1.Voluntary act: Status offences – no conduct is required but the crime is committed when a certain state of affair exists or the defendant is in a certain condition or is of a particular status. R v Larsonneur (1933) – Appellant was brought involuntarily back to the UK where she was charged on being an ‘alien’. LCJ Hewart claimed the ‘circumstances are perfectly immaterial’ Winzar v Chief constable of Kent (1983) – drunk on a public highway. LJ Robert Goff claimed ‘it is enough for the commission of the offence if a person is in a public place or a highway, he is drunk and in those circumstances he is perceived to be there and to be drunk, It does not matter if the appellant is only momentarily in the highway’. Martin v State (1944)- Appellant was brought from his home to a public highway and arrested for using loud and profane language in a drunken condition.
The trial judgment was reversed and the appellant was discharged. (Supreme Court of Alabama) 2.Ommissions- failure to act may result in the imposition of criminal liability in two situations: in conduct crimes the failure to act may itself, without more, constitute the crime. In result crimes the failure to act may contribute towards the harm specified in the offence and may thus, be deemed the requisite ‘act’ for the purposes of the offence. This will be so if the actor is under a duty to act. a)Duty to act.
Special relationship – may be professional or familial R v Downes (1875) – A father failed to call a doctor for his sick child and instead relied on the power of prayer. It was held that there was a duty to act where there is a close family relationship. He was convicted of manslaughter. R v Evans (2009) – D failed to summon help for the victim who was suffering an overdose.
It was held that there was no duty of care between the relationship of the defendant and the victim (half-sister) but there was a duty to act when he created or contributed to the creation of state of affair in which he knew, or ought to reasonably have known to become life-threatening. R v Shepherd (1862) – No duty to act is owed by a parent to her 18-year old “entirely emancipated” daughter.
There would not be the same expectation of assistance as with a dependant child. However, nowadays, it is not a question of blood or marriage relationships but the assumption of responsibility that generates the reliance and expectation of assistance and hence the legal duty to act. Assumption of responsibility
R V Instan (1893) – The defendant lived with her 73-year old aunt who developed gangrene in her leg & could not fend for herself, move about or summon help. She knew about her aunt’s condition but did not seek medical assistance. Lord Colebridge claimed that ‘every legal duty is founded on a moral obligation’. R v Sinclair (1998) – The defendant and victim self-injected themselves with methadone. The victim became unconscious and the defendant took ineffectual remedial action before calling an ambulance the following morning.
The defendant appealed and the appeal was allowed on the ground that a fuller direction of causation should have been given. L.J. Rose claimed that Sinclair owned a duty of care as he had been a close friend for many years and the two lived together as brothers, It was Sinclair who paid for and supplied the drugs and remained with the deceased throughout his period of unconsciousness.
Contractual duty – the contract is evidence of an assumption of responsibility creating an expectation in the mind of others that the defendant will act. R v Pittwood (1902) – A railway gate-keeper, who was employed to keep a gate shut whenever a train was passing, was held liable for manslaughter when he forgot to shut the gate with the result that a train hit a hay-cart crossing and killed a man.
Statutory duty - A breach of statutory duty will not always constitute the necessary ‘act’ for the purpose of an ulterior offence if further harm results from the breach of duty. R v Lowe (1973) – A man neglected his nine-week old daughter by failing to call for a doctor when she became ill. He was charged with neglecting a child contrary to s.1(1) of the Children and Young Persons Act 1933 and with manslaughter. It was held that the requirement for the unlawful act was not satisfied by an omission. Creation of a dangerous situation
R v Miller (1983) – The defendant, a squatter fell asleep smoking and his cigarette fell onto the mattress. Later he woke up, saw that the mattress was smouldering , did nothing about it and moved to another room to sleep. The house caught on fire. The judge ruled that once he had discovered the mattress was smouldering the appellant had been under a general duty to act.
The Court of Appeal upheld his conviction on the ground that his whole course of conduct constituted a continuous actus reus. Lord Diplock in the House of Lords said ‘I see no rational for excluding from conduct capable of giving rise to criminal liability, conduct which consists of failing to take measures that lie within one’s power to counteract a danger that one has oneself created’.
D.P.P v Santana-Bermudez (2004) – The defendants claimed that they were no needles on him and was then searched by a police officer who was then pierced with a hypodermic needle. The Court of Appeal held that the defendant had created a dangerous situation by having needles in his pocket and not telling the police officer. This provided an evidential basis that he was under a duty and breached that duty. R v Evans
CAUSATION Law Commission Draft Report (2002) states that a defendant causes a result which is an element of an offence when A) He does an act which makes a substantial and operative contribution to its occurrence or b) he omits to do an act, which is under a duty to do so according to the law relating to the offence, and the failure to do the act makes a substantial and operative contribution to its occurrence.
1. The defendant’s actions need not be the scientific or medical cause of the result. 2. One can cause death or other injury by fright or shock without touching one’s victim. 3. The defendant must take his victim as he finds him.
4. The defendant’s action need not be the sole cause of the consequence. 5. A novus actus interveniens will break the chain of causation. Novus actus interveniens The act by the third party must be voluntary (free, deliberate and informed). With regards to the victim’s acts or natural events, only those acts or events that are ‘daft or unexpected’ will break the chain of causation. Natural events
R v Hart (1986) – The defendant attacked a victim and left her unconscious on a beach below the high-water mark where she was drowned by the incoming tide. Such an event was reasonably foreseeable and the defendant was held to have caused the death of the victim. Acts of a third party
R v Latif (1996) – The defendant was charged with importing controlled drugs into the country. In fact, the drugs were knowingly brought in by a customs officer acting with a paid informant, Homi. Lord Steyn held that the general principle is that the free, deliberate and informed intervention of a second person, who intends to exploit the situation created by the first, but is not acting in concert with him, is held to relieve the first actor of criminal responsibility.
R v Pagett (1983) – The appellant shot at police officers who were attempting to arrest him for various serious offences. He had a girl with him and against her will used her body to shield himself from any retaliation by the officers. The officers returned the appellant’s fire, the bullets hit the girl and she died from her wounds. Lord Goff said that the officers had a general duty to act and therefore, their conduct was held to be involuntary. There was no novus actus interveniens and the appeal was dismissed.
R v Smith (1959) – During a fight in a barracks, the appellant twice stabbed the victim with a bayonet. A series of unfortunate events occurred and the victim died. The court held that the appellant was still liable for the victim’s death. R v Cheshire (1991) – The appellant shot the deceased in the leg and stomach. As part of his treatment in his hospital, a tracheotomy tube was placed in his windpipe. Some two months later, at a time when his wounds were no longer threatening his life, his windpipe became obstructed and he died. This was due to a complication in the tracheotomy. The trial judge directed the jury that only recklessness, not negligence, could break the chain of causation. He was convicted of murder and appealed.
Lord Beldam claimed that the accused acts need not be the sole cause or even main cause of the death it being sufficient that his acts contributed significantly to that result. R v Mellor (1996) – The appellant was charged with the murder of an elderly man who, after being attacked, died in hospital two days later. It was alleged that negligence by the hospital staff broke the chain of causation.
The appeal was dismissed. R v Jordan (1956) – The appellant stabbed the deceased who died some days later in the hospital. Jordan, who had been convicted of murder, sought to adduce further medical evidence on appeal to the effect that the wound was not the cause of death. Lord Hallet conceded that the death of the victim was not "consequent upon the wound inflicted." The Court took the view that based on these facts – and that the original stab wound had healed – a reasonable jury would not be satisfied that the defendant's acts had been the material cause of the victim's death. As such, the conviction was quashed. Acts of the victim
R v Roberts (1972) – A girl who was a passenger in the appellant’s car injured herself by jumping out of a car while it was in motion. Her explanation was that the appellant made sexual advances to her and was trying to pull her coat off. Lord Stephenson claimed that ‘the test is: What is the natural result of what the alleged assailant said and did, in the sense that it was something that could reasonably have been foreseen as the consequence of what he was saying or doing. R v Mackie (1973) – A three-year boy whom the appellant was looking after fell downstairs while running away in fear of being ill-treated by the appellant. R v Williams and Davis (1992)
R v Kennedy (No.2)(2008) – The appellant prepared a ‘hit’ of heroin for the deceased and gave him a syringe ready for injection. The deceased injected himself and returned to the appellant who left the room. R v Blaue (1975) – Lord Lawton claimed ‘The question for the decision is what caused her death. The answer is the stab wound. The fact that the victim refused to stop this end coming about did not break the chain of causation did not break the causal chain connection between the act and her death. R v Dear (1996) – Lord Rose claimed ‘The correct approach for criminal law is were the injuries inflicted by the defendant an operating and substantial cause of death?
The question, in our judgment, is necessarily answered, not by philosophical analysis, but by common sense according to all the circumstances of the particular case. In the present case the cause of the deceased’s death was bleeding from the artery which the defendant had severed. Whether or not the resumption or continuation of that bleeding was deliberately caused by the deceased, the jury were entitled to find that the defendant’s conduct made an operative and significant contribution to the death. The appeal was dismissed. MENS REA
Duff ‘Responsibility is a necessary but not a sufficient condition of liability’. There are two species of mens rea. First, there is cognitive mens rea which involves intention or foresight on the part of the defendant, Secondly there is normative mens rea under which an assessment of culpability involves an evaluation of the defendant’s actions, taking into account all the circumstances including the defendant’s state of mind. Cognitive mens rea – subjective test which assumes that a person’s state of mind is ascertainable. D.p.p v Smith (1961) – The respondent was driving a car in which there was stolen property. He was stopped by a police officer who told him to draw into the near side.
The respondent began to do so and the constable walked beside the car. Then the respondent suddenly accelerated down an adjoining road. The constable succeeded in hanging on to the car which pursued an erratic course until he was thrown off in the path of a vehicle which ran over him, killing him. Viscount Kilmuir claimed in the House of Lords that ‘on the assumption that he is so accountable for actions, the sole question is whether the unlawful and voluntary act was of such a kind that GBH was the natural and probable result’. Passing of the Criminal Justice Act 1967
A court or jury, in determining whether a person has committed an offence – a) shall not be bound in law to infer that he intended or foresaw a result of his actions by reason only of its being a natural and probable consequences of these actions and b) shall decide whether he did intend or foresee that result by reference to all evidence, drawing such inferences from the evidence as appear proper in the circumstances. Direct intention – A consequence is intended when it is the aim or objective of the actor.
Oblique intention – A consequence is intended when it is the aim or objective of the actor, or is foreseen as a virtual, practical or moral certainty. R v Hyam (1975) – Mrs Hyam poured petrol through the letterbox of the house of her lover’s new mistress and then ignited knowing people were asleep in the house. She claimed that she had not meant to kill but had foreseen death or GBH as a highly probably result of her actions. Her conviction for murder was upheld with the House of Lords arguably ruling that her state of mind amounted to an intention to kill or cause GBH. R v Moloney (1985) – Lord Bridge of Harwich claims that ‘It is necessary for the judge to do more than invite the jury to consider two questions.
First, was death or really serious injury in a murder case a natural consequence of the defendant’s voluntary act? Secondly, did the defendant foresee that consequence as being a natural consequence of his act? The jury should then be told that if the answer to both questions it is a proper inference for them to draw that he intended that consequence. R v Hancock and Shankland (1986) – The defendants pushed a lump of concrete from a bridge on to a convoy of cars below carrying a miner to work. The concrete struck a taxi’s windscreen and killed the driver.
The defendants claimed they had not meant to kill or cause serious injury. Lord Scarman claims the Moloney guidelines are defective and dismissed the crown’s appeal on the basis that it did not refer to probability. R v Nedrick (1986) - Lord Lane stated the two questions were 1.
How probable was the consequence which resulted from the defendant’s voluntary act? 2. Did he foresee that consequence? R v Woolin (1999) - This case saw the refinement of the language used in directing juries to make a decision on the intention of the defendant. The judges felt the need to direct the jury, and there was a clear conflict between the moral and potential strict legal outcome of the trial. However, in Woollin, the model guidance which was previously laid down in Nedrick was modified to state that the jury might “find” rather than “infer” the necessary intention, thereby refining the model guidance and placing it into simple language to assist a jury in reaching an appropriate decision unclouded by concepts of motive or confusion over usage. R v Matthews and Alleyne (2003)
RECKLESSNESS R v Stephenson (1979)- The appellant, who had crept into a hollow in the side of a large straw stack to sleep, felt cold and lit a fire of twigs and straw inside the hollow. The stack caught fire and was damaged. Evidence provided that he suffered from schizophrenia that could have the effect of depriving him the ability of a normal person to foresee or appreciate the risk of damage from the act of lighting the fire. Lord Geoffrey stated ‘the appellant, through no fault of his own, was in a mental condition which might have prevented him from appreciating the risk which would have been obvious to a normal person. The appellant was entitled to be acquitted and that was something which was never left clearly to the jury to decide’.
The subjective approach to recklessness imposes a double test a) whether the defendant foresaw the possibility of the consequence occurring and b) whether it was unjustifiable or unreasonable to take that risk. The Law Commission in the Draft Criminal Law Bill 1993 has endorsed this subjective approach, as well as has the Draft Offences Against the Person Bill 1998 c.14(2) which provides ‘a person acts recklessly with respect to a result if he is aware of a risk that it will occur and it is unreasonable to take that risk having regard to the circumstances as he knows or believes them to be’. 1981 – change to the first limb of the test.
R v Caldwell (1982) – The respondent had done some work for the owner of a hotel as the result of which he has a quarrel with the owner, got drunk and set fire to the hotel in revenge. The fire was discovered and put out before any serious damage was caused and none of the 10 guests in the hotel at the time was injured. The respondent was indicted on two counts on arson under the Criminal Damage Act 1971. GROSS NEGLIGENCE
In R v Adomako, the House of Lords held that a defendant could be convicted of involuntary manslaughter by breach of duty if: The defendant was in breach of a duty of care towards the victim; The breach of duty caused the death of the victim; and
The breach of duty was such as to be characterised as gross negligence and therefore a crime. 1. Breach of Duty Lord Mackay, in Adomako, stated that “the ordinary principles of the law of negligence apply to ascertain whether or not the defendant has been in breach of a duty of care towards the victim who has died.” The principles to establish a duty of care, from Caparo v Dickman, are: foreseeability of damage; a relationship of proximity or neighbourhood; and that the court considers it fair, just and reasonable that the law should impose a duty on one party for the benefit of another. Established case examples of a duty of care include: Doctor and patient (Bateman and Adomako);
Driver and pedestrian (Andrews); Master of a sailing ship and crew (Litchfield); and Driver and passengers (Wacker). A duty to act can also be established by: A contract, as in Pittwood; A person assuming responsibility for another, as in Stone & Dobinson; Statute, eg, the Children & Young Persons Act 1933 which applied to Lowe; and The creation of a dangerous situation, based upon Miller.
A defendant will be in breach of the duty of care by falling below the standard of the ordinary reasonable person. For example: In Adomako, an anaesthetist failed to notice that a tube leading to a patient’s ventilator had become disconnected. When an alarm sounded, he wrongly assumed that the machine was faulty and took no action for several minutes, then panicked.
The patient died; In Andrews, a driver was speeding and, while on the wrong side of the road, hit a pedestrian who was carried along on the bonnet of the car for some time; In Litchfield, the master of a sailing ship sailed too close to rocks despite being aware that the ship’s engines might fail because of fuel contamination. The ship struck the rocks and broke up, killing three crew members; and In Wacker, the defendant agreed to bring illegal immigrants into England in a container on his lorry. An air vent was closed during the ferry crossing in order to reduce the risk of the immigrants being discovered but the journey took an hour longer, killing fifty-eight people. 2. Causing Death
The “But For” Test from White can be used to establish factual causation. Should there be the possibility of a novus actus interveniens then causation in law will need to be established. 3. Gross Negligence
The jury must consider whether the breach of duty should be characterised as gross negligence and therefore a crime, rather than a civil matter. The circumstances must be such that a reasonably prudent person would have foreseen a serious and obvious risk of death. Having regarding to the risk of death involved, the conduct of the defendant must be so bad in all the circumstances as to amount to, in the opinion of the jury, a criminal act or omission.
This was considered, for example, in: Bateman – the defendant doctor removed part of a woman’s uterus during childbirth but did not send her to hospital until five days later. She later died. Although he had been negligent, his actions were not seriously out of line with normal medical procedures at the time (1920s). The Court of Appeal quashed his conviction for manslaughter. NON-FATAL OFFENCES
COMMON ASSAULT Section 39 of the Criminal Justice Act 1988 makes this a summary offence. Actus Reus The actus reus of assault was traditionally regarded as any act which caused the victim to apprehend the immediate infliction of violence. For example, in Logdon – The defendant, as a joke, pointed a gun at the victim who was terrified until she was told that it was in fact a replica.
The court held that the victim had apprehended immediate physical violence, and the defendant had been at least reckless as to whether this would occur. However, there was no assault in Lamb (and therefore no liability for unlawful act manslaughter). The act must cause a belief that there will be immediate harm but this has been interpreted liberally. See: Smith v Superintendent of Woking Police Station (where the defendant was outside); Constanza (a case of stalking); and
Ireland (where the defendant made silent phone calls to three women). An assault can now be committed by words. This was made clear in Ireland. However, actions can be cancelled by words: Tuberville v Savage. Mens Rea
The mens rea is fulfilled if the defendant intentionally or recklessly caused the victim to apprehend the immediate infliction of harm. This was stated in Venna. COMMON LAW BATTERY Section 39 of the Criminal Justice Act 1988 makes this a summary offence. Actus Reus The actus reus of battery is unlawfully applying physical force to another person. For example: Collins v Wilcock, where a policewoman grabbed a prostitute’s arm in order to stop her walking away, but without having arrested her. Battery can be committed directly or indirectly as in: Haystead, where the defendant punched a woman who dropped her child. Some forms of physical contact are not actionable, for example, touching someone to get their attention, jostling in a busy shop and back-slapping provided it is reasonable. There are also the defences of making a lawful arrest and acting in self-defence. Mens Rea
The mens rea is fulfilled if the defendant intentionally or recklessly applied force to the victim. This was stated in Venna. ASSAULT OCCASIONING ACTUAL BODILY HARM The offence of assault occasioning actual bodily harm is contained in s47 of the Offences Against the Person Act 1861, under which a defendant can be imprisoned for up to five years. Actus Reus Assault means a common law assault or a common law battery. Occasioning means causing. Harm can be caused directly or indirectly. For example: Roberts – The escape case where the defendant caused the victim to jump out of the car. Constanza – Where the defendant stalked the victim.
Ireland – By silent phone calls. DPP v K – Placing sulphuric acid in a hot air drier in school toilets. Harm can also be caused by omission, as in DPP v Santa-Bermudez, where a policewoman searched the defendant after having told him to empty his pockets and having asked if he had any needles or sharps. The defendant said no but the policewoman pricked her finger on a hypodermic needle. Actual bodily harm means not only physical harm to the skin, flesh and bones but also psychiatric injury supported by expert evidence. This was stated in Chan-Fook. The meaning of ABH was further extended in:
T v DPP – where the defendant kicked the victim and caused a momentary loss of consciousness; and DPP v Smith – The defendant assaulted his former partner and cut off her pony-tail with a pair of scissors. It was also stated, obiter, that if paint or some other unpleasant substance were put on the hair, that would also be capable of amounting to ABH. Mens Rea
The mens rea of the s47 offence is the mens rea of common assault only (ie, intention or recklessness). No mens rea is required for actual bodily harm, simply a causal link between the assault and the harm suffered. This was decided by the House of Lords in R v Savage; Parmenter (see below, under the s20 offence).
MALICIOUSLY WOUNDING OR INFLICTING GBH These two offences are contained in s20 of the Offences Against the Person Act 1861, which states: “Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any person, either with or without any weapon or instrument, shall be guilty of an offence, and being convicted thereof shall be liable to imprisonment for five years.” Actus Reus
Wounding means breaking the top two layers of the skin: Eisenhower, where the defendant shot the victim in the eye with an air rifle. The court held that the internal rupture of blood vessels in the victim’s eyes did not amount to wounding within s20. Inflicting means causing, either directly or indirectly. For example:
Martin – The defendant blocked the exit doors of a theatre, put out the lights in a passageway, and shouted ‘Fire!’ as the theatre-goers were leaving the performance. In the ensuing panic, many were severely injured by being crushed against the locked doors. The defendant was convicted under s20 and appealed. His conviction was confirmed and it is implicit in the decision that the indirect nature of the way in which the defendant’s acts had caused the harm presented no bar to liability. Burstow – The defendant stalked the victim.
Grievous bodily harm means really serious bodily harm according to the House of Lords in Smith (a murder case). It can also be: Psychiatric injury of a serious nature supported by expert evidence, as stated in Burstow; and Biological injury as stated in Dica, where the defendant had become infected with AIDS but continued sexual relationships with women. Mens Rea
“Maliciously” means the defendant intended to cause some harm, even if minor, or was reckless as to causing some harm. This was stated in Mowatt. Lord Diplock stated: “It is quite unnecessary that the accused should have foreseen that his unlawful act might cause physical harm of the gravity described in the section, ie a wound or serious physical injury. It is enough that he should have foreseen that some physical harm to some person, albeit of a minor character, might result.”
The defendant must foresee the possibility of some physical harm or will not be liable as in R v Savage; Parmenter: R v Savage – The defendant was charged with unlawful wounding under s20, the prosecution having alleged that she had approached the victim and thrown the contents of a glass of beer at her, and that she had let go of the glass which broke, with the result that the victim suffered cuts.
She admitted that it had been her intention to throw the beer over the victim but denied any intention to cut her with the glass. The defendant appealed successfully against her conviction under s20 because of the trial judge’s misdirection as to the mental element for that offence, but the court substituted a conviction for s47, on the basis that the offence did not require proof of recklessness or ‘maliciousness’ in relation to the ‘occasioning’ of the actual bodily harm.
The defendant had deliberately thrown beer over the victim, an act which was obviously an assault, and that ‘assault’ had undoubtedly occasioned the actual bodily harm which occurred. DPP v Parmenter – The defendant had caused injury to his young baby by tossing him about in a way which would have been acceptable with an older child, but not with one so young. He did not realise that he might cause harm by this action. The House of Lords held that he could not be liable under s20 as he had not foreseen the risk of any harm. It was not necessary under s20 that he foresee the grievous bodily harm which must be caused, but the defendant must foresee that he might cause some harm. An alternative verdict under s47 was substituted.
MALICIOUSLY WOUNDING OR CAUSING GBH WITH INTENT These offences are contained in s18 of the Offences Against the Person Act 1861: “Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause any grievous bodily harm to any person, with intent to do some grievous bodily harm to any person, or with intent to resist or prevent the lawful apprehension or detainer of any person, shall be guilty of an offence, and being convicted thereof shall be liable to imprisonment for life.” Actus Reus
The actus reus of these offences is the same as for s20 (above). Mens Rea There are two elements to the mens rea. First, the defendant must ‘maliciously’ wound or cause grievous bodily harm. Secondly, the defendant must have a specific intent to either do some grievous bodily harm to the victim or to resist or prevent the lawful apprehension or detainer of any person. This was made clear by the Court of Appeal in cases such as: Belfon – The defendant had slashed the victim with a razor causing severe wounds to his face and chest.
The Court of Appeal held that in order to establish the offence under s18 it was essential to prove the specific intent. References to the defendant foreseeing that such harm was likely to result or that he had been reckless as to whether such harm would result, would be insufficient. Morrison – The defendant was seized by a police officer who stated that she was arresting him. He jumped through a window which resulted in the police officer’s face being wounded. The trial judge directed the jury that if he intended to resist arrest and was objectively reckless (in the now over-ruled Caldwell sense) as to causing the officer harm, he was guilty of the s18 offence.
The Court of Appeal quashed the conviction and held that recklessness in the Cunningham (subjective) sense was required. Note that this means that the prosecution must prove the defendant intended to cause a wound or grievous bodily, or realised that it could be caused. According to the CPS Charging Standards (see below), factors which may indicate a specific intent to do GBH for s18 include: A repeated or planned attack;
Deliberate selection of a weapon or adaptation of an article to cause injury, such as breaking a glass before an attack; Making prior threats; and Using an offensive weapon against, or kicking, the victim’s head. The charge of causing GBH with intent to resist or prevent the lawful apprehension or detainer of any person is of assistance in more serious assaults upon police officers, where the evidence of an intention to prevent arrest is clear, but the evidence of an intent to cause grievous bodily harm is in doubt.
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