants foresee that consequence as a natural consequence?) and the defendants
were convicted of murder.
On appeal a verdict of manslaughter was substituted by the House of Lords who reaffirmed
that the prosecution has to establish an intention to kill or do grievous bodily harm on the part
of the defendant. Lord Scarman felt that the Moloney guidelines on the relationship between
foresight and intention were unsatisfactory as they were likely to mislead a jury. Lord Scarman
expressed the view that intention was not to be equated with foresight of consequences, but
that intention could be established if there was evidence of foresight. The jury should therefore
consider whether the defendant foresaw a consequence. It should be explained to the jury that
the greater the probability of a consequence occurring, the more likely that it was foreseen, and
the more likely that it was foreseen, the more likely it is that it was intended. In short, foresight
was to be regarded as evidence of intention, not as an alternative form of it.

R v Nedrick [1986] 3 All E.R 1; [1986] 1 W.L.R. 1025

Murder – Mens Rea – Foresight – Intention – Inferred Intent

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Facts
The defendant Nedrick held a grudge against a woman. In the middle of the night he drove to
her house before pouring petrol through her letter box and igniting it. The defendant, without
warning anyone in the house then drove home. As a result of the fire a child died and Nedrick
was charged with murder. The trial judge directed the jury that if the defendant knew it was
highly probable that the act would result in serious bodily harm to someone, even if he did not
desire that result, he would be guilty of murder. Nedrick was convicted of murder and
appealed.
Issue
Whether a jury is entitled to infer intent if they consider a defendant’s actions highly likely to
cause death or serious bodily harm. Whether the defendant’s foresight of the likely
consequences of his act is sufficient to satisfy the mens rea of murder as intent. Whether the
trial judge’s direction to the jury that the defendant could be guilty of murder if he knew it was
highly probable that serious bodily harm would occur as a result of his act was a misdirection.
Held
The appeal was allowed. The trial judge’s direction was a mis-direction. Modifying R v
Moloney [1985] 1 AC 905, the Court of Appeal held that the jury should be directed that they
are not entitled to infer intention unless they are satisfied that they felt sure that death or serious
bodily injury was a virtual certainty of the defendant’s actions and that the defendant knew
this.
R v Woolin [1998] 4 All E.R. 103

The appellant threw his 3 month old baby son on to a hard surface as a result as the baby
choking on his food. The baby suffered a fractured skull and died. The trial judge directed the
jury that if they were satisfied the defendant "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 convicted of murder and also rejected the defence of provocation. The
defendant appealed on the grounds that in referring to 'substantial risk' the judge had widen the
definition of murder and should have referred to virtual certainty in accordance with Nedrick
guidance. The Court of Appeal rejected the appeal holding that there was no absolute obligation
to refer to virtual certainty.
House of Lords held
Murder conviction was substituted with manslaughter conviction. There was a material
misdirection which expanded the mens rea of murder and therefore the murder conviction was
unsafe. The House of Lords substantially agreed with the Nedrick guidelines with a minor
modification. The appropriate direction is:
"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

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was the case. The decision is one for the jury to be reached upon a consideration of all the
evidence."

R v Woolin [1998] 4 All E.R. 103

Facts
D, in anger and frustration, threw his three-month old son with considerable force causing fatal
brain injuries to the baby when his head hit something hard. The prosecution accepted that D
did not aim to kill or cause grievous bodily harm to his son but alleged murder on the basis that
he foresaw serious injury was virtually certain to result which would entitle the jury to conclude
that he intended serious bodily harm. The trial judge made a misdirection, referring to D
foreseeing a ‘substantial risk’ of serious injury. D appealed to the House of Lords against his
conviction for murder.

Decision
The appeal was successful and a conviction for manslaughter was substituted. In most cases,
a simple direction on intention is enough, without referring to foresight. But, where direct
intention cannot be shown, a jury is 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.

Key principle
Where D foresaw death or serious injury to be virtually certain from his actions, the jury may
find that he had the necessary intention for murder.

R v Matthews and R v Alleyne [2003] 2 Cr. App. R. 30

Facts
The defendants attacked and kidnapped the victim and eventually took him to a bridge over
the River Ouse. They threw him off the bridge into the river below despite hearing the victim
say that he could not swim. The victim drowned. One issue which arose concerned the accuracy
of the trial judge’s direction on the requirements of Woollin non-purpose intention and this led
the Court of Appeal to review previous case law.

Decision
The trial judge had gone further than the present law allowed in redrafting the Nedrick/Woollin
direction on virtual certainty, but on the facts, there was an irresistible inference or finding of
intention to kill once the jury were sure that Ds appreciated the virtual certainty of V’s death
from their acts and had no intentions of saving him. Appeal dismissed.

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Key principle
Once convinced that D foresaw death or serious harm to be virtually certain from his actions,
the jury may convict of murder, but does not have to do so. However, in some cases, it will be
almost impossible to find that intention did not exist.

R v Cunningham (1957) 2 Q.B 396

Intention and the meaning of malice in s.23 OAPA 1861

Facts
The appellant removed a gas meter in order to steal the money inside. The meter however was
connected to the neighbouring house which was occupied by the appellant’s future mother-in-
law. At the time he did this, she was in her property asleep. The removal of the meter caused
gas to leak into her property, which in turn lead to her being poisoned by the gas. The defendant
was charged with unlawfully and maliciously endangering his future mother-in-law’s life
contrary to the Offences Against the Person Act (OAPA) 1861, section 23. The appellant
was convicted at trial, with the judge instructing the jury that for the meaning of “malice” in
this context is “wicked” or otherwise “–
“something which he has no business to do and perfectly well knows it” (p.3).
The case was appealed by the appellant on the basis of this instruction to the jury in addition
to arguing for a lack of mens rea to cause harm.
Issue
The issue in the case was whether the trial judge had erred in his instruction to the jury and
what is the correct meaning of malice. The broader issue in the case was what amounts to
intention for the purposes of s.23 of OAPA 1861.
Held
The appellant’s conviction was quashed on the grounds that the judged had erred in describing
the meaning of “malicious” as “wicked” – this was an incorrect definition and the trial judge
misled the jury into believing that if the appellant had acted wickedly, he had also acted
maliciously. The correct test for malice was whether the defendant had either actual intent to
cause harm or was reckless as to the possibility of causing foreseeable harm. This is known as
“Cunningham Recklessness”. The jury should have been left to decide whether, even without
intending to cause harm, the appellant removed the gas meter despite foreseeing that its
removal could cause harm to his future mother-in-law.

R v Caldwell (1981) 1 All E.R. 96

Facts
D had been working for the owner of a hotel and, having a grievance against him, drunkenly
set fire to the hotel. The fire was put out before any serious damage was caused. At trial for

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arson reckless as to endangering life he said that he had been so drunk that the thought that
there might be people at the hotel whose lives might be endangered by the fire had never
crossed his mind. D was convicted.

Decision
A person might also be guilty of an offence of recklessness by being objectively reckless, ie
doing an act which creates an obvious risk of the relevant harm and at that time failing to give
any thought to the possibility of there being any such risk. Appeal dismissed.

Key principle
From 1981-2003, objective recklessness was applied to many offences, but the tide has
turned and now since G and R the Caldwell test for recklessness should no longer be
followed.

R v G and R [2003] UKHL 50 (overrulling Caldwell)

Facts
The 11 and 12 year old defendants were messing around in the early hours with some bundles
of old newspapers which they had found in the back yard of the Co-op store in Newport Pagnell.
They lit some of the newspapers and threw them on the concrete floor underneath a large plastic
wheelie bin. Adjacent was another similar bin which was next to the wall of the shop. The
accused left the yard with the papers still burning. The fire spread to the first bin, then to the
second and then to the guttering and fascia board on the overhanging eave. It penetrated the
roof space and set alight to the roof and adjoining buildings causing about £1m worth of
damage. The defendants were charged with damaging by fire ‘commercial premises . . .being
reckless as to whether such property would be damaged.’ The issue therefore turned on whether
they were reckless as to damaging the buildings. At the trial, it was accepted that the boys
thought the fire would extinguish itself on the concrete floor and that neither appreciated that
it might spread to the buildings. Nonetheless the boys were convicted and the Court of Appeal,
basing itself on Caldwell, affirmed the conviction because the boys gave no thought to a risk
of damaging the buildings which would have been obvious to any reasonable adult. The
defendants appealed to the House of Lords.

Decision
The convictions were quashed. Recklessness for the purposes of the Criminal Damage Act
1971 is subjective; D must have foreseen the risk of the harm and gone on to take that risk. The
Caldwell direction was capable of leading to obvious unfairness, had been widely criticized by
academics, judges and practitioners, and was a misinterpretation of the CDA 1971. According
to Lord Steyn, ‘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 criticized by
academic lawyers of distinction. It did not command respect among practitioners and judges.

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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.’

Key principle
Caldwell recklessness no longer applies to criminal damage, and probably has no place in
English criminal law unless expressly adopted by Parliament in a statute.

R v Pembilton [1874] L.R. 2 C.C.R. 119

Transferred Malice in cases of damage to property

Facts
The defendant was ejected from a pub and became engaged in a physical altercation in the
street. This escalated until he threw a large stone at his opponents. His throw was inaccurate
however and instead of hitting then, he hit a nearby window, breaking it and causing over £5
worth of damage. The defendant was prosecuted under section 51 of the Malicious Damage
Act 1861 c.97. This stated that:
“Whosoever shall unlawfully and maliciously commit any damage, injury, or spoil to or upon
any real or personal property whatsoever …. the damage, injury, or spoil being to an amount
exceeding five pounds, shall be guilty of a misdemeanour” (MDA 1861, s.51).
The defendant was convicted even though the jury acknowledged that he had no intention of
breaking the window and causing damage.
Issue
Could the doctrine of transferred malice operate in this case to transfer the malice to hurt
another person into malice to damage property?
Held
The court held that it was not possible to transfer the malice to strike a person to the situation
of maliciously damaging property. The court viewed the term “maliciously” to generally
require that intention be proved, although it was allowed that reckless disregard for risk which
the defendant had contemplated could suffice. As this was in any event not the case, the
conviction was quashed.
"… it seems to me that what is intended by the statute is a wilful doing of an intentional act.”
(Lord Coleridge CJ, p.122).

R v Latimer [1886] 17 Q.B.D 359

Doctrine of Transferred Malice

Facts

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The defendant was in an argument with another in a pub. The argument escalated and the
defendant attempted to hit the other man with his belt, but missed. While only marginally
hitting his intended victim, the defendant’s blow was instead redirected and hit a woman
standing next to the intended victim. The woman was severely injured. The defendant was
prosecuted for unlawful and malicious wounding, contrary to the Offences Against the Person
Act 1861, section 20.
Issue
The issue in the case was whether it was possible to convict the defendant of the s.20 OAPA
1861 offence in a situation where he had intended to harm another and only accidently harmed
his actual victim. In effect, the question was whether the mens rea of the offence could be
transferred from the intended victim to the actual victim (with the actus reus) being already
directed at the actual victim.
Held
The court held that it is possible to use the doctrine of transferred malice outside of the bounds
of murder cases. It was therefore possible to rely upon in in cases such as for a s.20 OAPA
situation of inflicting of bodily injury. Pembliton ((1874) LR 2 CCR 119was distinguished on
the grounds that it applied only to a particular kind of malice – malicious injury to property
(there transferring malice was not allowed, but this was because there was an attempt to transfer
malice from an offence against property to an offence against the person, which are completely
different offences). Therefore, the Defendant was held to be liable for the injuries of his actual
victim despite having no intention to injure her.

R v Mitchell [1983] 2 W.I.R 983

The appellant tried to jump the queue at a Post Office. An elderly man took issue with the
appellant's behaviour and challenged him. The appellant hit the old man and pushed him. The
man fell back onto others in the queue including an elderly lady who fell and broke her leg.
She later died. The appellant was convicted of manslaughter and appealed contending that the
unlawful act was not directed at the woman.
Held
The appeal was dismissed and the conviction was upheld. There was no requirement that the
unlawful act be directed at the victim.

Attorney General’s Reference (No. 3 of 1994) [1997] 3 All ER 936

Facts
The respondent stabbed his girlfriend in the stomach knowing at the time that she was
pregnant. The wound penetrated the uterus and the abdomen of the fetus but when the girlfriend
was admitted to hospital it was not realised that the fetus had been injured and treatment was
limited to care of her wounds. She made a good recovery and was discharged from hospital but

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three weeks later, as a result of her wounds, she gave premature birth to a baby daughter at 26
weeks gestation. It then became apparent that the fetus had been injured by the stab wound.
The baby had a 50% chance of survival and did so for 121 days under intensive care but then
died. The stab wound made no direct contribution to her death, the cause of death being the
premature birth and the complications associated with that. Prior to the attack by the respondent
the girlfriend’s pregnancy had been uneventful and there was nothing in her history to suggest
that she would not proceed to full term.
The Attorney General referred to the Court of Appeal the questions (i) whether, subject to
proof of the requisite intent, the deliberate infliction of injury to a child in utero or to its mother
could amount to murder or manslaughter where the child was born alive but subsequently died
either wholly or partly as a result of the injuries inflicted on it or its mother while it was in
utero, and (ii) whether the fact that the death of the child resulted solely from the injury to the
mother rather than direct injury to the foetus negatived liability for murder or manslaughter of
the child. The Court of Appeal answered the first question in the affirmative and the second in
the negative but referred both to the House of Lords.

Decision
Overturning the CA decision, the HL held that an intention to kill or cause serious injury to a
pregnant woman could not be transferred from the mother to the fetus. Conviction would
require ‘a double “transfer” of intent: first from the mother to the fetus and then from the fetus
to the child as yet unborn’ and that was impermissible. Murder would only be possible if (a) D
intended to kill or cause serious harm to the foetus itself or the child it would become after
birth, and (b) the foetus was born alive and died subsequently as a result of the injuries inflicted
by D on the foetus and/ or the mother.

Ratio-Decidendi
It is not possible to transfer malice from a pregnant woman to the fetus.

Thabo Meli v The Queen [1954] 1 W.I.R. 228

The defendants had taken their intended victim to a hut and plied him with drink so that he
became intoxicated. They then hit the victim around the head, intending to kill him. In fact, the
defendants only succeeded in knocking him unconscious, but believing the victim to be dead,
they threw his body over a cliff. The victim survived but died of exposure some time later. The
defendants were convicted of murder, and appealed to the Privy Council on the ground that
there had been no coincidence of the mens rea and actus reus of murder.
The Privy Council held that the correct view of what the defendants had done was to treat the
chain of events as a continuing actus reus. The actus reus of causing death started with the
victim being struck on the head and continued until he died of exposure. It was sufficient for
the prosecution to establish that at some time during that chain of events the defendants had
acted with the requisite mens rea.

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R v Church [1966] 1 Q.B. 59

Various bases of manslaughter and necessary directions to the jury

Facts
Mr Church and the victim were in a van for sexual purposes. The victim started mocking him
and a fight ensued. He knocked the victim semi-conscious. After his attempts to rouse her
proved unsuccessful, he panicked, thought the victim was dead and threw her into the river.
The victim’s gravely injured body was found in the River Ouse; the cause of death was
drowning. Mr Church was convicted of manslaughter. He appealed his conviction.
Issue
Mr Church argued that the basis of his guilty verdict could not be criminal negligence, as the
trial judge had only directed the jury on recklessness, nor provocation, as it was not adequate
based on the facts. Thus, the only possible basis for manslaughter was that an unlawful act
caused the death. He claimed, however, that the jury was misdirected on the relevance of his
mistaken belief in the victim’s death when he threw her into the river, as mens rea is an essential
element of manslaughter.
Held
The nature of directions given on criminal negligence have to be decided based on the
circumstances of each case – in the present case, it was sufficient to direct the jury about utter
recklessness. Secondly, the commission of an unlawful act does not in itself make a
manslaughter conviction inevitable. It is only satisfied if the unlawful act is such that all
reasonable people would realise that the act would subject the victim to the risk of at least some
harm resulting from it. The trial judge had thus misdirected the jury by claiming that Mr
Church’s belief in the victim’s death when he threw her into the river was irrelevant. However,
despite the misdirection, there was no substantial miscarriage of justice on the whole because,
on proper direction, the verdict would necessarily have been that of guilty.

R v Le Brun [1992] 1 QB 61 (CA)

The defendant punched his wife on the chin knocking her unconscious. He did not intend to
cause her serious harm. The defendant attempted to move her body, and in the course of so
doing dropped her, causing her head to strike the pavement. His wife sustained fractures to the
skull that proved fatal. The defendant's appeal against his conviction for manslaughter was
dismissed by the Court of Appeal. Lord Lane CJ said:
"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 unlawful
assault.

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DPP v Morgan (1975) 2 All E.R. 347

Rape – Consent – Honest Belief to Consent – No Reasonable Belief Required if Honest and
Genuine Belief to Consent
Facts
The defendant was a Royal Air Force Pilot and he had invited his friends over to have sexual
intercourse with his wife. He told them that any signs of struggle were not to be seen as a lack
of consent and that she enjoyed it. The men were convicted of rape, while Morgan was
convicted of aiding and abetting his wife. The men had argued that they had the honest belief
that the complainant had consented to sexual intercourse.
Issues
The defendant appealed on the direction of the trial judge. The issue in this case was concerning
whether there could be a conviction for rape if the defendant honestly believed that the woman
consented to sexual intercourse, if his belief was not based on reasonable grounds.
Held
It was held that as long as a belief was genuine and honest pertaining to consent, it did not have
to be a reasonable belief for a defence to rape. The focus was on the mens rea of rape; there
had to be an intention to commit the crime, as well as a lack of consent. There was a requirement
to know the woman had not consented or reckless to whether she did. Despite this decision, the
conviction was upheld, as no reasonable jury would have found them not guilty, even if directed
correctly by the judge. The complainant had clearly communicated her lack of consent for
sexual activity in this case.

Beckford v R (1988) A.C. 130; (1987) 3 All E.R. 425

Issue
Whether the plea is self-defense or defense of another, if the defendant may have been laboring
under a mistake as to facts, he must be judged according to his mistaken belief of the facts: that
is so whether the mistake was, on an objective view, a reasonable mistake or not.
Facts
the defendant police officer shot dead a suspect, having been told that he was armed and
dangerous, because he feared for his own life. The prosecution case was that the victim had
been unarmed and thus presented no threat to the defendant. The trial judge directed the jury
that the defendant's belief in the need to shoot in self-defense had to be both honest and
reasonable. In rejecting this direction, the Privy Council approved the approach in Williams.
Lord Griffiths commented that juries should be given the following guidance:
Held

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The defendant therefore, had a defense of self-defense because the killing was not unlawful if,
in the circumstances as he perceived them to be, he had used reasonable force to defend himself.

B v Dpp [2000] 1 All E.R 833

Issue
whether the offence under s.1(1) was of strict liability in relation to the age of the victim.
A boy aged 14 was charged with an offence of inciting a child under 14 to commit an act of
gross indecency, contrary to section 1(1) of the Indecency with Children Act 1960. He had sat
next to a 13-year-old girl on a bus and repeatedly asked her to perform oral sex with him. She
refused. The boy believed the girl was over 14.
Held
The House of Lords held that R v Prince did not lay down a rule that all offences relating to
age of the victim were outside consideration of the general presumption in favour of mens rea.
Moreover, the law had moved on since this decision favouring an honest belief of the defendant
which was not dependent upon the belief being reasonable. Where a charge was a true crime
of gravity, the stronger the presumption of mens rea. The defendant's conviction was quashed.

Esop (1836) 7 C& P 456

In Esop (1836) 173 ER 203 the accused was convicted of an offence under English law,
buggery; under his personal law no such offence existed. Accordingly, where the accused has
the relevant actus reus and mens rea for the crime, he is guilty even though he did not know
that the actus reus was forbidden by the criminal law.

Worksheet 4 Cases (Negligence, Strict Liability, Vicarious Liability)

McCrone v Riding [1938] 1 All E.R. 157 (missing)

R v Bateman [1925] 19 Cr. App R 8

Whether level of negligence amounted to gross negligence to warrant criminal liability.

Facts

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A qualified medical practitioner was convicted of gross negligence manslaughter arising out of
the delivery of a patient in child birth, Ms. Harding. During the delivery of her child, the doctor
eventually resorted to an operation which required ‘considerable force.’ The delivered child
was dead. During the operation, the doctor accidentally removed a portion of Ms. Harding’s
uterus. Initially refusing to do so, the doctor eventually transferred Ms. Harding to an infirmary
where she was found unfit to undergo an operation and died two days later. A post mortem
examination revealed various internal ruptures and substantial removal of the uterus.
Issue
The issue concerned the criminal liability of the doctor for the death of Ms. Harding due to the
internal ruptures, substantial removal of the uterus, and delay in admitting her to an infirmary.
The appeal considered whether the jury’s instructions concerning the level of negligence
warranting criminal liability for manslaughter.
Held
The Court held that in order to establish criminal liability for manslaughter by negligence, it
must be proven that (1) the doctor owed a duty of care to his patient, (2) this duty was not
discharged, (3) this failure to discharge his duty caused the death, and, (4) a gross level of
negligence to satisfy the mens rea element of the crime. In doing so, the Court distinguished
between civil liability warranting compensation pursuant to an assessment of the damage and
criminal liability which requires mens rea concerning the degree of negligence. Considering
this distinction between negligence giving rise to compensation and negligence constituting a
crime, the Court of Appeal found the judge in first instance misdirected the jury and quashed
the guilty verdict.

Andrew v D.P.P. [1937] A.C. 576

R v Prentice [1994] Q.B. 302

R v Adomako [1994] 3 W.L.R. 288

Facts
The defendant, Mr. Adomako, was an anesthetist. He was undertaking his role during an eye
operation during which the patient was required to be placed under a general anesthetic. During
the operation, and whilst under Mr. Adomako’s supervision, a crucial tube became
disconnected from the ventilator and the patient suffered a fatal cardiac arrest. Mr. Adomako
was convicted of the manslaughter by breach of duty.
Issue
Mr. Adomako appealed the conviction and questioned the legal basis of involuntary
manslaughter by breach of duty.
Held

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Dismissing Mr. Adomako’s appeal, it was held that in cases of manslaughter by criminal
negligence involving a breach of duty the ordinary principles of the law of negligence applied
to ascertain whether the defendant had been in breach of a duty of care to the victim. On the
establishment of said breach of duty the next question was that of establishing causation and,
and if this could be so established, whether it should be characterized as gross negligence and
therefore a crime. This is ultimately a question for the jury, having regard to the risk of death
involved, asking themselves ‘was the defendant’s conduct so bad in all the circumstances that
it ought to amount to criminal?’

Tolson (1889) 23 QBD. 168; 16 Cox CC629

R v Tolson (1889) 23 QBD 168 The appellant married in Sept 1880. In Dec 1881 her husband
went missing. She was told that he had been on a ship that was lost at sea. Six years later,
believing her husband to be dead, she married another. 11 months later her husband turned up.
She was charged with the offence of bigamy.
(she appealed and her conviction was quashed)
Held:
She was afforded the defence of mistake as it was reasonable in the circumstances to believe
that her husband was dead.
Prince (1875) 13 Cox CC 138

Absolute liability - Mens rea of abduction under the Offences Against the Person Act 1861
Facts
Henry Prince (H) was convicted under to section 55 of the Offences Against the Person Act
1861 of taking an unmarried girl under the age of 16 out of the possession of her father without
the father’s consent. The girl, Annie Phillips (A), was in fact 14 years old, however A had told
H that she was 18, and H reasonably believed that that was her age. The appellant appealed
against his conviction.
Issue
Section 55 of the Offences Against the Person Act 1861 is silent as to the mens rea required
for the offence. The issue in question was whether the court is required to read a mens rea
requirement into a statute which is silent as to the mens rea for an offence, and therefore if H’s
reasonable belief was a defence to the offence under Section 55.
Held
Where a statute is silent as to the mens rea for an offence, the court is not bound to read a mens
rea requirement into the statute. The offence was one of strict liability as to age, therefore a
mens rea of knowledge of the girl’s actual age was not required to establish the offence. H’s
reasonable belief was therefore no defence, and the conviction was upheld.

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Sweet v Parsley (1970) 2 W.L.R 470

Absolute liability - Mens rea of a Statutory Offence under the Dangerous Drugs Act 1965
Facts
The appellant, Stephanie Sweet (S), was a sub-tenant of a farmhouse, where cannabis resin was
found. S no longer lived in the house and had let out several rooms to tenants. She did retain a
room but only returned occasionally to collect letters and rent. The appellant was charged and
convicted under Section 5(b) of the Dangerous Drugs Act 1965 (1965 Act) with
“being concerned in the management of premises used for the purpose of smoking cannabis
resin.”
Issue
Section 5(b) of the 1965 Act makes no reference to the mens rea required for the offence. The
issues in question for the appeal court were (1) whether Section 5(b) created an absolute offence
and (2) if not, what was the requisite mens rea for the offence. The appellant, S, appealed
against her conviction, claiming that Section 5(b) required the mens rea of knowledge of the
prohibited purposes which the farmhouse was being used for. While S accepted that the
premises had been used for smoking cannabis resin, she had no knowledge of this use.
Held
Section 5(b) of the 1965 Act did not create an absolute offence. Unless it is the clear intention
of Parliament that an offence is an absolute or regulatory offence (imposing strict liability), the
presumption of mens rea prevails for ‘true’ crime offences. The words ‘being concerned in the
management’ under Section 5(b) had to be read as importing a mens rea of knowledge as to
the use of the premises for the prohibited purpose, therefore the offence was a ‘true crime,’ not
a regulatory crime. The conviction was therefore quashed, as S, did not have the requisite mens
rea for the offence under Section 5(b) of the 1965 Act.

Pharmaceutical Society of Great Britain v Storkwain LTD (1986) 2 All E.R 635

The appellant, a pharmacist was convicted of an offence under s.58(2) of the Medicines Act
1968 of supplying prescription drugs without a prescription given by an appropriate medical
practitioner. The appellant had allowed prescription drugs to be supplied on production of
fraudulent prescriptions whereby a doctor’s signature had been copied. The appellant was not
party to the fraud and had no knowledge of the forged signatures and believed the prescriptions
were genuine. (The signatures for the prescriptions were forged and the defendant the
pharmacist was unaware of this and supplied the drugs for the given prescriptions)
The offence was one of strict liability and the conviction was upheld. The House of Lords
looked at other sections of the Medicines Act 1968 and found that some sections referred to a

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requirement of mens rea whereas other sections did not. They concluded that the omission to
refer to mens rea in s.58 must therefore have been deliberate and so the presumption of mens
rea was rebutted. ( this particular section did not refer to the requirement of mens rea and so
the conviction was upheld)
B (a minor) v DPP [2000] 2 W.L.R 452 HL

A boy aged 14 was charged with an offence of inciting a child under 14 to commit an act of
gross indecency, contrary to section 1(1) of the Indecency with Children Act 1960. He had sat
next to a 13 year old girl on a bus and repeatedly asked her to perform oral sex with him. She
refused. The boy believed the girl was over 14. The question for the court was whether the
offence under s.1(1) was of strict liability in relation to the age of the victim.
Held
The House of Lords held that R v Prince did not lay down a rule that all offences relating to
age of the
victim were outside consideration of the general presumption in favour of mens rea. Moreover,
the law had moved on since this decision favouring an honest belief of the defendant which
was not dependent upon the belief being reasonable. Where a charge was a true crime of
gravity, the stronger the presumption of mens rea. The defendant's conviction was quashed.

Gammon (Hong Kong) Ltd. V. AG (1984) 2 All ER 503

Issue

The case concerned the issue of whether statutory building regulations were strict liability.

Decision
Per Lord Scarman, ‘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; 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.

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The severity of the maximum penalties is a more formidable point. But it has to be considered
in the light of the ordinance read as a whole. For reasons which their Lordships have already
developed, there is nothing inconsistent with the purpose of the ordinance in imposing severe
penalties for offences of strict liability. The legislature could reasonably have intended severity
to be a significant deterrent, bearing in mind the risks to public safety arising from some
contraventions of the ordinance. Their Lordships agree with the view on this point of the Court
of Appeal. It must be crucially important that those who participate in or bear responsibility for
the carrying out of works in a manner which complies with the requirements of the ordinance
should know that severe penalties await them in the event of any contravention or non-
compliance with the ordinance by themselves or by anyone over whom they are required to
exercise supervision or control.’

Key principle
This case discussed the factors which may indicate that an offence is or is not of strict liability

R v K [2001] 3 All ER 897 HL

K, a 26-year-old man, was charged under s.14(1) Sexual Offences Act 1956 with indecent
assault on a girl of 14. His defence was that the sexual activity was consensual and that she had
told him she was 16 and that he had had no reason to disbelieve her. The trial judge ruled that
the prosecution had to prove an absence of genuine belief that the victim was aged 16 or over.
In so ruling the judge relied on the decision of the House of Lords in B (A Minor) v Director
of Public Prosecutions [2000] 2 AC 428. The prosecution appealed against that ruling. The
Court of Appeal allowed the appeal and held that such absence of genuine belief did not have
to be proved. The Court of Appeal certified the following points of law of general public
importance:
"(a) Is a defendant entitled to be acquitted of the offence of indecent assault on a complainant
under the age of 16 years, contrary to section 14(1) of the Sexual Offences Act 1956, if he may
hold an honest belief that the complainant in question was aged 16 years or over? (b) If yes,
must the belief be held on reasonable grounds?"
Held: The appeal was allowed. A defendant is entitled to be acquitted of sexual assault under
s.14(1) if he has an honest belief that the girl was over 16. There is no requirement that the
defendant had reasonable grounds for his belief. Affirmed the principle established in B v DPP
that R v Prince did not set any rule relating to age related crimes an
d even if it had, it had not survived the ruling in Sweet v Parsley that there exists a presumption
of mens rea.

Sheppard (1980) 3 All ER 899

The appellants were a young couple of low intelligence living in deprived conditions.
Following the death of their 16-month old son from hypothermia and malnutrition, they were

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charged under s 1(1)* of the Children and Young Persons Act 1933 with willfully neglecting
the child in a manner likely to cause it unnecessary suffering or injury to its health. At the trial
it was alleged that the appellants had failed to provide the child with adequate medical aid on
several occasions, especially during the week immediately preceding his death. The appellants’
defense was, in effect, that they had not realized that the child was ill enough to see a doctor,
and that although they had observed his loss of appetite and failure to ingest food, they had
genuinely thought that that was due to some minor upset which would cure itself. The trial
judge applying previous authority treated the offence as one of strict liability and directed the
jury that the test of the appellants' guilt was to be judged objectively by whether a reasonable
parent, with knowledge of the facts that were known to the appellants, would have appreciated,
that, failure to have the child examined was likely to cause unnecessary suffering or injury to
health. The appellants were convicted and appealed unsuccessfully against their convictions to
the Court of Appeal. On appeal to the House of Lords,
Held (i) (Lord Fraser and Lord Scarman dissenting). The offence of willfully neglecting a child
contrary to s 1(1) of the 1933 Act was not an offence of strict liability to be judged by the
objective test of what a reasonable parent would have done, since the civil law concept of
negligence was not to be imported into the offence. The actus reus of the offence was simply
the failure for whatever reason to provide the child whenever it was necessary with the medical
care needed while the mens rea was described in the word ‘willfully’. Furthermore, although
failure to provide adequate medical care was deemed by s 1(2)(a) to amount to ‘neglect’ it was
not deemed to amount to ‘willful’ neglect, and therefore the prosecution was required to prove
not only that the child did in fact need adequate medical care at the relevant time but also that
the parents had deliberately or recklessly failed to provide that care. It followed that a genuine
lack of appreciation that the child needed a medical care or failure through stupidity, ignorance
or personal inadequacy to provide that care were both good defenses to the offence (see p 902)
j to p 903 f and j to p 904 a and d to f, p 906 h j, p 908 h to p 909 a and h j and p 914 c to e and
j to p 9.15 a, post); R v Senior[1895-9] All ER Rep 511 explained; R v Lowe [1973] 1 All ER
805 overruled.
(2) Accordingly (per Lord Diplock, Lord Edmund-Davies and Lord Keith), the proper direction
to be given to a jury on a charge of willful neglect of a child under s 1 of the 1933 Act by failing
to provide adequate medical aid was that the jury had to be satisfied (a) that the child did in
fact need medical aid at the time of the accused’s alleged failure to provide it and (b) either that
the accused was aware at the time that the child’s health might be at risk if medical aid was not
provided or that the accused’s unawareness of that fact was due to his not caring whether the
child’s health ,was at risk. Since it was not possible to say with certainty that the jury would
have convicted the appellants had they been properly directed the appeal would be allowed.

Alphacell v Woodward (1972) AC 824

The appellant factory owner was convicted of causing polluted matter to enter a river under the
Rivers (Prevention of Pollution) Act 1951. The offence related to an underground pipe which
had become disconnected due to a blockage. The appellant was unaware of the pollution and it
was not alleged that they had been negligent.

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Held: As a matter of public policy the offence was one of strict liability and therefore the appeal
was dismissed and the conviction upheld. Lord Salmon:
"If this appeal succeeded and it were held to be the law that no conviction be obtained under
the 1951 Act 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 s2(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)

Issue
Whether the relevant legislation, s 14 of the Trade Description Act 1968, created an offence of
Strict Liability.
Facts
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 respondent, a holiday tour operator, published a brochure which gave details of the
holidays it would have available for the 1981–82 winter season, and which mistakenly
indicated that certain hotel accommodation in Sri Lanka was air-conditioned. In May 1981 the
respondent discovered the mistake and instructed all its staff to amend their brochures and its
sales agents to inform travel agents and customers of the error when initial telephone bookings
were made. It also prepared a letter to send to customers who had already booked holidays. In
January 1982 Wade booked a holiday with the respondent in Sri Lanka, but neither the
respondent nor the travel agent informed him that the hotel was not air-conditioned. On his
return home after the holiday Wade complained to a trading standards officer. An information
was laid against the respondent alleging that in the course of a trade or business it made a
statement which it knew to be false as to the nature of the accommodation, contrary to s
14(1)(a)a of the Trade Descriptions Act 1968. The respondent was convicted by the
magistrates.
but on appeal the Divisional Court quashed the conviction, holding that to constitute an
offence under s 14(1)(a) it had to be shown that the respondent had omitted to take an available
opportunity to counteract the effect of the publication. The trading standards officer appealed
to the House of Lords. At the hearing of the appeal the respondent contended, inter alia, (i) that
the essence of the offence was knowingly making a false statement and the respondent lacked
the necessary mens rea since at the time Wade read the brochure the respondent, having taken
all steps that seemed reasonable to it to correct the false statement, did not know that the false
statement in the brochure was being published to W, or alternatively (ii) that the respondent
had not 'made' a statement when W read the brochure and booked the holiday since the

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statement was made only once, namely when the brochure was published in 1981 (when the
respondent did not know of the mistake) and not when Wade read it.
Held – The purpose of the 1968 Act was the protection of the public by the maintenance of
trading standards and the Act fell into that class of legislation which prohibited actions which
although not criminal in the strict sense were, in the public interest, prohibited by means of
penalties enforced by the criminal courts. Accordingly, on the true construction of s 14(1)(a)
of the 1968 Act, the offence of making a statement knowing it to be false was, in regard to the
actual making of the statement, an absolute offence which did not require mens rea. The offence
was committed merely if a statement known to be false was made on the defendant's behalf in
the course of his business, and it was irrelevant that the defendant did not know that the
statement had been made. Furthermore, where the false statement was made in a trade
publication such as a brochure the statement was either made whenever a member of the public
did business with the defendant on the strength of the uncorrected publication or (per Lord
Brandon) was a continuing false statement which was made so long as the publication remained
in circulation without effective correction. Since the respondent's brochure was inaccurate, the
respondent knew it was inaccurate and Wade had been misled by it, all the ingredients of an
offence under s 14(1)(a) were present and the respondent had been rightly convicted by the
magistrates.

Warner v Metropolitan Police Commissioner (1968) 2 All ER 635

The defendant, who was a floor-layer by occupation, sold scent as a side-line. He went to a
café and asked if anything had been left for him. He was given two boxes, one containing
perfume and the other 20,000 tablets of drugs. He was charged with being in possession of a
prohibited drug contrary to s1 of the Drugs (Prevention of Misuse) Act 1964 (now replaced).
He said he thought they both contained perfume.
In the House of Lords, Lord Morris held that the defendant being in physical control of the
package and its contents either: (a) with his consent thereto knowing that it had contents, or (b)
with knowledge that the package was in his control, his possession of the tablets was
established for the purposes of s1, whether or not the defendant realised that he was in
possession of a prohibited drug.

Cundy v Le Cocq (1884) 1 QBD 207

The defendant was convicted of unlawfully selling alcohol to an intoxicated person, contrary
to s13 of the Licensing Act 1872. On appeal, the defendant contended that he had been unaware
of the customer's drunkenness and thus should be acquitted. The Divisional Court interpreted
s13 as creating an offence of strict liability since it was itself silent as to mens rea, whereas
other offences under the same Act expressly required proof of knowledge on the part of the
defendant. It was held that it was not necessary to consider whether the defendant knew, or had
means of knowing, or could with ordinary care have detected that the person served was drunk.
If he served a drink to a person who was in fact drunk, he was guilty. Stephen J stated:

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Here, as I have already pointed out, the object of this part of the Act is to prevent the sale of
intoxicating liquor to drunken persons, and it is perfectly natural to carry that out by throwing
on the publican the responsibility of determining whether the person supplied comes within
that category.

Sherras v Derrutzen (1895) 1 QB 918

The defendant was convicted of selling alcohol to a police officer whilst on duty, contrary to
s16(2) of the Licensing Act 1872. He had reasonably believed the constable to be off duty as
he had removed his armband, which was the acknowledged method of signifying off duty. The
Divisional Court held that the conviction should be quashed, despite the absence from s16(2)
of any words requiring proof of mens rea as an element of the offence. Wright J expressed the
view that the presumption in favour of mens rea would only be displaced by the wording of the
statute itself, or its subject matter. In this case the latter factor was significant, in that no amount
of reasonable care by the defendant would have prevented the offence from being committed.
Wright J stated:
"It is plain that if guilty knowledge is not necessary, no care on the part of the publican could
save him from a conviction under section 16, subsection (2), since it would be as easy for the
constable to deny that he was on duty when asked, or to 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." (defendant’s conviction was quashed)

Hobbs v Winchester Corporation (1910) 2 KB 417

Vane v Yiannopoulus [1965] AC 486

Facts
Section 22(1) of the Licensing Act 1961 provided: ‘If . . . (a) the holder of a justices’ on-
licence knowingly sells or supplies intoxicating liquor to persons to whom he is not permitted
by the conditions of the licence to sell or supply it . . . he shall be guilty of an offence.’ [Now
s. 161(1) of the Licensing Act 1964.] D was the holder of a restaurant on-licence which
stipulated that liquor was to be sold only to those ordering meals and D had so instructed his
staff. Whilst D was working on one floor of the restaurant, a waitress on another floor, without
D’s knowledge, served liquor to youths who had not ordered a meal. D was acquitted by the
magistrates and the Divisional Court, dismissing the prosecution’s appeal, held that D had not
delegated the management of the business to the waitress, whose knowledge could not
therefore be imputed to D. The prosecution appealed to the House of Lords.
Decision
Per Lord Reid, ‘. I shall not deal in detail with the cases on which the appellant has to rely.
They are all more than 60 years old and with one exception they dealt with provisions in which
the word ‘knowingly’ did not occur. The courts relied on the fact that it must have been known
to Parliament that the things prohibited would frequently be done by servants of the licence

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holder and that in many cases the licence holder would have no knowledge of what his servant
had done or at least that it would be very difficult to prove his knowledge or connivance. As
there was no provision making the servant himself liable to prosecution, it would be impossible
to enforce the law adequately if it was necessary in every case to prove mens rea in the licence
holder. Those were strong arguments, and, as there was nothing in the wording of the relevant
sections to exclude vicarious responsibility, I think that the courts were well justified in
construing the sections as they did.

Mousell Bros. Ltd. V London & Northwestern Ry. Co. [1917] 2 KB 836

Issue
Whether, the offence of Foss (manager) having been proved, the appellants, a limited liability
company, can be convicted of the offence of having given a false account of goods intended to
be carried by the respondents with the intent of avoiding the payment of the tolls properly
chargeable for the same.
Facts
A servant of the appellant company, who was employed, inter alia, to consign goods belonging to
the company by the respondents' railway, in making out, or causing to be made out, the consignment
notes wrongly described the goods so as to obtain their conveyance by the respondents at a cheaper
rate then that which was properly chargeable. The directors of the company knew nothing of the
false description and were in no way party to it. On a prosecution of the company under s 98 and s
99 of the Railway Clauses Consolidation Act, 1845, for giving a false account of the goods with intent
to avoid the tolls payable in respect thereof.

Held

(i) in view of the language and purposes of the Act of 1845 it was the intention of the legislature to
fix responsibility for this quasi-criminal act on the master if the act was done by a servant while
acting within the scope of his employment, as was the case here; (ii) there was nothing in the Act
showing a "contrary intention" within s 2(1) of the Interpretation Act, 1889, and, therefore, "person
" in s 98 and s 99 included a body corporate; accordingly, the company could be properly convicted
of the offence charged.

Tesco Supermarket v Nattrass [1972] AC 153

Facts
Tesco by a window poster advertised washing powder for sale at a special price. However,
having run out of ‘special offer’ packets, they sold ordinary packets at the normal, higher
price. They were prosecuted for giving a false indication as to price contrary to s. 11(2) of the
Trade Descriptions Act 1968 and claimed a defense under s. 24. This required them to prove
that the offence was due to the act or default of ‘another person’ and that they used all due
diligence to avoid its commission. It was established that the offence was the fault of the
branch manager who had failed to do the proper daily check of special offers laid down by
the company. The crucial issue was whether a branch manager was ‘another person’ for the
purposes of s. 24 or whether he was to be identified with the company.

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Decision
Per Lord Reid, ‘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 servant or agent. In that case any liability of the company can only
be a statutory or vicarious liability.

Furguson v Weaving [1951] 1 All ER 412

Waiters acting contrary to instructions and liability of the licensee

Facts
The licensee instructed the waiters to make sure that customers in his public house did not
continue to drink intoxicating substances on the premises after 10 pm. Shortly before 10 pm,
the licensee issued an appropriate signal (by electric lighting) to warn about taking the last
orders. Another signal was given at 10 pm. One group of waiters ignored the instructions and
failed to ensure that drinks were no longer consumed by the time the second signal came. The
police entered the premises shortly after 10pm and found that several customers were still
drinking alcohol. They charged the customers with an offence under s.4(b) of the Licensing
Act 1921 for consuming alcohol outside of permitted hours; they also charged the licensee with
counselling and procuring this offence.
Issue
The licensee argued that there was no provision in the Licensing Act 1921 that created a
substantive offence of a licensee’s failure to stop people from consuming intoxicating
substances outside of permitted hours. Thus, such an omission cannot in itself make the
licensee guilty of counselling and procuring her customers to violate s.4, when she was not
directly aware of the customers’ actions and she already entrusted the waiters (who were
actually aware of the situation) the control and management of the premises.
Held

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The Court, accepting the licensee’s argument, held that the licensee could not be guilty of
counselling and procuring, if she had no knowledge of the principal offence. In order to find
the licensee guilty, it should be proved that she knew the essential matters which constituted
the offence. As the licensee entrusted the waiters to control and manage the room in question,
and as the 1921 Act did not make knowing permission a substantive offence, the waiters’
knowledge could not be imputed to her and she could not have counselled or procured the
commission of the offence.

Allen v Whitehead [1930] 1 KB 211

Facts
The owner of a Café was Charged with knowingly permitting prostitutes to meet together and
remain in a place where refreshments were sold. The Café was run by a Manager who knew
about the prostitutes; the accused had no knowledge of them.
Held
The court held that the Café owner had delegated his statutory duty, and was therefore
vicariously liable, so that his manager’s actus reus and mes rea could be assigned to him.

Coppen v Moore [1898] 2 QB 306

Ratio: Section 2(2) of the 1887 Act made it an offence to sell or expose for sale goods to
which a forged trade mark or false description was applied unless the alleged offender could
prove what amounted to due diligence. Salesmen at one of the appellant’s shops sold
American Ham as Scotch Ham, despite instructions from the appellant to branch managers
that breakfast hams should only be sold as such, without reference to any place of origin. He
was nevertheless convicted. It was contended on his behalf that he should not be held
criminally liable for the unauthorised acts of his servants.

Held: ‘In our judgment it was clearly the intention of the Legislature to make the master
criminally liable for such acts, unless he was able to rebut the prima facie presumption of
guilt by one or other of the methods pointed out in the Act. Take the facts here, and apply the
Act to them. To begin with, it cannot be doubted that the appellant sold the ham in question,
although the transaction was carried out by his servants. In other words, he was the seller,
although not the actual salesman.

Worksheet 5 Cases (General Defenses Part 1)

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Walters v Lunt [1951] 2 All E.R. 645

The respondents had been charged under section 33(1) of the 1916 Act with receiving from a
child aged seven years, certain articles knowing them to have been stolen.
Held: A child under eight years was deemed in law to be incapable of committing a crime: it
followed that at the time of receipt by the respondents the articles had not been stolen and that
the charge had not been proved.

C v DPP [1996] 1 A.C. 1

The appellant was a boy of 12 in 1992 when he was seen by police holding a motor-cycle
parked in a private driveway; another boy was trying to force the padlock and chain with a
crowbar. The boys ran away as the police approached, leaving the crowbar behind with the
bike, which had been damaged. The appellant was caught in a nearby nursing home. He was
subsequently convicted of interfering with a motor vehicle with the intention to commit theft,
contrary to s. 9(1) of the Criminal Attempts Act 1981. The magistrates inferred that the
appellant knew he was in serious trouble. They drew this inference from the nature of the
damage done to the motor-bike, and from the attempt to escape from the pursuing police. On
appeal to the Divisional Court by way of case stated (C v. DPP [1994] 3 All ER 190), the
defence submitted that these facts were insufficient to support the inference drawn by the
magistrates, and that there was therefore no evidence to rebut the presumption that a child
between the ages of 10 and 14 is doli incapax; that is, that the child did not know his or her act
to be seriously wrong. The doli incapax rule provides that unless the presumption is rebutted
the child must be acquitted; it is sometimes described as a requirement that the prosecution
prove the young defendant acted with a ‘mischievous discretion’.

Walton v R (1977) 3 W.L.R. 902

The defendant shot someone in a car. His defence was diminished responsibility, but the jury
found him guilty of murder. He was sentenced to death. The Barbadian statute used precisely
the same wording as the English Act of 1957. There had been uncontradicted medical evidence
that the defendant suffered from an abnormality of mind which substantially impaired his
mental responsibility for his acts. It was said that this meant that the jury was bound to accept
that the defence had been established and that the trial judge should so have directed the jury.

Held: Lord Keith of Kinkel referred to the case law and said: ‘These cases make it 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 defendant before, at the time
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’. The jury were entitled to regard the medical evidence
as ‘not entirely convincing’. Furthermore, it had before it the evidence of the defendant’s

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conduct before, during and after the killing. He concluded that the jury was entitled to find that
the defence of diminished responsibility had not been established, on a balance of
probabilities.

M’Naughten Case [1843] 10 C.I and F. 200

Facts

In January 1843, at the parish of Saint Martin, Middlesex, Daniel M’Naghten took a pistol and
shot Edward Drummond, who he believed to be the British Prime Minister Robert Pell,
wounding him fatally. Drummond died five days later and M’Naghten was charged with his
murder. He pleaded not guilty by reason of insanity.

At trial, evidence was given of the shooting of Drummond and witnesses were called on the
behalf of the defendant, M’Naghten, to attest to the fact he was not in a sound state of mind at
the time of committing the act. Some of the witnesses who gave this evidence, had previously
examined M’Naghten, whilst others had not seen him prior to the trial and, and they formed
their opinion on hearing the evidence given by other witnesses.

The medical evidence brought forward stated that persons of otherwise sound mind, might be
affected by morbid delusions and that M’Naghten was so affected. A person labouring under
such delusion, might usually possess a moral perception of right and wrong, but in relation to
acts connected to their delusion may be carried beyond power of their own control leaving
them with no such perception.

Accordingly, M’Naghten was not capable of exercising control over his acts whilst under his
delusion. Due to the nature of M’Naghten’s condition these delusions went on gradually until
they reached a climax, ending with Drummond being shot. Evidence brought before the Court
about the condition from which M’Naghten suffered stated that a man may go on for years
quietly whilst under the delusion’s influence, but had the potential break out into extravagant
and violent paroxysms.

In relation to the charge against M’Naghten, Lord Chief Justice Tindal stated that “the question
to be determined is, whether at the time the act in question was committed, the prisoner had or
had not the use of his understanding, so as to know that he was doing a wrong or wicked act.
If the jurors should be of opinion that the prisoner was not sensible, at the time he committed
it, that he was violating the laws both of God and man, then he would be entitled to a verdict
in his favour: but if, on the contrary, they were of opinion that when he committed the act he
was in a sound state of mind, then their verdict must be against him.”

M’Naghten was found not guilty.

Following this a panel of Judges attended the House of Lords and had a series of hypothetical
questions on the topic of insanity put before them.

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Issue

The hypothetical questions about insanity the judges had to address were as follows:

1. What is the law respecting alleged crimes committed by persons afflicted with insane
delusion, in respect of one or more particular subjects or persons: as, for instance, where
at the time of the commission of the alleged crime, the accused knew he was acting
contrary to law, but did the act complained of with a view, under the influence of insane
delusion, of redressing or revenging some supposed grievance or injury, or of producing
some supposed public benefit?
2. What are the proper questions to be submitted to the jury, when a person alleged to be
afflicted with insane delusion respecting one or more particular subjects or persons, is
charged with the commission of a crime (murder, for example), and insanity is set up
as a defence?
3. In what terms ought the question to be left to the jury, as to the prisoner's state of mind
at the time when the act was committed?
4. If a person under an insane delusion as to existing facts, commits an offence in
consequence thereof, is he thereby excused?
5. Can a medical man conversant with the disease of insanity, who never saw the prisoner
previously to the trial, but who was present during the whole trial and the examination
of all the witnesses, be asked his opinion as to the state of the prisoner's mind at the
time of the commission of the alleged crime, or his opinion whether the prisoner was
conscious at the time of doing the act, that he was acting contrary to law, or whether he
was labouring under any and what delusion at the time?

Held

In response to these questions the Judges formulated the M’Naghten Rules (1843) 4
St.Tr.(N.S.) 847. These provide the legal definition of insanity. They provide that a defendant
wishing to rely on the defence of insanity must show that:

i. They laboured under a of reason

ii. Caused by a disease of the mind; so that either
iii. He did not know the nature and quality of his acts, or that he did not know what he was
doing was wrong.

R v Sullivan [1984] A.C. 156

Facts

The defendant, a psychomotor epilepsy sufferer, had an epileptic seizure during which he
kicked the victim in the head violently. He was charged with causing Grievous Bodily Harm
contrary to sections 18 and 20 of the Offences Against the Person Act 1861. He pleaded not
guilty to those charged but upon taking advice from counsel, pled guilty to Assault Occasioning
Actual Bodily Harm contrary to s.47 Offence Against The Person Act 1861 and was
convicted of the offence. At trial evidence was adduced, which was accepted, that the defendant
did not recall the incident; further, two medical experts gave evidence that the defendant’s
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attack on the victim most likely occurred during the postictal stage of the epileptic seizure, at
which stage a sufferer makes automatic movements without being conscious of them. The trial
judge ruled that the appropriate defence in this case is insanity and not automatism.

Issue

The issue for the appeal court was whether epilepsy amounted to a “disease of the mind” within
the meaning of R v M’Naghten (1843) 8 ER 718 and therefore whether insanity is the correct
defence for epilepsy sufferers.

Held

The court agreed with the trial judge’s assessment that epilepsy is a disease of the mind and
that therefore the correct defence is one of insanity. Epilepsy is not caused by an external
influence, but is rather an internal illness, which affects the mind, hence bringing it under
the M’Naghten definition.

R v Kemp [1957] 1 Q.B. 399

Facts

The defendant assaulted his wife with a hammer. He had no previous history of violence and
no apparent motive. He was charged with causing grievous bodily harm contrary to the
Offences Against the Person Act 1861. The defendant argued that the attack was the result of
loss of consciousness linked to arteriosclerosis, with the hardening of the arteries causing
congestion of blood in his brain. This was used by the defence as grounds for a defence of
automatism. The trial judge however directed the jury that the appropriate defence was one of
insanity.

Issue

The issue before the appeal court was whether the trial judge had correctly directed the jury
that insanity is the appropriate defence in this case and more broadly whether
the M’Naghten “disease of the mind” test can apply to physical conditions as well.

Held

The court held that hardening of the arteries could amount to a disease of the mind due to its
effect on a person’s reasoning ability. Essentially the court was not concerned with how a
defendant got to a certain state of mind (through a physical or psychological impairment), but
that he reached that state and was in it at the time of committing the offence. The term “disease

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of the mind” was designed, inter alia, to limit the effect of the term “defect of reason” so as
not to permit stupidity to act as a defence. The trial judge had therefore been correct in directing
the jury that the appropriate defence is insanity and not automatism.

R v Windle [1952] 2 Q.B. 826

Facts

The appellant (W) was convicted of murdering his wife. His wife had regularly spoke of
committing suicide and doctors suggested that she was certifiably insane. Upon arrest, W said
to the police: "I suppose they will hang me for this?"

Issue

On appeal, it was contended that W had been suffering from a form of insanity called folie à
deux which was communicated to him by his wife as a result of his constant attendance to her,
his weak character and her dominating character. Accordingly, the plea of guilty but insane
should have been available to the jury. The key question was whether the M’Naghten rules
regarding insanity (see R v McNaughten 8 E.R. 718) could be applied in a case of
communicated insanity where the accused was not suffering from a specific delusion. Counsel
for the W suggested that that the use of the word “wrong” as applied in McNaughten did not
mean contrary to law but morally wrong. Accordingly, if W believed that what he was doing
was beneficial, despite knowing it was illegal, then he should be excused.

Held

The Court observed that it must not consider whether an act is morally right or wrong but only
whether it is lawful or unlawful. The M’Naghten rules applied to all cases of insanity, whatever
the nature of the insanity or disease of the mind. In the rules, the word “wrong” means contrary
to law. In the present case, W was clearly aware that what he was doing was contrary to law.
Therefore, the judge was correct to deny the plea of insanity from the jury.

R v Burgess [1991] 2 Q.B. 92

Facts

The appellant (B) was charged with wounding with intent to do grievous bodily harm. His
defence was that during the event he was sleep walking and suffering from non-insane
automatism. However, the judge ruled that on the medical evidence available the only defence
available was insanity. The jury found B not-guilty by reason of insanity.

Issue

On appeal, B argued that automatism should not be considered insanity. The Crown argued
that B suffered from an abnormal state of mind and it was irrelevant how it arose. The Court
accepted that there was a failure in B’s mind which caused him to act as he did. The key issue

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was therefore whether that failure was a disease of the mind or, rather, a defect or failure of the
mind not due to disease.

Held

B’s appeal was dismissed. The Court found that the failure in B’s mind was due to an
abnormality which manifested itself in violence and might recur. This amounted to a disease
of the mind and the trial judge’s application of insanity as a defence was therefore correct. In
particular, the Court noted the absence of obvious external factors (such as, for instance,
concussion) which could have caused the failure in B’s mind. The Court adopted the reasoning
of the Supreme Court of Canada in Rabey v the Queen [1980] 2 S.C.R. 513 and found that any
malfunctioning of the mind which has its source in some condition or weakness internal to the
accused may be a ‘disease of the mind’ and, accordingly, a finding of insanity may follow.

R v Hennessy [1989] 1 WLR 297

Diabetes and defences – automatism or insanity in hyperglycaemic cases

Facts

The appellant (a diabetic) was apprehended while driving a stolen car. He later collapsed at the
police station it became apparent that he was having a diabetic episode and that he had not
taken his insulin for several days, at least in part because of emotional turmoil due to being left
by his wife. Evidence was given that hyperglycaemia (which is what was afflicting the
defendant) resulted in drowsiness and possibly degradation of one’s ability to understand what
is happening around them, as well as of their physical and mental abilities. Further, emotional
states such as anxiety and depression can exacerbate the effect. He was charged with both theft
(contrary to the Theft Act 1968 c.60, s.1) and driving while disqualified (contrary to the Road
Traffic Act 1988 c.52, s.103). The appellant did not recall taking the car and at trial relied on
the defence of automatism. The trial judge ruled that automatism does not apply to his condition
and that he should have relied on a plea of insanity instead. The appellant was convicted.

Issue

On appeal against the conviction, the issue was whether the automatism defence had been
available to the appellant or whether insanity is the correct defence for diabetics suffering a
hyperglycaemic episode.

Held

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The trial judge had correctly assessed that insanity is the correct defence to apply to a
hyperglycaemic episode, since this is caused by the underlying condition of diabetes and can
properly be described as a disease of the mind. Further, automatism refers to situations where
the defendant’s actions are involuntary. R v Quick [1973] QB 910 distinguished.

R v Quick and Paddison [1973] Q.B. 910

Facts

The appellant (a nurse at a hospital) was a diabetic who suffered from hypoglycaemia (low
blood sugar). He had taken insulin in the morning for his condition but had not eaten much
during the day and had imbibed alcohol. This lead to an episode in which he blacked out and
attacked his victim, who suffered black eyes, bruising and a fractured nose. He later passed out
and denies any recollection of the events. At trial he was charged with assault occasioning
Actual Bodily Harm contrary to s.47 Offences Against The Person Act 1861 and was
convicted. He had attempted to rely on the defence of automatism, but the trial judge ruled that
only the defence of insanity would be available.

Issue

On Appeal, the issue was whether a hypoglycaemia sufferer can rely on the defence of
automatism or whether only the defence of insanity is available for this condition.

Held

It was held that a sufferer of hypoglycaemia can rely on the defence of automatism because the
associated episodes (and the one in this case) are caused by the insulin (or lack thereof) which
is an external factor, rather than by the diabetes, which is an internal factor. Therefore the
conviction was quashed. No defence would be available for self-induced hypoglycaemia
however. A sufferer of hyperglycaemia on the other hand would have to rely on the defence of
insanity as episodes associated with that condition are caused by naturally occurring high blood
pressure.

Bratty v AG of Northern Ireland [1963] A.C. 411

Facts

The appellant (B) was convicted of the murder of an 18-year-old girl. In his statement to the
police, he said that he had been overcome with a “terrible feeling” and a “sort of blackness”
during the event. At trial, B relied upon the defence of automatism as a result of psychomotor
epilepsy but the trial judge dismissed this defence and did not submit it to the jury.

Issue

On Appeal to the House of Lords, B argued that the trial judge was wrong to dismiss the
automatism defence. It was argued that the burden of proof was on the Crown to prove that (i)

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the acts were conscious and voluntary beyond reasonable doubt; (ii) there was a body of
evidence indicating the act was not voluntary or consciously done and (iii) this body of
evidence should have been left to the jury. The Crown submitted, inter alia, that where the
defence of automatism is based on an internal factor then the onus upon the accused is the same
as on a plea of insanity.

Held

The trial judge was only under a duty to leave the issue of automatism to the jury where the
defence had left a proper evidential foundation for doing so. The trial judge in this case was
right to not leave the defence to the jury as the only cause alleged for the act in question was
an internal factor i.e. a defect in reason from disease of the mind. Furthermore, as B was
deemed to have been sane and reasonable at the time of the killing, he could not be said to lack
intent and, therefore, there was no question of a reduced manslaughter charge.

Burgess (1991) 2 Q.B. 92

The appellant smashed a bottle over a woman's head and then struck her with a video recorder
whilst she was asleep. The appellant had no recollection of the events and claimed he had been
sleepwalking. This claim was supported by medical evidence. He sought to rely on the defence
of automatism, however the trial judge ruled that on the evidence the only defence available
was insanity. The jury returned a verdict of not guilty by reason of insanity. The defendant
appealed contending that the trial judge should have allowed the defence of automatism to be
put before the jury.

Held

The appeal was dismissed. The evidence demonstrated there was an abnormality or disorder,
albeit transitory, due to an internal factor, which had manifested itself in violence and which
might recur.

Lord Lane CJ
"We accept that sleep is a normal condition, but the evidence in the instant case indicates that
sleepwalking, and particularly violence in sleep, is not normal."

Broome v Perkins [1987] 85 Cr. App. Rep 321

Facts

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The defendant (P) was diabetic. He was charged with driving without due care and attention.
At trial, he argued that he had suffered a hypoglycaemic incident and had lapsed into
“automatic driving” whilst driving and although he was not in a coma his reckless driving was
involuntary and automatic. At trial, the lay justices accepted this automatism defence.

Issue

The prosecutor appealed. The key issue was whether the lay justices were correct in law in
finding that a defendant who had erratically driven a motor vehicle for approximately five
miles, during which time he was involved in an accident, was capable of utilising automatism
as a defence. It was established in Bratty v Attorney General for Northern Ireland [1963] AC
386that in cases of insane and non-insane automatism, the judge must only leave the defence
of automatism to the jury where the defence has laid a proper evidential foundation for so
doing.

Held

The Court held that “automatism” implied involuntary movement of the body or limbs and
whether this has occurred is a question of law which requires to proven by evidence. In the
circumstances, the Court did not accept that a car could be driven for several miles without
some degree of control. It must therefore be concluded that for parts of the journey P’s mind
was controlling his limbs and that thus he was driving. Therefore, the automatism defence was
not applicable. The case was remitted with a direction to convict.

DPP v Beard [1920] A.C. 479

The appellant whilst intoxicated raped a 13 year old girl and put his hand over her mouth to
stop her from screaming. She died of suffocation.

Lord Birkenhead LC:

"Under the law of England as it prevailed until early in the 19th century voluntary
drunkenness was never an excuse for criminal misconduct; and indeed the classic authorities
broadly assert that voluntary drunkenness must be considered rather an aggravation than a
defence. This view was in terms based upon the principle that a man who by his own
voluntary act debauches and destroys his will power shall be no better situated in regard to
criminal acts than a sober man.

Where a specific intent is an essential element in the offence, evidence of a state of

drunkenness rendering the accused incapable of forming such an intent should be taken into
consideration in order to determine whether he had in fact formed the intent necessary to
constitute the particular crime. If he was so drunk that he was incapable of forming the intent
required he could not be convicted of a crime which was committed only if the intent was
proved. ... In a charge of murder based upon intention to kill or to do grievous bodily harm, if
the jury are satisfied that the accused was, by reason of his drunken condition, incapable of

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forming the intent to kill or to do grievous bodily harm ... he cannot be convicted of murder.
But nevertheless unlawful homicide has been committed by the accused, and consequently he
is guilty of unlawful homicide without malice aforethought, and that is manslaughter"

R v Kingston [1994] 3 W.I.R. 519

Facts:

Barry Kingston was involuntarily drugged by a friend. While Kingston was intoxicated, his
friend encouraged him to perform sexual acts on a 15 year old boy. The incident had been a set
up by his friend. Kingston was convicted of indecent assault. Kingston’s defence was that if he
had not been drugged, he would not have acted the way he did.

Issues:

Whether the necessary intent was present when the act was committed by Kingston, even when
the defence of involuntary intoxication is available.

Held:

The Court found that although the drugs had essentially done away with Kingston’s inhibitions,
this did not negative the necessary mental element which was found to be present in Kingston’s
conduct. Further, if an intention arose in circumstances for which Kingston had no blame, it is
still an unlawful intent that does not warrant an acquittal. The principle in R v Majewski [1977]
A.C. 443 was applied in that a crime of specific intent requires something more than
contemplation of the prohibited act and foresight of the probably consequences. If a person
becomes so intoxicated that he becomes “legless” and commits a crime, it is a defence to a
crime of specific intent but not basic intent, as he is still somewhat aware of himself and
therefore liable. Kingston was found to be aware that his conduct was wrong as he would not
have done it if he was not intoxicated. Involuntary intoxication in circumstances where
Kingston was found to have possessed the necessary intent needed to commit the crime, was
not enough to negative the mens rea element. The appeal was allowed and the conviction was
reinstated.

Attorney General for Northern Ireland v Gallagher [1963] A.C. 349

Facts:

Patrick Gallagher was convicted of murdering his wife. It was also known that he was a
psychopath.

Issues:

Whether Gallagher was insane at the time of killing or was incapable of forming an intent
necessary to constitute murder as he was drunk. Secondly, whether the M’Naughten test had
been correctly applied.

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Held:

The court held that there had been no misdirection by the trial judge. Lord Denning reaffirmed
the law on drunkenness as a defence to crime. Lord Denning applied the test from DPP v
Beard[1920] A.C. 479, in that, if Gallagher was found to be so drunk that he did not know
what he was doing, no intent to murder is formed. Beard was distinguished as Gallagher was
aware of what he was doing and had formed an intent to kill his wife, remembering he had
done so afterwards. The second part of the test was that if Gallagher’s drinking had bought
about a distinct disease of the mind, such that he is temporarily insane within the application
of M’Naughten’s Rules (the insanity test) and that he did not know what he was doing or what
he was doing was wrong, then Gallagher could rely on the defence of insanity. Lord Denning
found that alcohol had not caused him a ‘disease of the mind’. Even though he was a
psychopath, this was not brought on by drink. Gallagher was found to have committed murder
as there was clear evidence of premeditation. The fact that he got drunk before the act and was
drunk when committing it was only to provide him with a little ‘dutch courage’ required to
commit murder. The appeal was allowed, and the conviction of murder was restored.

DPP v Majewski [1977] A.C. 433

Facts

The appellant (M) was convicted following a brawl in a pub in which he assaulted the
landlord and customers and the police officers who arrested him. His defence was that he was
under the influence of drink and drugs at the time. The judge directed the jury that this was an
invalid defence. M appealed on the basis that the judge had misdirected the jury but his
appeal was dismissed.

Issue

In the House of Lords, counsel for M argued, inter alia, that guilty intent was required to be
proven by the prosecution and that any evidence of intoxication is relevant to rebut the
inferences which can properly be drawn from the fact that the accused did the act alleged to
amount to an assault. The Court was required to consider whether a defendant may be
convicted of an assault in circumstances where, by virtue of self-induced intoxication, he did
not intend commit the act alleged to constitute assault.

Held

Their Lordships drew a distinction between offences of “basic intent” and “specific intent”
and held that in cases of the former, voluntary intoxication cannot form the basis for a
defence even if the intoxication produces a state of automatism. This means that a voluntarily
intoxicated defendant, such as M, can be convicted even where the prosecution has not
proven intent. In reaching this conclusion, their Lordships emphasised the importance of the

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criminal law in protecting law-abiding citizens and the defendant’s guilt in cases such as this
is supplied by the act of self-intoxication with reckless disregard for the possible
consequences.

R v Richardson and Irwin [1999] Crim LR 494 CA

Facts

The appellant, a registered dentist, had her licence to practice suspended by the General Dental
Council in 1996 but continued to treat patients, whom she did not inform of the suspension. On
this basis, the appellant was charged with six counts of assault occasioning actual bodily harm.
The judge at trial ruled against the defence submission that the patients treated by the appellant
after her disqualification had consented to their respective procedures, noting that the fraud as
to her credentials vitiated any such consent.

Issue

On appeal it was argued by counsel for the appellant that the judge at trial had erred in striking
out the submission of the defence, in that not all deceptions amounted to fraud of a type that
could vitiate consent; only those which spoke to the nature of the act itself or the identity of the
person perpetrating the fraud were capable of doing so. It thus fell to be determined by the
Court of Appeal whether a deception as to a person’s attributes, in this case their qualifications,
would suffice to negative the consent of the deceived party.

Held

The Court of Appeal confirmed, allowing the appeal, that fraud only negatived consent in
circumstances where the victim was deceived as to either the nature of the act performed or the
identity of those performing it. It was noted that lesser forms of deception might suffice for a
claim to damages in tort, however. Importantly, the Court held that the phrase ‘identity of the
person’ did not extend to that person’s qualifications or attributes.

R v Lipman [1970] 1 QB 152 CA

Facts:

Robert Lipman was convicted of manslaughter for killing his friend while on a bad LSD trip.
She suffered two blows to the head and died of asphyxia. He appealed against the conviction.

Issues:

To what extent the law relating to unlawful killing under the influence of drinks or drugs was
altered by s 8 of the Criminal Justice Act 1967 (the Act).

Held:

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The court held that s 8 of the Act required that an unlawful killing under the influence of drink
or drugs had to amount to manslaughter as a minimum conviction. The court applied the test
in R v Church [1966] 1 Q.B. 59, 69, whether a sober and reasonable man would foresee that
there was a risk. It was further found that manslaughter required proof of mens rea to the extent
that a sober and reasonable person could have foreseen the risks of taking drugs and some harm
resulting. Determination of a guilty mind was necessary at a subjective level under the Act. In
consideration of Lipman’s state of mind at the time of the incident, he was found to be
intoxicated, therefore the court held that as drunkenness is no defence to a criminal charge, and
see as there had deliberately been no distinction made between the effects of drugs and that of
alcohol, Lipman was guilty as charged. The trial Judge’s finding was upheld in that Lipman
knew that the acts performed on the victim were dangerous and likely to result in death, knew
that drugs were dangerous and risked serious harm to another or himself and knew that taking
drugs in those circumstances was grossly negligent and reckless. The appeal was dismissed,
and the conviction upheld.

Worksheet 6 Cases (General Defenses part 2)

Beckford v R [1998] A.C. 130

The appellant was a police officer. He was issued with a shot-gun and ammunition and sent
with a number of other armed police officers to a house. According to the appellant a report
had been received from Heather Barnes that her brother Chester Barnes was terrorising her
mother with a gun. Heather Barnes, however, denied that she had made a telephone call to the
police or that her brother was armed.

The appellant said that on arriving at the house, he saw a man run from the back door with an
object which appeared to be a firearm. As the police followed him, the appellant stated that
Barnes fired at the police, in response to this he fired back, shooting and killing Barnes. In fact
no gun was ever found. The trial judge directed the jury:

"A man who is attacked in circumstances where he reasonably believes his life to be in danger
or that is in danger of serious bodily injury may use such force as on reasonable grounds he
thinks necessary in order to resist the attack and if in using such force he kills his assailant he
is not guilty of any crime even if the killing is intentional."

The jury convicted him of murder (which carries the death penalty in Jamaica). He appealed
contending the judge was wrong to direct that the mistake needed to be reasonably held.

Held:

The appeal was allowed and the conviction was quashed. The test to be applied for self-defence
is that a person may use such force as is reasonable in the circumstances as he honestly believes
them to be in the defence of himself or another.

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Palmer v The Queen 16 W.I.R. 499 PC

Issue
Whether in cases where on a charge of murder an issue of self-defense is left to the jury it will
in all cases be obligatory to direct the jury that if they found that the accused while intending
to defend himself had used more force than was necessary in the circumstance, they should
return a verdict of guilty manslaughter.

Held
After setting out the elements of the defense of self-defense, Lord Morris of Borth-y-Gest said:
‘if the prosecution has shown that what was done was not done in self-defense then that issue
is eliminated from the case. If the jury consider that the accused acted in self-defense or if the
jury are in doubt as to this then they will acquit. The defense of self-defense either succeeds so
as to result in an acquittal or it is disproved in which case as a defense it is rejected.

Ratio: It is a defense in criminal law to a charge of assault if the defendant had an honest belief
that he was going to be attacked and reacted with proportionate force: ‘If there has been an
attack so that defense is reasonably necessary, it should be recognized that a person defending
himself cannot weigh to a nicety the exact measure of necessary defensive action. If a jury is
of the opinion that in a moment of unexpected anguish the person attacked did only what he
honestly and reasonably thought was necessary, that should be regarded as most potent
evidence that only reasonably defensive action was taken.’

R v Owino [1996] 2 Cr. App. R. 128 (CA)

The court considered the degree of force a defendant could use in self defense: The test of the
appropriate degree of force a person was entitled to use in self-defense was not any degree of
force which he believed was reasonable, however well or ill-founded the belief. A jury must
decide whether a defendant honestly believed that the circumstances were such as required him
to use force to defend himself from an attack or threatened attack. The defendant must be
charged in accordance with his honest belief, even though that belief may be mistaken. But the
jury has then to decide whether the force used was reasonable in the circumstances as he
believed them to be: ‘A jury must decide whether a defendant honestly believed that the
circumstances were such as required him to use force to defend himself from an attack or
threatened attack; the jury has then to decide whether the force used was reasonable in the
circumstances.’

Attorney General’s Reference (No. 2 of 1983) [1984] QB 456

The defendant was a shopkeeper. His shop was in the center of extreme riots which were
taking place. On the night of the 11th/12th July 1981, £600 worth of damage was done to his
shop and £400 worth of his goods were stolen. After this attack he remained in his shop
without sleep and in fear of further attack from 1.30 a.m. until the morning of 14th July. He
was in fear that he and his property might be the subject of further attack. He made 10 petrol

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bombs to protect himself in case he was subject to further attacks. He was charged with
offences under section 4 of the Explosive Substances Act 1883. He raised the defense of self-
defense and the jury acquitted him. The Attorney General referred a question on a point of
law to the Court of Appeal as to whether the defense of self-defense could be used to cover
preparing for attack.

Held:

The defense could be allowed for offences based on possession in preparation of attacks
provided the possession ceases when the danger of attack is no longer imminent.

Lord Lane CJ:

The defendant in this case said that his intentions were to use the petrol bombs purely to
protect his premises should any rioters come to his shop. It was accordingly open to the jury
to find that the defendant had made them for the reasonable protection of himself and his
property against this danger. The fact that in manufacturing and storing the petrol bombs the
defendant committed offences under the Act of 1875 did not necessarily involve that when he
made them his object in doing so was not lawful. The means by which he sought to fulfil that
object were unlawful, but the fact that he could never without committing offences reach the
point where he used them in self-defence did not render his object in making them for that
purpose unlawful. The object or purpose or end for which the petrol bombs were made was
not itself rendered unlawful by the fact that it could not be fulfilled except by unlawful
means. The fact that the commission of other offences was unavoidable did not result in any
of them becoming one of the defendant's objects.

In our judgment a defendant is not left in the paradoxical position of being able to justify acts
carried out in self-defence but not acts immediately preparatory to it. There is no warrant for
the submission on behalf of the Attorney General that acts of self-defence will only avail a
defendant when they have been done spontaneously. There is no question of a person in
danger of attack "writing his own immunity" for violent future acts of his. He is not confined
for his remedy to calling in the police or boarding up his premises.

He may still arm himself for his own protection, if the exigency arises, although in so doing
he may commit other offences. That he may be guilty of other offences will avoid the risk of
anarchy contemplated by the Reference. It is also to be noted that although a person may
"make" a petrol bomb with a lawful object, nevertheless, if he remains in possession of it
after the threat has passed which made his object lawful, it may cease to be so. It will only be
very rarely that circumstances will exist where the manufacture or possession of petrol bombs
can be for a lawful object.

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Re A (Conjoined twins: Medical Treatment) [2001] 1 FLR 1 CA

Mary and Jodie were conjoined twins joined at the pelvis. Jodie was the stronger of the two
and capable of living independently. However, Mary was weaker, she was described as
having a primitive brain and was completely dependent on Jodie for her survival. According
to medical evidence, if the twins were left as they were, Mary would eventually be too much
of a strain on Jodie and they would both die. If they operated to separate them, this would
inevitably lead to the death of Mary, but Jodie would have a strong chance of living an
independent life. The parents refused consent for the operation to separate them. The doctors
applied to the court for a declaration that it would be lawful and in the best interests of the
children to operate. The High court granted the declaration claiming the operation would be
akin to withdrawal of support i.e. an omission rather than a positive act and also the death of
Mary, although inevitable, was not the primary purpose of the operation. The parents
appealed to the Court of Appeal claiming the learned judge erred in holding that the operation
was (i) in Mary's best interest, (ii) that it was in Jodie's best interest, and (iii) that in any event
it would be legal.

Held: The appeal was dismissed. The operation could be lawfully carried out by the doctors.

LJ Robert Walker:

1. The feelings of the twins' parents are entitled to great respect, especially so far as they
are based on religious convictions. But as the matter has been referred to the court the
court cannot escape the responsibility of deciding the matter to the best of its
judgment as to the twins' best interests.
2. The judge erred in law in equating the proposed surgical operation with the
discontinuance of medical treatment (as by disconnecting a heart-lung machine).
Therefore the Court of Appeal must form its own view.
3. Mary has a right to life, under the common law of England (based as it is on Judeo-
Christian foundations) and under the European Convention on Human Rights. It
would be unlawful to kill Mary intentionally, that is to undertake an operation with
the primary purpose of killing her.
4. But Jodie also has a right to life.

5. Every human being's right to life carries with it, as an intrinsic part of it, rights of
bodily integrity and autonomy - the right to have one's own body whole and intact and
(on reaching an age of understanding) to take decisions about one's own body.
By a rare and tragic mischance, Mary and Jodie have both been deprived of the bodily
integrity and autonomy which is their natural right. There is a strong presumption that
an operation to separate them would be in the best interests of each of them.

6. In this case the purpose of the operation would be to separate the twins and so give
Jodie a reasonably good prospect of a long and reasonably normal life. Mary's death
would not be the purpose of the operation, although it would be its inevitable
consequence. The operation would give her, even in death, bodily integrity as a
human being. She would die, not because she was intentionally killed, but because her
own body cannot sustain her life.

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7. Continued life, whether long or short, would hold nothing for Mary except possible
pain and discomfort, if indeed she can feel anything at all.

8. The proposed operation would therefore be in the best interests of each of the twins.
The decision does not require the court to value one life above another.

9. The proposed operation would not be unlawful. It would involve the positive act of
invasive surgery and Mary's death would be foreseen as an inevitable consequence of
an operation which is intended, and is necessary, to save Jodie's life. But Mary's death
would not be the purpose or intention of the surgery, and she would die because
tragically her body, on its own, is not and never has been viable.
I would therefore dismiss this appeal.

LJ Brooke:

If a sacrificial separation operation on conjoined twins were to be permitted in circumstances

like these, there need be no room for the concern felt by Sir James Stephen that people would
be too ready to avail themselves of exceptions to the law which they might suppose to apply
to their cases (at the risk of other people's lives). Such an operation is, and is always likely to
be, an exceptionally rare event, and because the medical literature shows that it is an
operation to be avoided at all costs in the neonatal stage, there will be in practically every
case the opportunity for the doctors to place the relevant facts before a court for approval (or
otherwise) before the operation is attempted.

According to Sir James Stephen, there are three necessary requirements for the application of
the doctrine of necessity:

(i) the act is needed to avoid inevitable and irreparable evil;

(ii) no more should be done than is reasonably necessary for the purpose to be achieved;
(iii) the evil inflicted must not be disproportionate to the evil avoided.
Given that the principles of modern family law point irresistibly to the conclusion that the
interests of Jodie must be preferred to the conflicting interests of Mary, I consider that all
three of these requirements are satisfied in this case.

Martin v R [2001] EWCA Crim 2245

Martin had shot two people that were trying to burgle his home. He killed one of them and
wounded the other. At the initial trial, Martin attempted to claim self-defence but was
unsuccessful. He was convicted by a majority of 10 to 2 for murder and wounding with intent.
Martin was subsequently found to have a long standing, paranoid personality disorder. He later
contended that his illness had affected how he measured the risk in the situation and appealed
his conviction.

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Issue

Martin relied on the case of R v Smith (Morgan James) [2001]which found that a jury should
take into account a characteristic which would affect the self-control of an individual in a case
which involved provocation. On this basis, the legal issue in question was whether the jury
should have been able to consider Martin’s personality disorder alongside his defence in light
of the circumstances.

Held

Martin’s appeal was allowed in part. It was held that provocation and self-defence were
different and that whilst an accused could employ the case of R v Smith for psychiatric
consideration in provocation cases, it would only be in exceptional circumstances that this
could be relied upon in understanding whether an individual had used reasonable force in self-
defence. It was accepted however that physical characteristics could be taken into account. As
a result of fresh evidence in relation to diminished responsibility, Martin’s conviction for
murder was quashed and replaced for a conviction for manslaughter by way of diminished
responsibility. Martin was sentenced to five years imprisonment.

R v Gladstone Williams [1984] 78 Cr. App. R. 276

The appellant witnessed a man attack a youth. He rushed to the aid of the youth and hit the
attacker. In fact the youth had just committed a mugging and the attacker had wrestled him to
the ground to prevent him escaping. The appellant was convicted of ABH under s.47 of the
Offences Against the Person Act 1861. He appealed contending that the trial judge gave a
misdirection to the jury in requiring the mistake to be a reasonably held mistake.

Held:

The appeal was allowed and the appellant's conviction was quashed.

Lord Lane CJ:

"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 or that a crime was not being
committed and so on. In other words the jury should be directed first of all that the
prosecution have the burden or duty of proving the unlawfulness of the defendant's actions;
secondly, if the defendant may have been labouring under a mistake as to the facts, he must
be judged according to his mistaken view of the facts; thirdly, that is so whether the mistake
was, on an objective view, a reasonable mistake or not.
In a case of self-defence, where self-defence or the prevention of crime is concerned, if the
jury came to the conclusion that the defendant believed, or may have believed, that he was
being attacked or that a crime was being committed, and that force was necessary to protect

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himself or to prevent the crime, then the prosecution have not proved their case. If however
the defendant's alleged belief was mistaken and if the mistake was an unreasonable one, that
may be a powerful reason for coming to the conclusion that the belief was not honestly held
and should be rejected. Even if the jury come to the conclusion that the mistake was an
unreasonable one, if the defendant may genuinely have been labouring under it, he is entitled
to rely upon it."

DPP v Morgan [1976] AC 182 (HL)

The defendant was a Royal Air Force Pilot and he had invited his friends over to have sexual
intercourse with his wife. He told them that any signs of struggle were not to be seen as a lack
of consent and that she enjoyed it. The men were convicted of rape, while Morgan was
convicted of aiding and abetting his wife. The men had argued that they had the honest belief
that the complainant had consented to sexual intercourse.

Issues

The defendant appealed on the direction of the trial judge. The issue in this case was concerning
whether there could be a conviction for rape if the defendant honestly believed that the woman
consented to sexual intercourse, if his belief was not based on reasonable grounds.

Held

It was held that as long as a belief was genuine and honest pertaining to consent, it did not have
to be a reasonable belief for a defence to rape. The focus was on the mens rea of rape; there
had to be an intention to commit the crime, as well as a lack of consent. There was a requirement
to know the woman had not consented or reckless to whether she did. Despite this decision, the
conviction was upheld, as no reasonable jury would have found them not guilty, even if directed
correctly by the judge. The complainant had clearly communicated her lack of consent for
sexual activity in this case.

Williams (1983) 78 Cr. App. R.

Ratio: The defendant believed that the person whom he assaulted was unlawfully assaulting
a third party. That person was a police officer, who said he was arresting the other, but did
not show his warrant card.

Held:
Lord Lane CJ said: ‘The reasonableness or unreasonableness of the defendant’s belief is
material to 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 recognize that the victim was not consenting and so on.’ and ‘Even if
the jury come to the conclusion that the mistake was an unreasonable one, if the defendant
may genuinely have been laboring under it, he is entitled to rely on it.’

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Ratio:
Lord Lane CJ: ‘In a case of self-defense, where self-defense or the prevention of crime is
concerned, if the jury come to the conclusion that the defendant believed, or may have
believed, that he was being attacked or that a crime was being committed, and that force was
necessary to protect himself or to prevent the crime, then the prosecution have not proved
their case. If, however, the defendant’s alleged belief was mistaken and if the mistake was an
unreasonable one, that may be a powerful reason for coming to the conclusion that the belief
was not honestly held and should be rejected. Even if the jury come to the conclusion that the
mistake was an unreasonable one, if the defendant may genuinely have been laboring under
it, he is entitled to rely on it.’

R v Kimber [1983] 1 WLR 118 (CA)

For mens rea, it is the defendant’s belief, not the grounds on which it is based, which goes to
negative the intent. 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.
There had to be evidence that the appellant had intended to do what he did unlawfully.
However, ‘recklessness’ is established by ‘indifference’ to the woman’s wishes, ‘aptly
described in the colloquial expression, ‘Couldn’t care less”.

Lawton LJ said: ‘The offence of indecent assault is now statutory: see section14 of the Sexual
Offences Act 1956. The prosecution had to prove that the appellant made an indecent assault
on Betty. As there are no words in the section to indicate that Parliament intended to exclude
mens rea as an element in this offence, it follows that the prosecution had to prove that the
appellant intended to commit it. This could not be done without first proving that the
appellant intended to assault Betty. In this context assault clearly includes battery. An assault
is an act by which the defendant intentionally or recklessly causes the complainant to
apprehend immediate, or to sustain, unlawful personal violence . . In this case the appellant
by his own admissions did intentionally lay his hands on Betty. That would not, however,
have been enough to prove the charge. There had to be evidence that the appellant had
intended to do what he did unlawfully. When there is a charge of indecent assault on a
woman, the unlawfulness can be proved . . by evidence that the defendant intended to cause
bodily harm. In most cases, however, the prosecution tries to prove that the complainant did
not consent to what was done. The burden of proving lack of consent rests upon the
prosecution: see Reg v May [1912] 3 KB 572, 575, per Lord Alverstone CJ. The consequence
is that the prosecution has to prove that the defendant intended to lay hands on his victim
without her consent. If he did not intend to do this, he is entitled to be found not guilty; and if
he did not so intend because he believed she was consenting, the prosecution will have failed
to prove the charge. It is the defendant’s belief, not the grounds on which it was based, which
goes to negative the intent.’

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R v Lee [2001] 1 Cr. App. R 19 CA

The appellant had failed a breath test. He looked at the test result and saw an air bubble
which pushed the test over the limit. When the officer tried to arrest him for drink driving the
appellant punched him. He was convicted of assaulting a police officer with intent to resist
arrest under s.38 Offence Against the Person Act 1861. He appealed contending that he had a
genuine belief that the arrest was unlawful.

Held: The mistake was one of law and therefore was of no defense.

R v Howe [1987] AC 417 (HL)

Facts

In the first case, the two appellants, Howe and Bannister, and the victim were driven by M to
an isolated area, where they assaulted the victim and M killed him. Similarly, the three jointly
strangled another victim and a third victim managed to escape. They were charged with murder
on two counts and with a conspiracy of murder on one count. Howe and Bannister claimed that
they committed the crimes because they feared for their own lives if they did not do as M
directed. They were convicted on the three counts.

In the second case, the two appellants, Burke and Clarkson, were charged with murder of a
man killed by Burke. Burke argued that he agreed to kill the victim out of fear that Clarkson
would kill him, but the gun went off accidentally. The judge directed the jury that Burke could
not rely on duress in relation to the charge of murder but left it to the jury to determine whether
the issue of duress meant that Burke’s act was unintentional and therefore, the offence was
manslaughter. Both Burke and Clarkson were convicted of murder.

Issue

(1) Is duress available as a defense to a charge of murder?

(2) Is the conviction of murder of a person exercising duress maintainable if the person under
duress is convicted of manslaughter?

Held

(1) Duress is not a defense to a charge of murder, whether the accused acted to protect his own
life or the life of his family. Accordingly, the defense is not available to the person who killed
the victim or those who participated in the murder as principals in the second degree.

(2) If the person under duress is convicted of manslaughter, the person exercising duress can
be convicted of murder regardless of this fact.

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R v Gotts [1992] 1 All ER 832

Facts

Gotts, a sixteen-year-old boy, tried to kill his mother as he claimed that his father had threatened
to shoot him unless he did so. Gotts stabbed his mother and caused serious injuries from which
she survived. Gotts was charged with attempted murder. The trial judge ruled that the defense
of duress was not available to him on a charge of attempted murder and instructed the jury to
not consider this matter. Following this, Gotts changed his plea to guilty and appealed the
conviction based on the judge's jury direction.

Issue

The key legal issue in this case was whether the defense of duress was available to Gotts on
the basis that he was charged with attempted murder. The court would be required to analyze
the common law and relevant pieces of legislation to understand in which circumstances the
defense of duress applied.

Held

Gotts’ appeal was dismissed. The court recognized that there was no English authority which
dealt directly with duress under a charge of attempted murder. However, the court followed R
v Howe & Bannister (1987) which maintained that the defense of duress would not be
available. This was based on the fact that that the law regarded the sanctity of life and felt its
protection was of paramount importance. On this basis, it would be difficult to reconcile
attempted murder (where the accused has an intention to kill), with murder where a punishable
mens rea would suffice if the individual had the intent to cause serious injury.

R v Hasan [2005] UKHL 22

Facts:

Hasan was charged with the crime of aggravated burglary. He was associated with a gang and
relied on the defence of duress, pleading that he was blackmailed into committing the burglary
to prevent his family from being harmed.

Issues:

Whether the defence of duress was available to Hasan and whether his statement to the police
when arrested was admissible evidence under s 76 of the Police and Criminal Evidence Act
1984 (the Act) and deemed to be a confession.

Held:

The court held that the defence of duress was unavailable for Hasan because of his voluntary
gang association and as such, he should have foreseen or ought to have foreseen the risk of

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being subjected to compulsion to commit criminal offences. While he may not have foreseen
that he would be compelled to commit a burglary, his association with the gang and other
persons with a tendency to commit unlawful acts was enough to exclude the defence. Further,
the court found that his confession (argued by the defence to be inadmissible evidence contrary
to s 76 of the Act, was initially intended to be neutral on the face of it. However, its contents
became damaging at trial when it was clear that it was inconsistent with the defence of duress
Hasan was relying on. Therefore, it was admissible evidence under s 76(1) of the Act. The
appeal was allowed and the conviction upheld.

R v Hudson and Taylor [1971] 2 QB 2002 CA

Facts

Hudson and Taylor were two girls who were charged with perjury having given false evidence
by failing to identify an individual in the courtroom, during a trial. They had self-confessed
that the evidence they had given was false and used the defense of duress on the basis that they
had been frightened by threat of injury to them if they had identified the individual. They
argued that they had seen an individual in the courtroom who was known for violent behavior.
The jury was directed that duress could not provide a defense in the circumstances and on this
basis, they were convicted.

Issue

When giving direction to the jury, the recorder directed that as the offence of perjury had taken
place in the courtroom, there was no threat of violence in this instance and therefore the defense
could not be implemented. The issue at hand was whether the danger was 'present' for the
purposes of employing duress as a defense.

Held

Hudson and Taylor’s appeals were allowed, and their convictions were quashed. An essential
part of the defense of duress was that the threat should be enough to neutralize the will of the
accused at the time the crime was committed. On this basis, the jury should have been able to
decide to what extent that the impact of the perceived threat had on the circumstances. It was
held that just because the threats, in this case, could not be implemented at the relevant moment,
it did not mean that the threat was any less 'present’ to neutralize the girls’ will.

R v Abdul – Hussain and Others [1999] Crim LR 570 CA

Facts

Abdul Hussain and the other defendants, in this case, where Shia Muslims that had fled the
Iraqi regime to live in Sudan. During their time in Sudan, they attempted a number of times to
travel to Europe but were unsuccessful. Their passports were subsequently confiscated. Soon
after, the defendants and their families boarded a plane, equipped with plastic knives and hand
grenades. They hijacked the plane, which was originally headed for Jordan and landed at an

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airport in London. They surrendered after eight hours of negotiation and were subsequently
found guilty of hijacking a plane contrary to the Aviation Security Act 1982, section 1.

Issue

The defendants argued that they had feared being deported back to Iraq where they were very
likely to be punished and executed, as all were facing death sentences. The issue for the court
was whether the defense of duress by threat should have been presented to the jury during the
trial.

Held

Their appeals were allowed. The execution of the threat does not have to be instantaneous but
rather the threat of death or serious harm had to operate on the mind of the accused at the time
of committing the offence. The court held that the defense of duress by threat or circumstances
was available to all offences aside from treason, murder or attempted murder. Because of this
case, the court emphasized the need for legislation relating to the defense of duress as the way
in which the law had developed through the common law provided uncertainty.

R v Graham [1982] 1 All ER 801

Paul Graham had been drinking and taking drugs when he and his homosexual partner killed
Graham’s wife. Graham claimed he was under duress as his co-defendant was a violent man.
He was charged with first degree murder. He appealed against the conviction on the basis that
the trial judge applied a subjective test to the defense of duress.

Issues:

Whether an objective or subjective test should be applied when determining whether a

defendant was under duress at the time the act was committed.

Held:

The trial judge was correct in putting to the jury a subjective test and then objective test to
determine if the defense of duress could be relied on by Graham. The Court further held that
while there was no binding authority that determined whether the test of duress should be
purely subjective or objective, it was essential to limit the defense of duress by means of an
objective test. The objective test being the “reasonable man” principle. The court defined the
test as whether Graham was impelled to act as he did because of what he reasonably believed,
and, if he had not acted in accordance with King’s wishes, would he have been killed? The
second prong of the test was if the answer was yes to the first question(s) of the test, would a
sober person of reasonable firmness, sharing Graham’s characteristics, have not responded to
whatever he reasonably believed his co-defendant said by participating in the act of killing?
The fact that Graham’s will had crumbled as a result of alcohol and drugs is irrelevant to the
test and was not required to be considered. Therefore, the appeal was dismissed, and the
conviction stayed.

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R v Shepherd [1987] 86 Crim. App. R 47

Facts

The defendant entered a shop with a view to stealing boxes of goods from it. When charged
with burglary, the defendant raised the defense of duress on the basis that whilst he had
willingly participated in the crime initially, he subsequently lost his nerve. However, the
defendant stated that he felt compelled to continue to contribute to the burglary because he and
his family had been threatened by violence by one of the other participating parties.

Issue

At first instance, it was held that the defense of duress was not available on these facts because
the defendant had voluntarily participated in the criminal act. The issue for the Court of Appeal
was whether the subsequent change of mind was sufficient to allow the defense to be raised at
that stage.

Held

The defense of duress is available where threats of violence to the defendant or those close to
the defendant exist to such an extent that the defendant feels compelled to contribute to the
crime and it would therefore, be unjust to find them criminally liable for their actions (DPP for
Northern Ireland v Lynch [1975] AC 653). It was held here, that the defense would be
available following voluntary involvement in criminal activity if, at the time of the voluntary
involvement, violence was not contemplated. Once the defendant changes their mind and
wishes to cease involvement, the defense will be available if, at that stage, they are aware of
the threat of violence. In other words, the defense will not apply where there is a threat of
violence initially, but at this stage the defendant voluntarily contributes and later changes their
mind.

R v Sharp [1987] QB 853

Sharp joined a gang of robbers that he knew possessed and used firearms. He participated in a
robbery of a post office, in which the leader of the gang shot and killed a victim using a sawn-
off shotgun. Sharp claimed in his trial that he was simply a ‘bagman’ and thought the
ammunition that was loaded into the guns were blank. Sharp also attempted to employ the
defense of duress as he wished to pull out of the robbery but had continued his participation as
the gang leader had pointed a gun at his head and threatened to shoot him if he did not continue.
The trial judge rejected this submission and Sharp was convicted of manslaughter and was
sentenced to a long imprisonment sentence.

Issue

Sharp’s appeal was based on the belief that the trial judge was incorrect when rejecting the
defense of duress under the circumstances and subsequently withdrawing the issue from the

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jury. A key legal issue in this case was whether or not the judge’s direction was correct and
whether or not Sharp could rely on the defense of duress under the circumstances of the case.

Held

The court held that the defense of duress is not available to an individual who voluntarily joins
a criminal gang or organization, particularly if he knew that he might be pressured to commit
an offence. Sharp knew the nature of the gang before he became a member and therefore he
knew that such pressure might exist. Because of this, it was held that the trial judge was correct
to reject the appellant’s submission and therefore Sharp’s appeal was dismissed.

R v Bowen [1996] 2 Cr. App. R. 157 (CA)

Bowen had obtained several electrical goods, over a series of visits to the value of £20,000. He
had done so by applying for a number of ‘instant credit’ deals and paying a portion of the
deposit but not completing the payment for any of the goods concerned. He was arrested as he
attempted to buy a video recorder using the same process. When questioned, he made clear that
he had sold the goods and stopped paying the finance company to which he owed. He
mentioned that he did not know that his actions constituted a criminal offence. He was
subsequently charged with deceptively obtaining services. When Bowen gave evidence, he
claimed that he had acted under duress. He said that two men had threatened him that he and
his family would be petrol bombed if he did not obtain the goods and told that if he went to the
police, his family would be attacked. Bowen was convicted and appealed the decision.

Issue

A specialist was called during the initial trial who gave evidence that Bowen had the reading
age of a child, IQ of 68 and that he was a vulnerable individual. The issue, in this case, was
whether the judge had misdirected the jury by not stating that Bowen’s vulnerability was to be
taken into account when considering the defense of duress. The jury was only told to give
regard to Bowen’s age and gender.

Held

Bowen’s appeal against conviction was dismissed. An accused’s gender, age and possibility of
physical disability are relevant in weighing reasonable behavior. However, low intelligence
was not. On this basis, the direction given to the jury was considered appropriate.

R v Dudley & Stephens [1884] 14 QBD 273

Facts

The two defendants and a boy between the ages of seventeen and eighteen were cast away in
an open boat at sea following a storm. The boat drifted in the ocean and was more than one

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thousand miles from land. After seven days without food and five without water, S suggested
that lots should be drawn with the loser being put to death to provide food for the remaining
two. Subsequently however, D and S colluded to the extent that the boy should be killed so that
they could survive. On the twentieth day, with the agreement of S, D killed the boy and both
the defendants ate him for the following four days until rescue. It was argued that the
defendants believed that in the circumstances they would die unless the boy was killed.

Issue

The issue in this context was whether there was any justification in killing the boy in order for
the defendants to survive. In other words, whether the defendants could plead that the killing
was necessary and thereby give rise to a defense to murder.

Held

The defense of necessity was not available as a defense to murder on these facts. It is not
possible to justify the killing of one individual in order to save the life of another on the basis
that the killing is necessary to do so. Although the judgment is generally accepted and followed
(see Buckole v Greater London Council [1971] Ch 655), the judgment implies that the jury’s
finding that there was no greater justification for killing the boy than for any of the castaways,
suggests that the unavailability of the defense may have resulted from the collusion between
the defendants.

Worksheet 7 Cases (Accomplice Liability)

Salmon [1880] 6 QBD 79

Facts
A, B and C went into a field in proximity to certain roads and houses, taking with them a rifle
which would be deadly at a mile, for the purpose of practising firing with it. B placed a
board, which was handed to him by A, in the presence of C, in a tree in the field as a target.
All three fired shots directed at the board so placed, from a distance of about 100 yards. No
precautions of any kind were taken to prevent danger from such firing. One of the shots thus
fired by one, though it was not proved by which one of them, killed a boy in a tree in a
garden near the field, at a spot distant 393 yards from the firing point.
Held
A, B and C were all found guilty by a jury of manslaughter: Held A, B and C had been guilty
of a breach of duty in firing at the spot in question, without taking proper precautions to
prevent injury to others, and were rightly convicted of manslaughter.

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Mohan v R [1967] 2 AC
Facts
Appellants, R and D, were father and son. During an altercation between D and a mentally
deficient boy, deceased and two other men went to the boy's assistance. A quarrel developed
between D and deceased. While the quarrel continued R arrived with a cutlass, threatened
deceased and chased him in the direction of his (R's) house. As deceased was running, D
emerged from a pepper tree in front of the house armed with a brushing cutlass and barred his
way. One of the two men originally accompanying deceased tried to rescue him. A third man
arrived and was successful in shielding him, whereupon R and D desisted. Deceased who had
minor wounds, a very severe wound on the right leg below the knee and a very severe back
wound was taken to hospital, where he died. Death was caused by embolosis arising from the
severe leg wound, but it was not clear whether the wound in the back was a contributory
cause of death. There was no certainty as to which of appellants inflicted either of the
wounds. Both appellants were convicted of murder and sentenced to death. On appeal they
contended that, unless it was proved which of them inflicted the fatal wound, it was necessary
to prove that they were acting in pursuance of a pre-arranged plan. The appeal was
determined on the assumption that the leg wound might have been the sole cause of death. It
could not be inferred from the evidence that appellants had a pre-arranged plan:
Held
since the two appellants were attacking the same man at the same time with similar weapons
and with the common intention that he should suffer grievous bodily harm, each was present
and aiding and abetting the other and was guilty as a principal offender whether in the first or
second degree, and the prosecution did not have to prove that appellants were acting in
pursuance of a pre-arranged plan.

Wilcox v Jeffrey [1951] 1 All ER 464

Issue
Can Wilcox be convicted of aiding and abetting an offense committed by Hawkins, an
individual whom Wilcox has never met?
Facts
Hawkins is a celebrated saxophone player. Mr. Curtis and Mr. Hughes, owners of a jazz club
in Willesden, invited Hawkins to the United Kingdom to perform a concert. Although Mr.
Curtis and Hawkins had applied for permission for Hawkins to land, their petition was
refused. Wilcox was present when Hawkins landed at the airport. Despite the law, Hawkins
came to the country anyway and a concert was arranged at the Princess Theatre in London.
Wilcox purchased a ticket for the show and subsequently, wrote about that show for
publication in his magazine.
The court found that several of Wilcox’s actions contributed to his conviction on the charge
of aiding and abetting, including:

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1. The fact that Wilcox came to the airport to report the arrival of Hawkins for Jazz
Illustrated showed the important effect Hawkins’ arrival had for the jazz industry.
Further, his arrival was newsworthy to Wilcox, who could report Hawkins arrival in
order to sell copies of the magazine.
2. Wilcox clearly knew that it was an unlawful act for Hawkins to play without permission
in the United Kingdom. Further, Wilcox’s paid presence at the concert, as well as his
verbal encouragement, support the fact that Wilcox was aiding and abetting Hawkins
to play illegally.

The court noted that the decision might have turned out differently had Wilcox paid for his
tickets to the concert yet protested Hawkins’ play while the concert was occurring. This is a
strange result considering the court’s focus on the payment for the tickets. No matter what
Wilcox did when he came to the theatre, his payment for the tickets could be seen as aiding
and abetting Hawkins’ actions just as much as does an article later printed in a magazine. In
fact, the later magazine article might be seen as not really aiding and abetting Hawkins at all.
This is true because the mere fact that an article was published does not mean that Wilcox will
be encouraged to break the laws of the United Kingdom in the future. The fact that Hawkins
was coming to the country to play for a paying audience encourages anyone who paid for tickets
to that show to break the laws of the country on that night only.

Held

Herbert Wilcox (Wilcox), the proprietor of Jazz Illustrated, was charged with aiding and
abetting Coleman Hawkins (Hawkins) in contravention of the Aliens Order of 1920, by failing
to comply with a condition stating that Hawkins shall take no employment, paid or unpaid,
while in the United Kingdom and shall not land in the country without the leave of an
immigration officer.

Ratio Decidendi

Aiding and abetting can be found through the mere encouragement of criminal activity. The
encouragement does not have to be directly communicated to the person committing the
criminal offense.

R v Coney & Others [1882] 8QBD 534

The defendants were engaged in prize fighting. It was held that prize fighting in public was
unlawful, notwithstanding the consent of the individuals involved.

Stephens J:

"When one person is indicted for inflicting personal injury upon another, the consent of the
person who sustains the injury is no defence to the person who inflicts the injury, if the injury
is of such a nature, or is inflicted under such circumstances, that its infliction is injurious to
the public as well as to the person injured. But the injuries given and received in prize-fights

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are injurious to the public, both because it is against the public interest that the lives and the
health of the combatants should be endangered by blows, and because prize-fights are
disorderly exhibitions, mischievous on many obvious grounds. Therefore the consent of the
parties to the blows which they mutually receive does not prevent those blows from being
assaults."

R v Clarkson [1971] 3 All ER 344

Facts

The defendants were drinking when they heard sounds indicating that a woman was being
raped. They entered the room where the sounds came from. Despite their suspicions being
confirmed, the defendants just stood there and did nothing (there was no evidence of their
direct physical involvement) while the rapes were committed. It was possible that the
defendants had an intention to or actually encouraged the rapes. The defendants were
convicted of aiding and abetting the commission of three rapes. They appealed.

Issue

The defendants argued that the judge-advocate failed to appropriately direct the court that it
was for the prosecution to prove by inference that the defendants intended to or actually
encouraged the rapes. They claimed that the directions given left space for the court to think
that the defendants could be found guilty even if the court was not sure the inferences
evidenced an intention to encourage or actual encouragement.

Held

The Courts-Martial Appeal Court held that in order to convict of aiding and abetting, it is not
sufficient to show that the defendants were present during the commission of the principal
offences. The prosecution also had to prove that the defendants actually encouraged the
offence (i.e. it is not even to prove that they intended to encourage the offence). In the present
case, the evidence only proved that the defendants were continuingly and deliberately
present, but this was not enough to conclude that, by their presence, they actually encouraged
the rapes. Consequently, the convictions had to be quashed.

Attorney General’s Reference (No. 1 of 1975)[1975] 2 All ER 684

Facts

The defendant added alcohol to a motorist’s soft drink without the motorist’s knowledge or
consent, despite knowing that the motorist would be driving home soon afterwards. The
motorist was stopped by the police on the way home; his blood alcohol concentration was
above the prescribed limit, contrary to s.6(1) of the Road Traffic Act 1972 and was thus

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convicted of the offence. The defendant was charged with aiding, abetting, counselling or
procuring the commission of the motorist’s offence under s.8 of the Accessories and
Abettors Act 1861 but was later acquitted due to no case to answer. The Attorney-General
made a reference to the Court of Appeal.

Issue

The Attorney-General requested the Court of Appeal to advise him whether the defendant
was entitled to the ruling of no case to answer, which was based on the argument that there
was no shared intention between the aider and abettor (the defendant) and the perpetrator of
the principal offence (the motorist). It was also found that the defendant did not positively
encourage the motorist to drive – even though he knew the motorist was about to do so.

Held

The Court held that since the defendant put alcohol into the motorist’s drink surreptitiously,
i.e. without the motorist’s knowledge, and this alcoholic drink caused the motorist’s offence
(as the motorist would not have driven, had he known that he consumed alcohol), the
defendant actually procured the commission of the motorist’s offence. As a result, the ruling
of no case to answer was wrong and the defendant was not entitled to this ruling.

R v Bainbridge [1960] 1 QB 129

Facts

The defendant purchased oxygen-cutting equipment. Weeks later, the equipment was used in
a bank break-in and was left behind by the thieves. The defendant was convicted as an
accessory before the fact. The conviction was founded upon the argument that the defendant
purchased the equipment on behalf of the thieves and knew that it was to be used for breaking
in to premises. The defendant appealed.

Issue

The defendant argued that even though he had suspected that the equipment might be wanted
for some illegal purpose, he denied knowing actually what it would be used for. He claimed
that the trial judge had failed to properly direct the jury in terms of what needs to be
established in order to be able to convict someone of being accessory before the fact.

Held

The Court took the view that the trial judge had not erred in his directions to the jury. The
Court held that it was sufficient to prove that the defendant knew about the thieves’ general
intention to commit a crime, similar in type to the one subsequently actually committed. If,
equipped with such knowledge, the defendant still did something to help in the commission
of the crime (e.g. bought equipment he knew might be used in committing the crime like in
the present case), he can be found guilty of being an accessory before the fact. In other words,
the defendant does not need to know the specific time and date and location of the principal

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offence in advance in order to be found guilty of being an accessory before the fact. The
defendant’s conviction was thus upheld.

Ferguson v Weaving [1951] 1 KB 814

Facts

The licensee instructed the waiters to make sure that customers in his public house did not
continue to drink intoxicating substances on the premises after 10 pm. Shortly before 10 pm,
the licensee issued an appropriate signal (by electric lighting) to warn about taking the last
orders. Another signal was given at 10 pm. One group of waiters ignored the instructions and
failed to ensure that drinks were no longer consumed by the time the second signal came. The
police entered the premises shortly after 10pm and found that several customers were still
drinking alcohol. They charged the customers with an offence under s.4(b) of the Licensing
Act 1921 for consuming alcohol outside of permitted hours; they also charged the licensee
with counselling and procuring this offence.

Issue

The licensee argued that there was no provision in the Licensing Act 1921 that created a
substantive offence of a licensee’s failure to stop people from consuming intoxicating
substances outside of permitted hours. Thus, such an omission cannot in itself make the
licensee guilty of counselling and procuring her customers to violate s.4, when she was not
directly aware of the customers’ actions and she already entrusted the waiters (who
were actuallyaware of the situation) the control and management of the premises.

Held

The Court, accepting the licensee’s argument, held that the licensee could not be guilty of
counselling and procuring, if she had no knowledge of the principal offence. In order to find
the licensee guilty, it should be proved that she knew the essential matters which constituted
the offence. As the licensee entrusted the waiters to control and manage the room in question,
and as the 1921 Act did not make knowing permission a substantive offence, the waiters’
knowledge could not be imputed to her and she could not have counselled or procured the
commission of the offence.

Becerra [1975] 62 Cr App R 212

The defendants sought leave to appeal against their convictions for a brutal and horrific
murder. Becerra suggeste dtat he had wanted to withdraw from the event before the murder
took place.
Held: The appeal failed: ‘ in the circumstances then prevailing, the knife having already been
used and being contemplated for further use when it was handed over by Becerra to Cooper
for the purpose (if necessary) of avoiding by violent means the hazards of identification, if
Becerra wanted to withdraw at that stage, he would have to ‘countermand’, to use the word
that is used in some of the cases or ‘repent’ to use another word so used, in some manner
vastly different and vastly more effective than merely to say ‘Come on, let’s go’ and go out
through the window.’

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Croft [1944] 1 KB 295

A person who was present at the suicide of another and who assisted or encouraged the
suicide, is guilty of murder as a principal in the second degree. The survivor of a suicide pact
was properly convicted of murder. The court considered liability for suicide as an accessory.
Lawrence J said: ‘Counsel for the appellant also complains that the summing-up does not
contain any reference to the possibility of the agreement to commit suicide having been
determined. It is true that the learned judge does not deal expressly with that matter except in
a passage where he says: ‘Even if you accept his statement in the witness-box that the vital
and second shot was fired when he had gone through that window, he would still be guilty of
murder if she was then committing suicide as the result of an agreement which they had
mutually arrived at that that should be the fate of both of them, and it is no answer for him
that he altered his mind after she was dead and did not commit suicide himself. The
authorities, however, such as they are, show, in our opinion, that the appellant, to escape
being held guilty as an accessory before the fact must establish that he expressly
countermanded or revoked the advising counselling, procuring or abetting which he had
previously given.’
. . and ‘We are of opinion that the circumstances in this case did not amount, and could not
reasonably have been held to amount, to such a clear countermanding or determination of the
agreement as would discharge the appellant from liability to a charge of murder if that which
occurred was the result of what he had done before. He never said anything to the woman
which could have removed from her mind the effect of the counsel which he had previously
given her.’

R v Saunders & Archer [1576] 2 Plow 473

The defendant gave his wife an apple which he had poisoned with arsenic. He wanted to kill
her so that he could marry another. The wife took a bite from the apple then gave it to their
daughter. The daughter died.

Held: The defendant was liable for the murder of his daughter. His intention to kill his wife
was transferred to the daughter.

Hui Chu Ming v R [1991] 3 All ER PC

(Hong Kong) The defendant was charged with aiding and abetting a murder. A, carrying a
length of water pipe and accompanied by the defendant and four other youths, seized a man
and A hit him with the pipe, causing injuries from which he died. No witness saw the
defendant hit the man, who was an innocent victim, or play any particular part in the assault.
A was charged with murder, with three of the group. Two pleaded guilty to manslaughter and
other was acquitted. The jury acquitted A of murder but convicted him of manslaughter. The
defendant was later indicted for murder with another youth whose plea of guilty to
manslaughter was accepted. The defendant refused an offer by the prosecution to accept a
plea of guilty to manslaughter. He was prosecuted for murder as a party to a joint enterprise

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in which A had murdered the victim. The judge did not admit evidence of A’s acquittal of
murder and conviction of manslaughter only. The defendant was convicted of murder and
sentenced to death.
Held: The conviction or acquittal of the principle was both irrelevant and inadmissible. A
conviction for an aider and abettor was not dependent upon a conviction of the principal
offender. In general, an acquittal upon a different charge in an earlier trial is irrelevant to the
issues before the court in the second trial.
Lord Griffiths said: ‘Their Lordships are of the view that the more recent English cases
established that the rejection of an improperly obtained confession is not dependent only
upon possible unreliability but also upon the principle that a man cannot be compelled to
incriminate himself and upon the importance that attaches in a civilised society to proper
behaviour by the police towards those in their custody. All three of these factors have
combined to produce the rule of law applicable in Hong Kong as well as in England that a
confession is not admissible in evidence unless the prosecution establish that it was
voluntary.’
Lord Lowry: ‘a serious anomaly’ had occurred but the prosecution of the defendant for
murder rather than manslaughter was not so unfair or wrong as to constitute an abuse of
process. There was ample evidence to support the defendant’s conviction. ‘Provided the case
was conducted with propriety, it is difficult to see how the judge could properly have
intervened to prevent counsel from seeking or the jury from returning a verdict which was
justified by the evidence. The other answer is that, if it was not an abuse to indict and
prosecute for murder, it could scarcely be an abuse to seek a verdict which was justified by
the evidence.

R v Tyrell [1894] 1 QB 710

The court considered whether a girl between the ages of 13 and 16 could be convicted of
aiding and abetting a male who had had unlawful sexual intercourse with her.

Held: A person for whose protection an offence has been created cannot be convicted of
aiding and abetting a person who commits the offence against her. Parliament could not have
intended that a statute passed to protect girls also made girls punishable under it.

Pickford [1995] 1 CAR 420 at 428

The defendant pleaded guilty to inciting a boy who might have been under 14 at the time to
commit incest with the boy’s mother. On appeal it was argued that the defendant had pleaded
guilty to an offence unknown to the law, since if the boy had been under 14 at the time, he
was conclusively presumed to be incapable of intercourse. It was however accepted that the
indictment could have been framed so as to charge the defendant with inciting the mother
rather than the son. The court accordingly applied the proviso ‘on the footing that the
[defendant] was plainly guilty of an offence with which, on the undoubted facts, he could
have been charged upon an indictment somewhat differently drawn’.

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Stewart & Schofield [1995] 1 CAR 441

Facts
The two appellants and a co-accused were indicted for the robbery and murder of a Pakistani
shopkeeper. The co-accused pleaded guilty to both charges and the two appellants pleaded
guilty to robbery but denied that they had taken part in the murder, claiming that they thought
the shopkeeper would only be threatened, that the co-accused who carried out the killing had
done so out of racial hatred and not as part of the robbery, that they did not know that the co-
accused was motivated by racial hatred or would be liable to use excessive violence, and that
the attack on the shopkeeper did not form part of their joint enterprise. At the trial of the
appellants for murder the judge directed the jury that if they decided that they were not guilty
of murder it was open to them to find the appellants guilty of manslaughter if as part of the
joint criminal enterprise they were agreeable to or realised, or if they had thought about it
must have realised, that the co-accused might, in the heat of the moment or in the excitement
or tension of the occasion, strike the shopkeeper and inflict bodily injury on him. The jury
found the appellants not guilty of murder but guilty of manslaughter. The appellants appealed
against their conviction for manslaughter, contending that the judge's direction to the jury on
manslaughter was wrong in law since, if a principal party was found guilty of murder, it was
not open to the jury to acquit a secondary party of murder but convict him of manslaughter in
the alternative.

Held
A person who was a party to a joint enterprise which resulted in the causing of another's
death could be criminally liable for that death on the basis that he was guilty of either murder
or manslaughter. It was fundamental to a conviction for either offence that the defendant
must have been a party to the act which caused death. Accordingly, if the relevant act was not
committed in the course of carrying out the joint enterprise in which the defendant was a
participant or if the defendant, although a participant in a joint enterprise and responsible for
the unintended consequences of acts done in the course of the carrying out that joint
enterprise, lacked a specific intent possessed by another participant, the joint enterprise
ceased to provide a basis for a finding of guilt against that defendant. A defendant's mens rea
was often sufficiently proved by proof of his participation in a joint enterprise having the
requisite character but where that was not the case it could be proved by proof of a specific
intent. A variation in the intent of a participant at the time the relevant act was done did not
necessarily preclude the act from having been done in the course of carrying out the joint
enterprise. The test in any given case was (i) what was the scope of the joint enterprise, and
(ii) if a crime of specific intent was charged, what was the state of mind of the defendant.
Where proof of participation in the joint enterprise proved only the mens rea appropriate to a
lesser offence, only the lesser crime would be proved against the defendant, although the act
in question might have involved the commission of a more serious crime by another against
whom a specific intent could be proved. Accordingly, the directions given by the trial judge
disclosed no error of law and the verdicts of manslaughter were properly left open to the jury.
The appeals would accordingly be dismissed.

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R v Powell & Another, R v English [1997] 4 All ER 545

Facts

In the first case, the appellants Powell (P) and Daniels (D), and another person went to the
house of a drug dealer. As soon as he opened the door, he was shot dead by one of the three
people. At the trial P provided evidence that he only went to the dealer’s house to buy
cannabis. D did not give any evidence, but argued that P was responsible for the shooting and
that he was not aware of the presence of the gun until it was fired. P and D were convicted of
murder on the basis of joint enterprise. The Court of Appeal dismissed their appeal and they
appealed to the House of Lords.

In the second case, the appellant English (E) and another person (W) attacked a police officer
with wooden posts. During the attack, W stabbed the police officer with a knife, which
caused his death. Both E and W were convicted of murder on the basis of joint enterprise. E
appealed his conviction and the Court of Appeal dismissed it as a result of which he turned to
the House of Lords.

Issue

What level of mens rea is required in order to convict a secondary party to a joint enterprise
of murder?

Held

(1) Where there is joint enterprise to commit a crime, to found a conviction of murder for a
secondary party, it is enough to show that they contemplated that the primary party might kill
with intent to do so or cause serious injury. Thus, P and D’s appeal was dismissed.

(2) If a secondary party did not foresee that the principal might commit an act which was
fundamentally different from the one jointly contemplated, they could not be guilty of murder
unless the weapon that caused the death of the victim was just as dangerous as the one
contemplated. Hence, E’s appeal was allowed.

With this ruling, the House of Lords overruled R v Barr [1989] 88 Cr. App. R. 362.

DPP for Northern Ireland v Maxwell [1978] 3 All ER 1140

Facts

The defendant was a member of the UVF, an organisation carrying out attacks on Roman
Catholics by the use firearms and bombs. This case concerns an attack in an inn where the
defendant, a local, was asked to lead a group of men who placed a bomb in the inn. The bomb
was placed but the owner’s son found it in time, removed it and the bomb eventually
detonated outside the inn. The defendant was convicted of unlawfully and maliciously doing
an act with intent to cause an explosion likely to endanger life under s.3(a) of the Explosive
Substances Act 1883 and possession of a bomb under s.3(b). He appealed.

Issue

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The defendant argued that he was wrongly convicted as he had not known beforehand that
the inn would be bombed. The Court of Appeal for Northern Ireland, which originally also
rejected his appeal, accepted that there was a point of law of general importance involved.
The question was that if the crime committed by the principal and assisted by the defendant
was among the number of offences, one of which the defendant knew the principal would
likely commit, was the mens rea to be proved against an accomplice thereby proved again the
defendant here.

Held

The Court held that it was not necessary for the defendant to have knowledge of the actual
offence committed as he already aided and abetted the commission of the offence. Instead, it
was enough if the aider knew what the type of offence could be committed or the essential
matters constituting the offence. As a member of the UVF, the defendant knew that by
leading them, he helped the group of bomb-placers to carry out some kind of attack. He also
must have known that the weapon with which an attack was to be carried out was in the car
he led. He thus knew the essential matters constituting the offence and was thus rightly
convicted.

R v Jogee [2016] UKSC 8

Facts

This joint case involved two separate appellants who had been convicted for murder on the
basis of joint enterprise, after a co-defendant had actually killed the victim. In the case of
Jogee, he had been vocally encouraging the principal while he murdered a police officer. In
the case of Ruddock, liability was based on his participation in a botched robbery during
which the principal murdered the victim (an act which the principal admitted). In Jogee, the
judge made the direction that liability as an accessory would attach where the defendant
participated in the attack while realising that the principal might stab the victim while
intending to cause really serious harm. In the case of Ruddock, the judge made the direction
that it was necessary to establish a shared common intention between the principal and the
accessory and this could be proved where the defendant was shown to have known that there
was a real possibility that the principal might intend to commit a given crime (in that case
GBH or murder) and still continued with his participation in the joint enterprise.

Issue

The court had to determine whether the principle of Parasitic Accessory Liability, as
established in Chan Wing-Siu v The Queen [1985] 1 AC 168, is a correct exposition of the
law.

Held

The court held that in order to prove accessorial liability, it was not sufficient to only prove
the necessary mental element, but also the element of conduct. This could be discharged by
proving that the accessory either assisted or at least encouraged the principal in committing
the offence. The mental element is discharged by proving that the accessory intended to so
assist or encourage the principal. The mental element however is not discharged by mere
foresight that the principal might commit an offence. Chan Wing-Siu v The Queen [1985] 1
AC 168 was incorrectly decided in the part of equating foresight with intent. The convictions

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were therefore quashed and R v Collinson (1831) 4 Car & P 556, R v Smith (Wesley)
[1963] 1 WLR 1200, CCA and R v Reid (Barry) (1976) 62 Cr App R 109, CA were
approved.

Worksheet 8 Cases (Inchoate Offences)

R v Most [1881] 7 QBD 244

(Court of Crown Cases Reserved) A count on the indictment alleged that the defendant:
‘knowingly and wickedly did encourage certain persons, whose names to the jurors were
unknown, to murder certain other persons, to wit sovereigns and rulers of Europe.’ The jury
had been directed by Lord Coleridge CJ, that if they thought by the publication of the article
the defendant did intend to, and did, encourage or endeavour to persuade any person to
murder any other person, whether a subject of Her Majesty or not, or whether within the
Queen’s dominion or not, and that such encouragement and endeavouring to persuade was
the natural and reasonable effect of the article they should find him guilty.
Held
The direction was approved. Denman CJ said: ‘The statute was passed for the very purpose, I
think, of rendering it a more serious offence than the common law rendered it to do such an
act as this’ and ‘I think the circulation to the world, to multitudes of persons wholly
undefined, and to whom it would come, would be sufficient . . .’

Invicta Plastics v Clare Those advertising and selling devices which were designed to detect
the presence of police radar speed devices commit the offence of incitement under section
1(1) of the 1949 Act which required a licence for the use of such apparatus. The defendant
had advertised a device with a photograph showing a view of a speed restriction sign,
implying that it could be used to detect police radar traps. It was not an offence to own one of
these devices, but it was an offence to operate one without a licence. In confirming the
company's conviction for inciting readers of the adverts to commit breaches of the Wireless
Telegraphy Act 1949, the Divisional Court held that the mens rea involved not only an
intention to incite, but also an intention that the incitee should act upon the incitement.

R v Whitehouse [1977] QB 868 (CA)

The defendant had plea of guilty to two charges of inciting his daughter, aged 15, to commit
incest with him. He appealed saying that it was possible that the offences of which he had
been convicted were unknown to the law. The prosecution conceded that the common law

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offence of incitement consisted of inciting another to commit a crime and that a girl aged 15
was incapable of committing the crime of incest by statute. The prosecution argued that the
indictment could be read to charge the defendant with inciting his daughter to aid and abet
him to have unlawful sexual intercourse with her, contrary to another statutory provision.
Held: The appeal succeeded. As the daughter was incapable of committing the crime of
incest, the defendant could not be guilty of the common law offence of incitement. Further,
given the statutory context, the daughter could not in law have aided and abetted her father to
commit
incest with her. It followed that there was no offence known to the law of a man inciting a
girl under the age of 16 to aid and abet him to have unlawful sexual intercourse with her.

R v Curr [1968] 2 QB 944 (CA)

The defendant ran a loan business whereby he would lend money to women with children in
return for their handing over their signed family allowance books. He would then use other
women to cash the family allowance vouchers. He was convicted of inciting the commission
of offences under s9(b) of the Family Allowance Act 1945, which made it an offence for any
person to receive any sum by way of family allowance knowing it was not properly payable.
He appealed successfully to the Court of Appeal, where it was held that the trial judge had
erred in not directing the jury to consider whether these women, who were being incited to
use the signed allowance books to collect money on behalf of the defendant, had actually
known that what they were being asked to do was unlawful. It would have been more
appropriate to have charged the defendant as the principal offender relying on the doctrine of
innocent agency.

Haughton v Smith [1975] AC 476

A van containing stolen goods was stopped by the police. It transpired that the van was
proceeding to Hertfordshire where the defendant was to make arrangements for the disposal
of the goods in the London area. In order to trap the defendant the van was allowed to
proceed on its journey with policemen concealed inside. The van was met by the defendant
who began to play a prominent role in assisting in the disposal of the van and its load. Finally
the trap was sprung and the defendant was arrested. The prosecutor was of the opinion that,
once the police had taken charge of the van, the goods had been restored to lawful custody,
and were therefore, no longer stolen goods. Accordingly the defendant was not charged with
handling 'stolen goods', contrary to s22 Theft Act 1968, but with attempting to handle stolen
goods.
The House of Lords held that a person could only be convicted of an attempt to commit an
offence in circumstances where the steps taken by him in order to commit the offence, if
successfully accomplished, would have resulted in the commission of that offence. A person
who carried out certain acts in the erroneous belief that those acts constituted an offence
could not be convicted of an attempt to commit that offence because he had taken no steps

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towards the commission of an offence. In order to constitute an offence under s22 of the
Theft Act 1968 the goods had to be stolen goods at the time of the handling; it was irrelevant
that the accused believed them to be stolen goods. It followed that, since the goods which the
defendant had handled were not stolen goods, he could not be convicted of attempting to
commit the offence of handling stolen goods.

R v McDonnell [1966] 1 QB 233

the defendant was indicted, inter alia, with two counts of conspiracy of conspiring with a
company, each count concerning a separate company. The defendant was the ‘sole person in
either of the companies . . responsible for any of the acts of the company and no one else had
any authority to act for the company or any responsibility for the acts of the company.’ Held:
Nield J said that ‘a company and a director cannot be convicted of conspiracy when the only
human being who is said to have broken the law or intended to do so is the one director’

Dpp v Nock [1978] 2 All ER 654

The appellants and others were charged with conspiracy to contravene s 4 of the Misuse of
Drugs Act 1971. The particulars alleged that the appellants and their co-defendants had
'conspired together and with other persons unknown to produce a controlled drug of Class A,
namely cocaine'. At the trial it was established that the appellants had agreed together to
obtain cocaine from a quantity of powder which they had obtained from one of their co-
defendants. Contrary to the appellants' belief, however, the powder contained no cocaine and
so it proved impossible to obtain cocaine from it. The appellants were convicted and their
appeal was dismissed by the Court of Appeal which held that the offence of conspiracy was
committed when an agreement to commit, or to try to commit, a crime was reached, whether
or not anything was, or could be, done to perform it.

Held

Where the conspiracy alleged by an indictment was conspiracy to commit a crime it had to be
shown that the accused had agreed to carry out a course of conduct which, if carried out,
would have resulted in the commission of a crime. Since the only agreement proved against
the appellants was an agreement to pursue a course of conduct which could not in any
circumstances have resulted in the statutory offence alleged, ie producing cocaine, they were
not guilty of conspiracy and the appeal would therefore be allowed.

R v Sailsman (No 1) [1963] 5 WIR 514

The appellant was convicted on 30 October 1962, along with two other persons on an
indictment charging them with conspiracy to murder ES, the husband of the appellant. The
evidence adduced at the trial related to meetings between the three accused during the months

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of September to November 1961, the attempted purchase of cyanide of potassium; the

reported failure of a plan to poison ES; the consequent formation of an attempt to carry out a
plan to drown him; the failure of this plan and the consequent suggestion that he should be
killed by burning his house. It was alleged that the appellant was the principal conspirator,
the suggestion being her desire to get rid of ES because he stood in the way of her illicit
association with S, one of the accused, and, at the same time, to obtain the proceeds of an
insurance policy on the life of ES for £5,000. A letter was found in the room of ES after his
death on 30 December 1961, and proved to have been written by him. It was undated and
addressed to the appellant, but there was no evidence that it ever came into her possession. It
expressed the deep personal unhappiness of ES at the appellant's indifference to his love and
at the fact, as he believed, that someone had come between them, his feeling that he could
bear no more, and a pathetic appeal for her to change her attitude towards him. The trial
judge overruled an objection to the admission in evidence of this letter and admitted it, not, as
he stated, to establish the truth of its contents but merely to show the state of mind of ES and
supply motive, the relationship between ES and the appellant. It was contended on behalf of
the appellant that the indictment was bad in that (a) it was vague and uncertain as to the time
of the offence charged and allowed the prosecution to range over an unlimited period of time,
and (b) it embraced three distinct conspiracies rolled up in one count, and that the trial judge
erred in rejecting a submission to that effect at the close of the case for the prosecution. It was
also contended that the letter ought not to have been admitted in evidence.
Held

(i) there was nothing on the record to indicate that objection was taken at the trial to the
inadequacy of the particulars as to the time of the offence charged, and, as counsel for the
appellant had no clear recollection that such an objection was taken, it was now too late to
attack the indictment on that ground;

(ii) while the evidence disclosed changes in the method of effecting the objective, the nature
of the offence to be committed always remained the same, namely, the murder of ES. The
alleged conspiracy consisted in the agreement to do this unlawful act, and the Crown sought
to prove this agreement by evidence of meetings between the alleged conspirators, acts done
and things said by them allegedly in pursuance of their objective, and by evidence indicating
their determination to achieve their purpose by trying another method when one failed. When
the nature and purpose of the alleged conspiracy are thus appreciated the three episodes do
not show different conspiracies and consequently the indictment was valid and proper;

(iii) to be admissible in evidence, it would first have to be established that the letter was
written at or about the material period, and either that the state of the feeling of ES towards
his wife was being put in issue, or, that it had come to her knowledge and might supply a
motive for the conspiracy. None of the prerequisites for the admission of this hearsay
evidence was established and it was therefore inadmissible. The prejudicial effect of the
wrongful admission of the letter was so great as to taint the whole proceedings and prevent
the appellant from having a fair trial.

Decision: Appeal allowed; new trial ordered.

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R v Ingleton and Warren [1959] 1 WIR 129

Both appellants were convicted of conspiring to contravene the provisions of s 14 (1) of the
Road Traffic Law, Cap 346 [J], by procuring the grant of drivers' licences to certain
applicants by the production of certificates of competence purporting to be issued in
accordance with the provisions of Reg 43 of the Road Traffic Regulations [J]. The appellant
I. was also convicted on counts charging that with intent to defraud he procured a driver's
licence to be delivered to a person named in the count by falsely pretending that a certificate
of competence was issued in accordance with the Road Traffic law to the person named, that
he had personally examined the person named as to his competence, and that that person had
complied with all the requirements of s 14 (1) of the Road Traffic Law.
The appellant W taught persons to drive motor vehicles. He then gave each an application
form for a driver's licence. Each applicant filled up the form and handed it to W.
Subsequently the form was returned to the applicant with his address altered from one in the
Corporate Area to one in Trelawny. Attached to the form was a certificate of competence
signed by the appellant I. who was the certifying officer stationed in Trelawny. Upon tender
of the document and £1 to the Collector of Taxes, a driver's licence was issued by the
Collector of Taxes to the applicant. In no case did the applicant take any test to show his
competence to drive.

Held:
(i) the appellant I, knowing that a driver's licence is issued upon production of the certificate
of competence signed by him, committed an offence under s 14 (2) of the Road Traffic Law,
Cap 346 [J], when he made a false statement in the certificate of competence that a person
had complied with the requirements of s 14 (1) when in fact he had not;

(ii) the offence of conspiracy was sufficiently described in the indictment;

(iii) the facts disclosed that the appellants agreed to commit an unlawful act which was
fraudulent and therefore the offence of conspiracy was committed, R v Whitaker (R v
Whitaker [1914] 3 KB 1283, 84 LJKB 225, 112 LT 41, 79 JP 28, 30 TLR 627, 58 Sol Jo 707,
24 Cox, CC 472, 10 Cr App Rep 245, CCA, 14 Digest (Repl) 129, 913) followed;

(iv) the reference in the count for conspiracy to “certain applicants” did not refer to several
conspiracies but to one conspiracy, and the count was not bad for duplicity;

(v) the appellant I. was wrongly convicted on the other counts as no pretense was ever made
to the Licensing Authority by whom drivers' licences were issued;

(vi) although there was power to do so, the court would not substitute convictions for an
attempt as the facts did not disclose an offence under the Larceny Law in that there was no
intent to defraud, but only an offence under s 14 (2) of the Road Traffic Law, Cap 346 [J].

Decision: Appeal allowed in part and dismissed in part.

The State v Sharma and Williams [1977] 25 WIR 166

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The appellants S and W were jointly charged with two offences of conspiracy in the
following circumstances: S's motor car was stolen on 22, December 1974. He reported the
matter to the police and the car was recovered next day undamaged. Four days later S and
another man called W went to police HQ where S said he had brought W to make a statement
about the stolen car W then told the police he had seen one Sonny Persaud driving the stolen
car on the day it was missing.

Later, on 30 December 1974, S expressed the wish to a police officer that Sonny Persaud
should be charged and gave a written statement of the theft and the information he had
received from W However, on 8 January 1975, W confessed in writing that his report of 26
December 1974, was false, stating he had been asked to say what he did by S.
Both S and W were afterwards jointly charged indictably on two counts with conspiracy, to
wit; (i) knowingly to prosecute an innocent man for a crime contrary to s 328 (c) of the
Criminal Law (Offences) Act, Cap 8:01; and (ii) conspiring to pervert the course of justice,
contrary to s 329 of the same law. Both accused were convicted on both counts of the
indictment.

Section 328 (c) of Cap 8:01 makes it an indictable offence to conspire with anyone “to
prosecute any person for an alleged offence knowing that person to be innocent thereof”, and
at the trial the judge directed the jury that “to prosecute” means “to prosecute or to have
prosecuted'.

Held:
(i) that in law the evidence did not establish the offence charged;

(ii) that the trial judge erred in law when he considered the words “to prosecute” mean “to
have prosecuted” or “cause to be prosecuted”. The jury were told that the case for the
prosecution was that S and W acted conspiratorially against Sonny Persaud “to get him
involved in a matter in which he is innocent”, but that was not punishable. What was
punishable was that S and W should get together to do something so that Sonny Persaud
could have been charged by the police;

(iii) that the convictions of both S and W must accordingly be set aside on the first count;

(iv) that on the second count the prosecution had failed to establish a prima facie case against
S and his conviction and sentence must be set aside. His counsel's no-case submission should
have succeeded, because, although the jury must have been completely satisfied from W's
confession statement that his report was false to his knowledge, it had to be established, but
was not, that S knew that W's report was false before he, S, could be properly convicted;

(v) that W's admission of guilt on the second count was admissible only against himself
because what W stated he had done was not done in the furtherance of the alleged
conspiracy;

(vi) that the effect of S's acquittal on the conviction of W on his own admission must result in
the acquittal of W because of the common law rule that where two persons are charged with
conspiracy the only possible verdict is either that both are, or neither is guilty.

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Decision: Appeals allowed. Convictions and sentences set aside.

Dpp v Stonehouse [1977] 3 WLR 143

Facts
The defendant had been charged with attempting to obtain property by deception by
fabricating his death by drowning in the sea off Miami in Florida. The final act alleged to
constitute the offence occurred outside the jurisdiction of the English courts.
Held
The charge was justiciable in England. The defendant appealed conviction on counts of
attempted obtaining by deception on the ground, among others, of judicial misdirection in the
following words: ‘There is an attempt by the accused within the legal meaning of that word
‘attempt’ if you are satisfied that the matters I have stated to you are proved.’
Reasoning
Lord Diplock (minority) equated the judge’s power to direct a conviction with his power to
direct an acquittal, regarding the contrary view as cynical and inconsistent with the proviso in
section 2(1). Whether an activity forms part of an employer’s undertaking to make him liable
under the Act is a question of fact to be left to the jury. As to jurisdiction where elements of
the offence were committed abroad: ‘I see no reason for doubting the correctness of the
decision in Reg v. Harden [1963] 1 Q.B. 8 if it was in that case right to conclude that the
cheques were obtained in Jersey. The court in that case held, in my view correctly, following
Reg. v. Ellis [1989] 1 Q.B. 230, that the gist of the offence lay in the obtaining, and as that in
their view had occurred outside the jurisdiction, the convictions were quashed. It was not
suggested in that case that the making of the false pretences in England gave the English
courts jurisdiction. I doubt, however, whether it was right to hold that the jurisdiction of the
English courts in respect of criminal offences depended on the narrow ground that the Post
Office was the agent of the maker of the false pretences to obtain on his behalf the fruits of
his fraud. Neither he nor the company in Jersey are likely to have considered or contemplated
that the Post Office was acting as agent for one or other of them. The Post Office was just the
vehicle for the transmission of the false pretences and the fruits of the fraud.
I can find no authority for the proposition that the English courts have jurisdiction in a case
where the false pretences were made in this country and the obtaining of goods or money in
consequence thereof occurred outside the jurisdiction. That the law might have so provided
and that Parliament might make that the law, I acknowledge but I do not think that it is the
law now. ‘
Lord Salmon said: ‘The criticism of that passage was that the judge should have explained to
the jury the legal meaning of an attempt and directed them that if they were satisfied beyond
a reasonable doubt that the facts proved established the attempt charged, then they should
find the accused guilty, otherwise they should acquit him. I agree with that criticism. So did
counsel for the Crown who conceded that there had been the technical misdirection of which
counsel for the appellant had complained. The learned judge conducted this trial lasting 70
days with outstanding ability and patience. The direction complained of came towards the
end of a most fair, accurate and lucid summing up. It concerned a matter which was as plain
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as a pikestaff. No reasonable jury could have failed to find that the facts proved clearly
established the attempt charged and convicted the appellant accordingly. It has never been
suggested that when the appellant faked his death, he may not even have been giving his wife
a thought and did what he did do solely to escape from being arrested and charged with the
13 other counts to which he had no defence and of which he was convicted . . Anyone in the
judge’s position might easily have made the slip which he did of not leaving the jury to
decide whether the facts proved amounted to the attempt charged. However obvious it may
be that they did and that the accused was guilty, technically, the judge should still have left it
to the jury to decide whether or not the evidence established the attempt charged and to have
found him guilty or not guilty accordingly. The technical slip on the part of the judge
certainly made no difference to the result of the trial. There is no possibility that any
reasonable jury could have had the slightest doubt that the facts proved did establish the
attempt charged and accordingly would certainly have brought in a verdict of guilty. I am
completely satisfied that no miscarriage of justice could have resulted from what technically
was a misdirection and that therefore the proviso to section 2(1) of the Criminal Appeal Act
1968 should be applied.
With the greatest respect to my noble and learned friends, Lord Diplock and Viscount
Dilhorne and the Court of Appeal, I am afraid that I cannot agree with their views on this
aspect of the case. Whilst there is no doubt that if a judge is satisfied that there is no evidence
before the jury which could justify them in convicting the accused and that it would be
perverse for them to do so, it is the judge’s duty to direct them to acquit. This rule, which has
long been established, is to protect the accused against being wrongly convicted. But there is
no converse rule – although there may be some who think that there should be. If the judge is
satisfied that, on the evidence, the jury would not be justified in acquitting the accused and
indeed that it would be perverse of them to do so, he has no power to pre-empt the jury’s
verdict by directing them to convict. The jury alone have the right to decide that the accused
is guilty. In any appropriate case (and this was certainly such a case) the judge may sum up in
such a way as to make it plain that he considers that the accused is guilty and should be
convicted. I doubt however whether the most effective way of doing so would be for the
judge to tell the jury that it would be perverse for them to acquit. Such a course might well be
counter-productive.’

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R v Whybrow [1951] Cr App R 141

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Erskine v Goel [1977] 25 WIR 78

Facts
The appellant was charged in the magistrate's court with attempting to buy foreign currency,
to wit, an American bank-draft for $4,900 (US) from a person other than an authorised dealer,
contrary to law. Foreign currency is defined by the Exchange Control Act.

It was alleged that he gave the sum of $10,780 (G) to a confidence-trickster, called Rickford
Lowe, with which to purchase the draft; but Lowe absconded with the money. The appellant
later reported the matter to the police and in the first of two uncautioned statements in
writing, he admitted it was his intention to purchase the draft from Lowe himself. However,
in the second statement, he said Lowe had undertaken to purchase the draft for him from a
“friend”. The money was afterwards recovered intact from the house of one Bheer, a
goldsmith.

The magistrate convicted the appellant and made an order of forfeiture of the $10,780 (G).
He held the offence as charged was proved because when the appellant handed over the
$10,780 (G) to Lowe in purchase of the draft, that was the “penultimate act”, ie, the
proximate actus reus in the attempt to purchase foreign currency.

The conviction was affirmed on appeal to the Full Court for substantially the same reasons
given by the magistrate, but the order for forfeiture was revoked. Neither Lowe nor Bheer
gave evidence and the draft was not produced. In the view of that court, it was immaterial
whether the American draft was produced in evidence or ever existed as a fact. The
complainant cross-appealed from the order of revocation.

On appeal to the Guyana Court of Appeal, it was Held:

1. that neither the mere intention of the appellant to buy foreign currency nor acts of
preparation on his part were enough to constitute the offence charged. His handing of
the $10,780 to Lowe was only a step towards the commission of the offence;

2. that the Full Court erred in concluding there was a sufficient actus reus constituted by
the appellant's handing over the $10,780 to Lowe;

3. that it was impossible to determine whether or not the overt acts proved would (or
even could) have resulted in the commission of the completed offence in the absence
of admissible proof that what Lowe agreed to sell and deliver in law fell within the
statutory descriptions of foreign currency;

4. that the complainant's cross-appeal from the order of forfeiture of the $10,780 (G)
must be dismissed.

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R v Shivpuri [1987] AC1 (HL)

Pyare Shivpuri (S) was persuaded to act as a drugs courier. S collected a suitcase which
contained several packages of white powder which he admitted in police interview that he
believed to be either heroin or cannabis but was in fact legal snuff. S was charged with
attempting to be knowingly concerned in dealing with and harbouring the controlled drug of
heroin, under the Criminal Attempts Act 1981 section 1(1) (1981 Act) and the Customs and
Excise Management Act 1979 section 170(1)(b) (1979 Act), despite the fact that the white
powder was not in fact drugs. S was convicted and appealed.
Issue
Shivpuri claimed that he could not be found guilty in law of an impossible offence, because
the substance was not a drug.
Held
For section 170(1) of the 1979 Act to apply, it is immaterial that S did not know the exact
nature of the substance in his possession, but nevertheless believed he was dealing with
controlled drugs the importation of which was prohibited. The statutory offence of attempt
under Section 1 of the 1981 Act requires (1) an act which was more than merely preparatory
to the commission of an offence and (2) the accused intended to commit an offence. It is no
defence that on the true facts it would have been impossible to commit the actual offence,
which overruled the notion of ‘objective innocence’ in Anderton v Ryan [1985] A.C. 560.
The Court of Appeal and House of Lords dismissed the appeal and upheld the conviction.

Anderton v Ryan [1985] AC 560

Facts
The defendant had bought a video recorder, but later confessed to the police that she believed
it to have been stolen property when she bought it. The defendant was charged with
attempting to handle stolen goods, although the prosecution was unable to prove that the
video recorder had in fact been stolen property.
Held
The House of Lords (by a majority of 4-1) quashed the defendant's conviction on the ground
that she could not be guilty of attempting to handle stolen goods unless such property was
shown to have existed. A majority of their Lordships refused to accept that the defendant's
belief that goods were stolen was sufficient of itself to result in liability. Such a result may
have been the aim of the 1981 Act but their Lordships felt that Parliament would have to
express its intentions more clearly before the courts would be willing to impose liability
solely on the basis of what the defendant had thought she was doing, as opposed to what she
was actually doing.

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