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This defence is termed " non - insane " automatism to distinguish it from the defence of insanity . The essential distinction between the two defences is that with non - insane automa tism the cause of the automotive state must be external ( e.g. medication or a blow to the head ) , while with insanity the cause must be internal ( e.g. illness or disease ) . For example , in R. v . Quick [ 1973 ] a diabetic suffered a hypoglycaemic blackout through not taking his medication properly . As this was an external factor ( the medication ) , conduct during the blackout was regarded as automatism . By contrast , in R. v . Hennessy ( 1989 ) , the blackout occurred when the diabetic had not taken his medication at all . Here , the blackout was attributed to an internal factor ( the diabetes ) and , hence , the appropriate defence was insanity . We should also note that , despite earlier dicta to the contrary , in R. v . Burgess ( 1991 ) it was held that acts done while sleepwalking were to be regarded as acts done while insane rather than under a state of automatism . Finally , this defence is not available where the automotive state is self - induced through the voluntary consumption of dangerous drugs ( R v . Lipman ( 1969 ) ) .
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Insanity Insanity , in this context , is a legal , not medical concept . It is designed to cover those situations where , because of some mental infirmity , the defendant should not be held responsible for their actions . Where raised successfully , it results not in an acquittal , but in a special verdict of " not guilty by reason of insanity " . This allows the court considerable discretion in dealing with the defendant , ranging from an absolute discharge to detention in hospital ( Criminal Procedure ( Insanity and Unfitness to Plead ) Act 1991 ) . This defence is governed by the M'Naghten Rules ( established in M'Naghten's Case ( 1843 ] ) . The defendant must show that , at the time of committing the offence , he was : • suffering from a defect of reason , • caused by a disease of the mind , . with the result that either : • he did not know the nature and quality of his act ; or • if he did know this , he did not know that it was wrong .
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The Relationship between Automatism and Insanity The distinction between automatism and insanity is important because while results in an acquittal , the latter results in the special verdict . The purpose ( or policy ) behind this distinction is to allow those whose mental condition does not represent a continuing danger to the public to go free , while permitting the detention of those who , though they are not criminally responsible for their actions , do remain a threat Unfortunately , the principles evolved to implement external cause distinction ) has led to some undesirable consequences , eg the categorisation of conditions such as epilepsy and diabetes as insanity , and to some ( arguably ) unsustainable distinctions , es between the situations in Quick and Hennessy . A better approach might be to have a single defence resulting in a special verdict of " not guilty by reason of automatism " , thereby allowing the court discretion to deal with the individual in the most appropriate way , following consideration of medical and social reports . The courts have , however , made it clear that any such development must be legislative , rather than judicial ( R u Sullivan ( 1983 ] ) . Mistake A mistake of fact ( but not of law ) may operate as a defence where , as a result of the mistake , the defendant did not form the required mens reg , eg it is not theft when a person
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appropriates property belonging to another in the honest , though mistaken , belief that it is his . This applies whether he mistook the property for his own or whether , due to a mistaken belief regarding the civil law concerning the transfer of ownership , he honestly thought the property was now his — these are both mistakes of fact . However , it would not be a defence to argue that he honestly , though mistakenly , believed it was not against the law to appropriate someone else's property - this is a mistake of law . In all cases the mistake must be an honest one . In some cases it must also be reasonable . The present position was established in R. v . Williams ( 1987 ) • Where the mens rea required is either intention or subjective recklessness , the mistake need only be honest . There is no requirement that it also be reasonable — though the less reasonable the mistake , the less likely a jury is to believe it was honestly made . • Where the mens rea required is either objective recklessness or negligence , the mistake must be both honest and reasonable . The law will not invest the reasonable man with the defendant's unreasonable mistake . • Where the offence is one of strict liability ( see above ) , mistake is no defence , even where both honest and reasonable . • Mistake is no defence where it results from voluntary intoxication ( R. v . O'Grady ( 1987 ] ) .
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Intoxication Whether intoxication ( by drink or drugs ) should be a defence raises a dilemma between policy and principle . As a matter of policy , it is wrong that an intoxicated offender should be able to avoid responsibility for their actions simply because of their intoxication . As a matter of principle , however , there can be no doubt that intoxication can prevent someone forming the required mens rea . In an attempt to resolve this , the law has developed principles based partly on the distinction between voluntary and involuntary intoxication , and partly upon the type of offence committed . Involuntary Intoxication This is where the person is either forced to consume the intoxicating substance against their will , or where they consume it in complete ignorance of its intoxicating properties ( eg . where a sort drink has been spiked with alcohol ) . Intoxication is not involuntary where a person voluntarily consumes a substance , knowing it to be intoxicating , but is mistaken as to its strength ( R. v . Allen ( 1988 ] ) .
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Involuntary intoxication is a detence to any crime where , taking his intoxicated state into account the defendant did not form the required mens rea ( R. a . Shechan ( 1975 ) ; R. v . Pordage [ 1975 ] ) Voluntary intoxication This is where a person voluntarily consumes a substance , knowing it to be intoxicating . While ( as might be expected ) the law shows less sympathy for the voluntarily intoxicated offender , this may still be a defence where , taking his intoxicated state into account he did not form the required mens rea . Whether it will , in such circumstances , be allowed as a defence depends upon the type of offence committed . Voluntary intoxication may be a defence to crimes of specific intent , but not to crimes of basic intent ( DPP v . Majewski ( 1976 ) : R v . Lipman ( 1969 ] ) . Crimes of specific intent include murder , all attempts to commit a crime and all offences where the mens res extends beyond the actus reus ( crimes of ulterior intent , eg . the mens res of theft extends beyond the dishonesty of the appropriation because of the additional require ment of an intention to permanently deprive ) . Crimes of basic intent include all other crimes , including manslaughter .
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There are two further points regarding intoxication that we should note : • Dutch courage - voluntary intoxication will not be a defence to crimes of specific intent where the defendant , having formed the intention to commit the crime , becomes intoxicated in order to overcome sober inhibitions ( ie to acquire Dutch courage ) that would otherwise prevent him from carrying out that intention ( Attorney General for Northern Ireland v . Gallagher ( 1963 ] ) . • Bona fide medical treatment - voluntary intoxication may be a defence to any crime where the intoxicating substance is consumed in pursuance of bona fide medical treatment or prescription . This applies where the effect of the substance is usually sedative or stabilising , provided the defendant was not subjectively reckless to a risk the substance might induce aggressive , unpredictable or uncontrollable conduct ( R. D. Bailey ( 1983 ) ; R v . Hardie ( 1984 ] ) . The substance concerned need not have been medically prescribed . Incapacity The position regarding the criminal capacity of minors is : • Children under 10 years of age are not criminally responsible for their actions ( Children and Young Persons Act 1963 , section 16 ) . They are presumed incapable of
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forming mens res . However , the courts and local authorities do have powers outside the Criminal law to deal with such children . Furthermore , where a child under ten commits an offence at the instigation of an adult , the adult may be liable through the innocent agency of the child . • Children over the age of ten have ( following the abolition of the presumption of doli incapar - Crime and Disorder Act 1998 , section 34 ) full criminal responsibility . However , as might be expected , there are important differences in approaches to the punishment of young and adult offenders . Duress A person may have a defence where they can show they were forced to commit the crime because of threats made to them by another person . This is known as acting under duress . For this defence to be successful , the defendant must show . • that he was ( or may have been ) forced to act as he did because , as a result of what he reasonably believed the threatener to have said or done , he had good reason to fear that if he did not act in this way , the threatener would kill him or cause him serious physical injury , and • that a reasonable man , acting in the circumstances as the defendant reasonably believed them to be and sharing those characteristics of the defendant that would influence the effect of the threat upon him , would not have responded differently .
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This defence is also available where the threat of death or serious injury is aimed not at the defendant himself , but at someone whom he is under a duty to protect . This obviously includes members of his family and may , in appropriate circumstances , include strangers , eg . where an armed robber threatens the life of a customer in order to force a bank cashier to hand over money . Duress is not a defence where : • the defendant had an opportunity before the commission of the offence to avoid the threatened consequences ( R. v . Hudson and Taylor ( 1971 ] ) ; • the source of the threat is an organisation ( eg . a criminal gang or terrorist group ) which the defendant joined voluntarily and with the knowledge that threats of this kind might be made ( R. v . Sharp ( 1987 ] ) ;
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• the offence concerned is murder ( R o House [ 1987 ] ) or attempted murder ( R d . Gotts ( 19921 ) . Necessity There is no general defence of necessity ( Ru Dudky and Stephens ( 1884 ] ) . However , the courts have recognised a limited form of necessity defence , often referred to as duress of circumstances . This covers situations where the defendant has been forced to act , not as a result of threats made by another person , but in response to the circumstances in which he finds himself ( Ru . Conuvy ( 1988 ) R u Martin ( 19891. The causative circumstances must be external to the defendant ( R. Rodger ( 1998 ] ) . Therefore , this defence is subject to the same two - part ( subjective / objective ) test and the same limitations as the defence of duress by threats ( see above ) .
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Self - defence ( and its variations ) Where a person is faced with a violent , unlawful or indecent assault , he may be justified in using force in sell - defence to repel that assault . Both the decision to use force and the degree of force used must be lobjectively ) reasonable in the circumstances as he ( subjectively ) believed them to be ( Rt . Williams ( 1987 ) : R . Owino 1995 ] ) . In deciding the question of reasonableness regarding both issues , the following factors must be taken into account : • the circumstances as the defendant honestly believed them to be , even if this belief was mistaken ( except where the mistake was due to voluntary intoxication - see above ) : • the time available to the defendant to consider what to do ( Palmer . R ( 1971 ) . Thus , a decision to use force or a degree of force used which may appear unreasonable with hindsight may be regarded as reasonable when the circumstances as the defendant believed them to be and the time available for reflection are taken into account There is no requirement that the degree of force used be objectively proportionate to that threatened , or that the defendant sought to retreat or avoid the controntation IR . v . Bird [ 1985 ] ) . These are simply factors to be taken into account in deciding whether the defendant's conduct was reasonable . Using force in defence of others or in defence of property is govemed by the same principles outlined above
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Acting in the Prevention of Crime This is a statutory defence under the Criminal Law Act 1967. Section 3 ( 1 ) provides : " A person may use such force as is reasonable in the circumstances in the prevention of crime , or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large . " Thus clearly has considerable overlap with self - defence and its variants ( outlined above ) and its application is governed by the same principles Consent of the Victim Cenerally , consent of the victim is no defence . However , there may be a defence to a charge of common assault where it is shown both that the victim consented and that the activity involved is not contrary to the public interest ( R. a Donocen ( 1934 ) : R Brown ( 1993 ) Furthermore , consent may be a defence to a charge of even a serious assault arising out of the following circumstances .
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Surgical treatment . Consent is necessarily a defence here to conduct that would otherwise amount to grievous bodily harm . Emergency surgical treatment without consent would appear to be justified either on grounds of public policy or necessity . Sports . It would seem that players are held to have consented to contact incidental to the sport . This may include some instances of foul play , but not the deliberate for professional foul ( R. Billingshurst [ 1978 ] ] or conduct which has nothing to do with the sport les throwing a punch in a rugby scrum ) . The position of boxing is more unusual , in that the violent contact is not incidental to the sport but is rather its primary objective . However , it seems the same principles apply . Finally , it seems this exception extends beyond organised games to include rough and undisciplined play , provided there was no intent to cause injury ( R. Jona ( 1987 ] ) . Revision Motes You should now write your revision notes for General Defences in Criminal Law . Here is in cumple for you and some suggested headings
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Der Automatism • Dan automaton - no conscious , voluntary control over his actions Cause of the automotive state must be external ( Quick , Hennessy ) • Not available where automotive state self - induced by drink or drugs ( Lipan ) Defo - Automatism Deta - Insanity DefD - Mistake Deko - Intoxication ( involuntary ) DeAS - Intoxication ( voluntary ) Delt - Incapacity Defz - Duress by Def - Duress of Circumstances DergSelf - Delence DefConsent
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Using your cards , you should now be able to write a short paragraph in response to each of the following questions What requirements must be met for a successful defence ot 1. Automatism ? 2 Insanity ? 3. Mistake ? 4. Intoxication ? 5. Incapacity ?
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Murder Murder is an offence at common law subject to a mandatory sentence of life imprisonment . The actus reus of murder This is • an unlawful act • that causes the death of another human being The unlawful act is usually a direct assault on the victim's person , though this is not necessarily the case , es , in R. u Hayverd ( 1908 ) it was held that causing death from fright slone was sufficient . Similarly , under the rules relating to causation discussed earlier , it could be murder where the victim , seeking to escape a murderous assault jumped from a window and died from the fall , provided the escape attempt was reasonably foreseeable .
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The victim must be a living human being . It is not possible to murder someone not yet bom or already dead . Regarding birth , in order to be a victim of murder , the child must be wholly expelled from the mother's body and have an independent existence . Thus , where a child , having been bom , dies as a result of injuries sustained in the womb , this may be murder . Where , however , the child is bom dead as a result of those injuries , the appropriate ottence would be child destruction . Where a chuld is killed during the first year of its life by its mother , the appropriate offence may be infanticide rather than murder , Regarding death , the courts adopt a test of brain death ( R v . Malcherek ( 1981 ] ) . Historically , for both murder and manslaughter , death had to occur within a year and a day of the injury being inflicted . This rule was originally introduced to Desolve problems of causation . Subsequent medical advances removed this justification and the rule was abolished by the Law Reform ( Year and a Day Rule ) Act 1996. However , the Attorney General's consent is required for proceedings where the death occurs more than three years after the injury or where the person has already been convicted of an offence committed in circumstances connected with the death . The mens rea of murder This is traditionally referred to as malice aforethought . While this may be misleading las neither ill - will nor premeditation are required ) , it is a vital concept as it is the presence of malice aforethought which distinguishes murder from manslaughter . There are two forms of malice aforethought ( R. v . Moloney ( 1985 ] ) :
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• Intention to kill ( express malice ) ; • intention to cause grievous bodily harm ( implied malice ) . The test for intention is that outlined earlier in the general discussion of mens rea . Regarding implied malice , there is no need to show that the defendant knew or foresaw any risk of death resulting from his actions . It is sufficient that he intended to cause grievous bodily harm and that death in fact resulted ( R. v . Vickers ( 1957 ] ) . Manslaughter There are two general categories of manslaughter voluntary and involuntary . Voluntary manslaughter . Killings wluch would amount to murder lie the defendant has malice aforethought ) but for the operation of one of three partial defences :
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• diminished responsibility , • provocation : • Killing in pursuance of a suicide pact ( Homicide Act 1957 ) Involuntary manslaughter . Killings without malice aforethought and takes two forms • constructive for unlawful act ) manslaughter , • gross negligence manslaughter . IR ... Adomak ( 1994 ) Voluntary manslaughter At common law there was only one form of voluntary manslaughter - killing under provocation . The Homidde Act 1957 gave statutory force to this category and added a further twowilling while suffering from diminished responsibility and killing in pursuance of suicide pact .
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Diminished responsibility ( Homkide Act 1957 , section 2 ) . It is voluntary manslaughter where a person kills another while " suffering from such abnormality of mind ( whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury ) as substantially impaired his mental responsibility for his acts or omission in doing ... the billing " Thus , the defendant must show , • he was suffering from an abnormality of mind ( whether due to an internal or external cause ) ; • this substantially impaired his mental responsibility for the killing A person's state of mind is abnormal if it is so different from that of ordinary people that a reasonable man would regard it as abnormal [ R. Byrne [ 190 ] ) . This includes not only questions of perception and reason but also the ability to exercise will power . Thus , it may be diminished responsibility where a person , though they know it to be wrong . Cannot control an irresistible impulse . A substantial impairment is one that is more than trivial but need not be total ( R o Lloyd ( 19671 ) .
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This special defence clearly has similarities with both automatism and Insanity and it is useful to contrast the differing requirements and effects of these mental state defences : Defence to Cause of Result Degree of impairment Required Automatism All crimes External Total Acquittal Insanity All crimes Internal Total Special verdict Diminished Murder only Either Substantial Conviction for Responsibility Voluntary Manslaughter Provocation ( Homicide Act 1957 , section 3 ) . It is voluntary manslaughter where the killer was " provoked ( whether by things said or things done or by both together ) to lose his self control and that " whether the provocation was enough to make a reasonable man do as he did shall be left to ... the jury , and ... the jury shall take into account everything both said and done according to the effect in their opinion , it would have on a reasonable man " . D Thus , the defendant must satisfy two elements :
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• The subjective element -- that as a result of things said or done or both together , he was provoked to lose his self - control . The loss of self - control must be sudden and temporary ( R v . Duffy ( 1949 ] ) . This is intended to distinguish between genuinely uncontrollable reactions and calculated acts of revenge However , it has caused a number of difficulties , particularly where women have delayed ( albeit for a briel period ) in striking back against abusive partners . However , it is now clear that this requirement does not mean that the response has to follow immediately upon the provocative conduct ( R v . Ahluwalia ( 1992 ) . Furthermore , it is also recognised that any history of provocation is relevant in deciding whether the defendant lost his self control - what might be termed last - straw provocation ( R . Thornton ( 1921 ) . • The objective element - that a reasonable man , in those circumstances ( including any history of provocation ) , would ( or may have been provoked to lose his self control and would ( or may ) have responded in the same way as the defendant . In DPP a Camplin ( 1978 ) , Lord Diplock stated that a reasonable man for these purposes is : " a person having the power of self - control to be expected of an ordinary person of the sex and age of the accused , but in other respects sharing such of the accused's characteristics as ... would affect the gravity of the provocation to him , and that the
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question is not merely whether such a person would in like circumstances be provoked to lose his self - control but also whether he would react to the provocabon as the accused did . " It seems clear from this that particular characteristics of the defendant may be relevant to the reasonableness both of the loss of self - control and the subsequent response . However , some later decisions leg . Ru . Marshall ( 1995 ) ; Luc Thiet Thuan R ( 1997 ) drew a distinction between these control " and " response " clements , arguing that age and sex only were relevant to the control element but that other characteristics may relevant to the response element . This caused much concern and confusion , requiring juries to engage in the " mental gymnastics " of an arguably unworkable distinction . However , in RoSmith ( 2000 ) , the House of Lords ( by a 3-2 majority ) held that it did not understand ... a distinction ... between matters affecting the gravity of the provocation and matters affecting self - control " ( Lord Clyde ) and that therefore , * the particular characteristics of the accused may be taken into account at both stages of the inquiry " ( Lord Slynn ) . According to Lord Hoffmann , " the jury may think that there was some characteristics of the accused , whether tertiporary or permanent , which affected the degree of control which society could reasonably have expected of him and which it would be unjust not to take into account " . The provocation need not be aimed at this characteristic , though it will clearly be of particular relevance where it is , eg where an impotent man is taunted about that condition
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Finally , we should note that the provocation need not come from the victim nor be aimed at the defendant It may still be a defence where the provocation comes from a third party ( R. D. Davies ( 1975 ] ) or is aimed at a third party ( R. D. Pearson ( 1992 ] ) . It may still be raised even where the provocation is self - induced by the defendant's own conduct ( R. Johnson ( 1989 ) ) . These are simply factors to be considered in deciding whether the loss of self - control and subsequent response were reasonable . Suicide pacts ( Homicide Act 1957 , section 4 ) . It is voluntary manslaughter where one person kills another as part of a suicide pact between them . A suicide pact is a common agreement between two or more persons having for its object the death of all of them , whether or not each is to take his own life " and " nothing done by a person who enters into a suicide pact shall be treated as done by him in pursuance of the pact unless it is done while he has the settled intention of dying in pursuance of the pact " . Involuntary manslaughter This is killing without malice aforethought and takes two forms ( Rd . Adomako ( 1994 ] ) ;
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Constructive ( or unlawful act ) manslaughter . The actus rrus of this offence is : • an unlawful act • that is dangerous , in that it exposes others to the risk of some harm , albeit not serious harm ( R. v . Church ( 1965 ] ) ; • and that causes the death of the victim The mens rea is that required for the unlawhil act . It is not necessary to show that the defendant knew the act was either unlawful or dangerous or that he was aware of the circumstances which made it dangerous . It is sufficient that a reasonable man would have been aware of those circumstances ( R. v Watson ( 1989 ] ) and have regarded the act as dangerous ( DPP u Newbury and Jones ( 1976 ) ) , Gross negligence manslaughter . The actus reus of this offence is : • a duty of care owed by the defendant to the victim , • a breach of that duty by the defendant , • that causes the death of the victim
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The mense is gross negligence that the jury considers justifies a criminal conviction . Lord Mackay , in R v . Adomaks ( 1994 ) , stated that this was " supremely a jury question " , the question being whether , having regard to the risk of death involved , the defendant's conduct was so bad in all the circumstances as to amount , in the jury's opinion , to a criminal actor omission Involuntary Manslaughter - Criticisms and Reforms The complexity of the law in this area has long given cause for concern and in 19 % the Law Commission published a report containing recommendations for reform and a draft bill . In May 2000 the Government published its own proposals based on the Commission's report . Consultation on these proposals ends in September 2000 The two main cnticism of the present law are that : • the test for gross negligence manslaughter is circular , in that the jury is directed to convict the defendant if they think his conduct was criminal • the scope of constructive manslaughter is too broad . encompassing both conduct which is little short of murder and that which is little more than an xodent This creates
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problems for judges in determining the appropriate sentence , and the public in understanding why a particular sentence has been passed . Therefore , the Government is considering three new offences : Reckless killing . A person would commit this offence it . • his conduct causes the death of another , • he is aware of a risk that his conduct will cause death or serious injury : • it is unreasonable for him to take that risk having regard to the circumstances as he knows or believes them to be . The maximum penalty would be life imprisonment . Killing by gross carelessness . A person would commit this offence if . • his conduct causes the death of another • a risk that conduct will cause death or serious injury would be obvious to a reasonable person in his position • he is capable of appreciating that risk at the material time but did not in fact do so and either : • his conduct falls far below what can reasonably be expected in the circumstances , or or • he intends by his conduct to cause some injury , or is aware of , and unreasonably takes , the risk that it may do so , and the conduct causing ( or intended to cause ) the injury constitutes an offence .
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The maximum penalty would be 10 years imprisonment Death resulting from the intentional or reckless causing of minor injury . A person would commit this offence it : • his conduct causes the death of another • he intended or was reckless as to whether some injury was caused ( although death or serious injury was not foresecable ) ; • the conduct causing or intended to cause , the injury constitutes an offence . The maximum penalty would be between five and ten years ( possibly seven ) .
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Revision Motes You should now write your revision notes for Murder & Manslaughter Here is an example for you and some suggested headings Murder Mens New • malice aforethought it wo forms - Moloney ! • express mailice intention to kill • implied malice intention to cause GBH ) • test for intention ( Malonty , Nedrict , Hancoct & Shankland , Woollin ) • re implied no need to show foresight of risk of death - sufficient that D intended GBH and death resulted ( Vickers)
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Murder - Actus Reus Murder 2 Mens Ree M'slaughter Diminished Responsibility M'slaughter2_Provocation M'slaughter ) -- Suicide Pact M'slaughter - Constructive M'slaughters - Cross Negligence M slaughter - Criticisms and Reforms Using your cards , you should now be able to write a short paragraph in response to each of the following questions 1. Explain the actus rous and mens me of murder . 2 Describe the partial defence of diminished responsibility , 3. Describe the partial defence of provocation 4. Describe the partial defence of suicide pacts . 5. Explain the actus reus and mens rea of constructive manslaughter .
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6. Explain the actus rous and mens res of gross negligence manslaughter . 7. What criticisms may be made of the present law of involuntary manslaughter and what reforms have been proposed ?
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Common Assault Under Section 39 of the Criminal Justice Act 1988 , common assault is punishable by up to six months imprisonment ( up to two years if racially aggravated - Crime and Disorder Act 1998 , section 29 ) and / or a fine . At common law , assault and battery were two separate offences and Section 39 appears to preserve this distinction . However , Section 40 refers only to common assault and in R. v . Lynsey ( 1995 ) this was held to include both assault and battery . Thus it seems that either assault or battery ( in their common law sense ) are now both to be regarded as common assault . The actus reus is either Assault . Placing another in fear of immediate and unlawful personal violence . This may be done by acts alone leg . raising one's fists at someone ) or by acts and words together ( e.g. raising one's fists , saying " I'm going to thump you ! " ) . Words alone ( and even menacing silence ) can amount to an assault , provided the victim fears immediate violence ( R. v . Ireland , Ru . Burstow ( 1997 ] ) . However , words can also negate the effect of acts ( eg , it would not be an assault to raise one's fists while saying " If you were a younger man , I would thump you ! " )
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( Tuberville . Sevege ( 1669 ] ) -- though this is not the case where the words merely announce a condition by which the victim can avoid the threatened violence leg . raising one's fists while saying " Unless you give me your money , I will thump you ! " ) ( Blake u Barnard ( 1840 ) ] , or Battery - the application of unlawful personal violence on another . Any degree of physkal contact ( however slight ) without consent is sufficient . However , a person is held to have impliedly consented to everyday physical contact leg , an accidental collision in a busy street , tapping on someone's shoulder to attract their attention ) . The application of force is usually direct leg by hitting or spitting ) but need not be so , ag it would be a battery if A pulls B's chair away as B is sitting down . This also emphasises that a battery does not have to be accompanied by an assault , The mens reis either • intention to place another in fear of immediate and unlawtul personal violence or subjective redlessness as to the risk of doing so , or intention to apply unlawful personal violence to another or subjective redklessness as to the risk of doing so . IR u Venna ( 1976 ) ; R = Sezege and Purmenter 19911
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Assault occasioning actual bodily harm This is an offence under section 47 of the Offences Against the Person Aa 1861 , punishable by up to five years imprisonment ( up to seven years if racially aggravated - Crime and Disorder Act 1998 , section 29 ) . The actus reus of this offence is • common assault • that caused actual bodily harm . " Actual bodily harm " is harm that is more than trivial but not really serious ( DPP v . Smith [ 1961 ] ) . This indicates that the victim must be caused some noticeable discomfort , albeit of a minor and / or temporary nature . " Harm " includes not only physical but also psychiatric harm ( but not mere emotions , such as fear , distress or panic ) ( R v . Chan - Fook 1199411 . Regarding the mens rea , it is sufficient to show the defendant had either formed an intention or was subjectively reckless with regard to the assault and that yctual bodily harm was in fact caused . It is not necessary to show the defendant either intended or foresaw that actual bodily harm would or might be caused ( R. v . Sarege and Parmenter ( 1991 ] ) .
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Unlawful and malicious wounding or infliction of grievous bodily harm This is an offence under section 20 of the 1861 Act , punishable by up to five years imprisonment ( up to seven years it racially aggravated - Crime and Disorder Act 1998 , section 29 ) . The actus reus of this offence is either • Unlawful wounding . For wounding to occur , both the inner and outer skin must be broken ( Moriarty u . Brookes ( 1834 ) , or • Unlawful infliction of grievous bodily harm . " Grievous bodily harm " means really serious bodily harm ( DPP u Smith ( 1961 ) ) . Again , " harm " includes psychiatric harm ( R. d . Ireland , Rv . Burstow ( 1997 ] ) . Either of the above is sufficient there may be a wounding without there also being grievous bodily harm , and vice versa . Regarding the mens rea , it is sufficient to show either intention to inflict some harm , albeit not serious harm ; or • subjective recklessness as to the infliction of some harm , albeit not serious harm .
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It is not necessary to show that the defendant intended or foresaw that wounding or really serious harm would or may result ( R. v . Savage and Parmenter [ 1991 ] ) . Unlawful and malicious wounding or causing grievous bodily harm with intent to do grievous bodily harm or resist lawful arrest This is an offence under section 18 of the 1861 Act , punishable by up to life imprisonment The elements of this offence are : • actus reus — as for section 20 ( see above ) . • mens rea - either intention to do grievous bodily harm ( recklessness is not sufficient ) ; or • intention to resist lawful arrest , and either intention or subjective recklessness to the causing of some harm , albeit not serious harm .
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Criticisms and Reforms The Offences Against the Person Act 1861 has been subject to many criticisms . It was an act consolidating existing law and much of its language is archaic and confusing • In particular , there are inconsistencies in the terms used to indicate the conduct required for the various oftences " occasioning ' . " inflicting " , " causing " , etc. • There have also been difficulties over the scope of the term bodily harm " -in particular , the extent to which this covers psychological as well as physical harm . • Furthermore , there is frequently a confusing lack of congruence between the actus reus and mens rea . For example , for a section 20 GBH , the defendant must have caused serious injury , but the mens re only requires intention or foresight of some harm being caused ( R. D. Sarege and Permenter ( 1991 ] ) . These complexities and confusions create additional burders for the police and courts , and create a risk of injustice for defendants . Significant reforms were proposed in a Law Commission report in 1993. In 1998 , the Home Office issued a draft Bil , based on the Law Commissions proposals , for consultation . The aim of the Bill is not to make the law either tougher or more lenient , but rather to make it clearer and easier to use . The main offences proposed are :
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• intentionally causing serious injury ( clause 1 ) , to replace section 18 GBH with intent ; • recklessly causing serious injury ( clause 2 ) . to replace section 20 GBH ( the proposed maximum penalty is seven years imprisonment - the increase from the present maximum of five years is justified as the new offence would require foresight of serious harm , not merely some harm as at present ) ; • intentionally or recklessly causing injury ( clause 3 ) , to replace section 47 ABH ( it would be necessary to prove intention or recklessness in relation to the injury , not merely the assault as at present ) ; • assault ( clause 4 ) ; • Clause 15 makes it clear that injury includes both physical and mental harm . It also proposes that for clause 1 offences only , harm would include the transmission of a disease , though this is likely to prove controversial . While this Bill would bring much needed clarity and consistency to this area of the law , due to pressure on the legislative timetable it is unlikely to be enacted before 2002 at the earliest .
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Revision Notes You should now write your revision notes for Non - fatal Assaults . Here is an example for you and some suggested headings NFAZ - ABM • s.47—5 yrs imprisonment • ar = common assault that causes ABH ( more than trivial , not really serious DPP v . Smith - inc psychiatric harm — Chan - Fook ) mr intention / subjective recklessnos re assault - not necessary to show intention or foresight re . ABH ( Sevege & Parmenter ) NFAD - Common Assault NFAQABH NFAGBH NFAGBH with intent NFAD - Criticisms
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Using your cards , you should now be able to write a short paragraph in response to each of the following questions : 1. Explain the elements of common assault . 2. Explain the elements of assault occasioning ABH . 3. Explain the elements of unlawful and malicious wounding or inflicting GBH . 4. Explain the elements of unlawful and malicious wounding or causing GBH with intent . 5. What criticisms may be made of the current law regarding offences against the person and what reforms might be introduced ?
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Theft Under section 1 of the Theft Act 1968 , theft is the dishonest appropriation of property belonging to another with an intention to permanently deprive the other of it . The maximum sentence is seven years imprisonment . Therefore , the actus reus of theft is : Appropriation . By section 3 , this is " any assumption ... of the rights of an owner " . Following R. v . Morris ( 1983 ) , any assumption of any of the rights of the owner is sufficient - it is not necessary that the thief assumed all the rights of the owner . Thus , doing anything in relation to property which may properly only be done by the owner may be an appropriation leg . in Morris , switching price labels in a supermarket ) . We might have thought that an appropria tion had to be something done without the consent or authority of the owner . The Criminal Law Revision Committee , whose report formed the basis of the Act , certainly thought so , and the inclusion of the specific offence of obtaining property by deception ( section 15 ) lends weight to this argument . However , the House of Lords in R. v . Gomez ( 1993 ] ( Lord Lowry
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disenting took the contrary view - an at could be an appropriation notwithstanding that it was done with the consent or authority of the owner Oure why the only adopted an interpretation that seems clearly contrary to the intention of Parliament as revealed by reading the Act a whole and by reference to the CIRC report on which it is based is to put it bluntly , anyhody : guess . On i broadest interpretation , the ratio in Gomes me that anything we do to someone else's property is potentially theft , depending on our state of mind at the time . However , the precise scope of Come is still uncle R. Mes ( 1986 ) and R. Hopkins and Kendnd ( 199711. Nevertheless , it seems the at must be at least contrary to a civil law right is taking property that is the subject of a valid it is not en appropriation whereas taking property that is the subiect of a gift procured by trwad or undue influence may be ) . Finally , section states that it may be an appropriation where a person comes by the property ( whether innocently or not without stealing it but subsequently assumes anght to it by keeping or dealing with its the owner kg where a person initially horrows a book from another and subsequently sells it to a second - hand bookshop rather than returning it - though the initial borrowing may itself , under com amount to an appropriation ' ) Property . By section property includes " money and all other property , real or penonal including things in action and other intangible property Intangible property refers to property that does not physically exist such as a debt or copyright This means that almost anything can be stolen . However , land and things severed from land ) generally cannot be stolen unless
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• the person is acting as a trustee or personal representative and deals with the land contrary to the obligations imposed by this status ; • a person not in possession of the land takes something from the land leg . cultivated flowers or fruit - wild flowers etc cannot be stolen unless picked for commercial purposes , nor can wild animals be stolen ) ; • a tenant appropriates any fixture or structure let with the land leg . if the teriant sells a garden shed or greenhouse ) Belonging to another . By section 5. property belongs to " any person having possession or control of it , or having in it any proprietary right or interest " . This means that in appropriate circumstances , we can even steal our own property , eg , if someone takes their car from a garage without paying for repairs ( R. v . Turner ( 1971 ) . Property will also be regarded as belonging to another where : • the property is the subject of a trust ( it belongs to the beneficiaries ) ; • a person receives property from another and is under an obligation to retain and deal with it in a particular way ( it belongs to that other ) , eg . A receives money from his
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fatmates to pay household bills but spends the money on himself ( Densidge a Burnett ( 19841 ) . This is only relevant where A forms his dishonest intent after receiving the money . If he never intended to pay the bills then following Goma , he commits theft when he is given the money , • a person receives property by another's mistake and is under a legal obligation to make restoration to that other , es A receives an over payment of wages through their employer's mistake ( Alterney General's Reference ( Na 1 of 1883 ) [ 1964 ] ] The mens rea of theft k Dishonesty . The Act does not provide a definition of dishonesty . However , section 2 states that a person is not dishonest where • he appropriates the property in the belief that he has a legal right to deprive the other person of it • he appropriates the property in the belief that the other person would consent if they knew of the appropriation and its circumstances , • he appropriates the property ( except as trustee or personal representative ) in the belief that the person to whom it belongs carvot be discovered by taking reasonable steps
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In all other circumstances the test for dishonesty is that established in R v . Ghosh ( 1983 ) person is dishonest if : • what they did is regarded as dishonest according to the ordinary standards of reasonable and honest people , and • the defendant knew it was so regarded — it is irrelevant whether the defendant himself regarded his conduct as dishonest Intention to permanently deprive . Section 1 makes it clear that it is immaterial whether the appropriation is made with a view to gain , or is made for the thief's own benefit " . What is important is that the defendant intends the other person to be permanently deprived of the property , eg , it will be theft where A. in an act of malice , takes and destroys a treasured possession belonging to B. Therefore , it will not be theft where A appropriates property belonging to B but intends , at some point , to return it except where ( section 6 ) : • he treats the property as his own to dispose of regardless of the other's rights . Borrowing and lending may be included here where it is " for a period and in circumstances making it equivalent to an outright taking or disposal " . eg . A borrows " B's weekly bus pass and returns it after it has expired . While B has not been
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permanently deprived of the thing itself , he has been permanently deprived of its value the effect is the same as if A had never returned the pass itself . This may be problematic where A appropriates and subsequently abandons B's property , eg . A takes B's bicycle from outside B's house and later abandons it some miles away . It seems that if A abandons the property in circumstances where it is likely to be returned to B , there is no theft , but if the circumstances are such that return is unlikely then this may be theft . Whether this is so is clearly a question of degree and will depend on the circumstances of the particular case . • he parts with the property subject to a condition as to its return that he may not be able to performes . Where A pawns property belonging to B
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Introduction Proof of commission of the actus rous together with formation of the required mense will give rise to prima facie criminal liability . However , the defendant may rebut this prima facie case by establishing a defence . The operation of these defences again highlights the importance of fault as they show the defendant either did not commit the actus reus voluntarily , or did not form the required mens ro , or his actions were in some way justified or excusable . Mon - Insane Automatism Here , the defendant argues that at the time of committing the actus reut he had no conscious , voluntary control over his actions - he was acting as an automaton . This is a delence because a person cannot be held at fault regarding conduct over which they had no control .
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OPLStrkt Uability ( evaluate ) • arguments against contrary to general principle , achieves little ; unnecessary stigmatisation • arguments for situations where collective interest prevails over individual : encourage greater vigilance avoids complications in corporate liability , fault still relevant to sentencing • can be justified in limited and exceptional circumstances - widespread use unacceptable CPLOActus Reus ( Acts and Omissions ) GPLC - Actus Reus ( Causation ) GPL Mens Rea ( intention ) GPLO - Mens Rea ( Recklessness ) GPL Mens Res ( Coincidence with AR ) GPL Transferred Malice GPL - Strict Liability ( describe ) GPLD - Strict Liability ( evaluate )
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Arguments against • contrary to general principle ; • objectionable and serves no useful purpose to punish someone who has taken reasonable care to comply with the law , • results in unnecessary social stigmatisation Arguments for • while it may be generally desirable that criminal liability should depend upon proof of individual fault , there are circumstances where the collective of public interest in prohibition outweighs that individual interest • imposition of strict liability may encourage positive steps to comply with the law , rather than merely negative action to avoid non - compliance , • avoids the complications that would otherwise arise in keking to establish corporate liability leg for pollution offences ) ; while fault for the degree of fault ) may not be relevant to liability , it is still taken into account in sentencing
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Also , whild liability for such offences may be strict , it is not absolute . The defendant may be able to raise one of the general detences outlined below . Furthermore , a statutory defence of due diligence or reasonable precautions is often provided thereby making the offence , effectively , one of negligence liability Therefore , the use of strict liability in the criminal law may be justified in these limited and exceptional circumstances . However , its extensive use would be clearly unacceptable . Revision Motes You should now write your revision notes for General Principles of ability . Here is an example for you and some suggested headings
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employ a presumption of mense when interpreting criminal statutes . Thus , Parliament must uk very clear words if it wishes to create an offence of this type . The reason for this reluctance is clear the imposition of strict liability is contrary to the general principles of the criminal law that , as we have seen focus on issues of fault Lord Scarman ( in Germon ( Hong Kong ) Lid u . Attorney General of Hong Kong ( 1984 ] ) provided guidance for the identification of statutory offences of strict liability . there is a presumption in favour of a requirement of mens red when Interpreting criminal statutes ; • this is particularly strong where the offence is " truly criminal " ; • this can only be displaced where the offence was clearly intended to be one of strict liability , • this can only occur where the statute deals with an issue of social concern ; • even then , the presumption can only be displaced where the imposition of strict liability would encourage greater care to prevent the commission of the unlawful act . Therefore , in identifying such offences , two main factors must be considered :
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• The wording of the statute some words leg " use " ) are generally regarded as strict liability words , while others leg " knowingly " ) are generally regarded as mens rea words . However , there are no hard and fast rules here , and some words les cause " and " permit " ) have been interpreted differently in different contexts . • The nature ( or context of the offence given the above , this seems to be the decisive factor . The courts have tended to draw a distinction between acts that are truly criminal ( for which mens ro is required ) and acts that happen to be regulated by the criminal law ( for which strict liability may be appropriate ) . Therefore , it seems that strict liability offences fall into two categories • the regulatory offence ( or quasi - crime ) , eg , parking offences , • the public interest ( or social danger ) offence , es dangerous drugs , environmental pollution ( Alphacell Lid u Woodward ( 1972 ] ) . As strict liability represents a signuficant departure from general principle , we must be considered whether its use can be justified at all in the criminal law .
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continuing offences where the actus reus of the offence is of a continuing nature leg . rape ) , it is sufficient the defendant forms the required mens rea at some point during its commission - mens rea need not be present from the outset ( Fagan v Metropolitan Police Commissioner [ 1968 ] ) . • the transaction principlewhere the defendant has committed a series of related acts ( one of which is the actus reus of the offence ) , constituting a single transaction , it is sufficient the defendant forms the required mens rea at some point during this transaction ( Thabo Meli v . R. ( 1954 ) ; R. v . Church [ 1965 ] ) . This applies even where there is an appreciable interval between the commission of the actus reus and formation of the mens rea ( R. v . Le Brun ( 1991 ] ) . Transferred Malice The concept of transferred malice applies where a criminal act directed at one person or item of property results , in fact , in injury , loss or damage to another person or item of property , e.g. where A aims a blow at B but misses and strikes C instead . The malice toward the anticipated victim is transferred to the actual victim , preventing the defendant from avoiding liability ( R « Latimer 11886 ] )
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This will only apply where the anticipated and actual offences are of the same nature . Where this is not the case , the malice cannot be transferred , eg where A throws a stone at B but misses and breaks Cs window instead . However , in such circumstances , the defendant may also have the required mens red for the actual offence in the above example , A may have been reckless regarding the risk of damage to C's window , Where the defendant would have a defence against the anticipated victim , this will also be transferred and operate against the actual victim ( R. u . Gross ( 19131 ) , eg were A to aim a blow in self - defence at B but miss and strike C , A would be able to raise self - defence to any charge of assaulting C. Strict Liability in the Criminal Law Offences of strict liability are those for which there is no requirement of mens rea regarding one or more elements of the actus reus , eg with possession of a prohibited substance , it is sufficient to show the defendant knew of the existence of the substance . It is not necessary to show he knew what that substance was ( Ru Marriott ( 1971 ] ) . Almost all strict liability offences are created by statute . The courts have been reluctant to develop such offences at common law ( blasphemous libel being one of the few examples ) and
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Recklessness A person is reckless where they take an unjustified risk of committing the offence . Whether or not a risk is justified is decided by an objective test le would a reasonable person regard the risk as unjustified IR u Lawrence ( 1982 ) ; R v . Sangha ( 1988 ] ) . Therefore , the defendant cannot avoid liability by arguing that in their subjective opinion the risk was justified . However , the defendant's subjective perception is relevant in deciding whether criminal Kability will flow from taking that risk . This again emphasises the importance of fault and responsibility . The law has developed two different tests for recklessness Subjective ( or Cunningham ) recklessness . Under R u Cunningham ( 1957 ) , a person is reckless where : • he is subjectively aware of the risk ; and • he nevertheless goes on to take that risk and • the taking of the risk is objectively unjustified in the circumstances .
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Objective ( or Coldwell ) recklessness . Under R v . Coldwell ( 1981 ) , a person is reckless where : • the risk is a serious one , and either • he is subjectively aware of the risk and nevertheless goes on to take it ( essentially subjective recklessness ) ; or • he gives no thought to the possibility of the risk and the risk was an obvious one , and • the taking of the risk is objectively unjustified in the circumstances . While the objective test was at one point extended to include liability for manslaughter , concerns were frequently expressed regarding the undesirability of the second , objective limb of the test . Following R. v . Adomako ( 1994 ) , the objective test was once again limited to the offence of criminal damage ( for which it was first introduced ) . For all other offences ( except those which can only be committed intentionally ) , the subjective test applies . The Relationship between the actus reus and mens rea Here we must consider the requirement of coincidence . For liability to arise , the defendant must have committed the actus reus while , at the same time , having formed the required mens med , ie the criminal act and criminal state of mind must coincide . However , the courts have allowed a degree of flexibility in satisfying this requirement
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The mens rea The mens red is the mental element of a crime . For most crimes , it is not sufficient to prove only that the defendant committed the unlawful act It must also be shown they had a particular state of mind . The need to show a criminal state of mind emphasises the subjective nature of criminal liability and highlights the central role of fault . While the precise morum required varies from one offence to another , it will usually incorporate one of four general states of mind intention recklessness negligence and blameless inadvertence . Negligence and blameless inadvertence rarely give rise to criminal Biability , and will be examined in the discussion of strict liability below . Therefore , discussion here will concentrate on intention and recklessness Intention The issue here is whether or not the defendant Intended to bring about the unlawful consequence . The test for intention is • a person must be held to intend a consequence where it is their purpose in acting to bring that consequence about ( direct intent ) : • 4 person may be held to intend a consequence where • it was virtually certain to result from their actions and • they knew it was virtually certain to result oblique intent ) .
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( R v . Moloney ( 1985 ) ; R. v . Hancock and Shankland ( 1986 ) : R. v . Nedrick ( 1986 ) ; R u Woollin ( 1998 ) That there is discretion to infer intent in the latter circumstances is confirmed by the Criminal Justice Act 1967 , section 8 . It is also important to distinguish between intention / purpose and motivo / desire . A person may intend a particular consequence without either desiring it or it being the motive for their actions . leg . " mercy killings " , where a person gives an overdose of medication to a terminally - ill relative . Here , while they do not desire the death of their loved one , and their motive is to relieve suffering , they nevertheless intend to kill ) . Proof of intention is always a sufficient condition of criminal liability . For some offences , such as murder , it is also a necessary condition - ie only proof of intention is sufficient to give rise to liability
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the prosecution must establish a clear and unbroken causal link between them , Le must prove the defendant's conduct caused the unlawful consequence . This is approached in two stages . Cause In fact . The conduct must be a sine qua non of the consequence . This is established by applying a but for test , showing that without the defendant's conduct , the unlawful consequence would not have occurred . If the consequence would have occurred in any event , then it cannot be said to be the defendant's fault . This applics even where the defendant's conduct was intended , unsuccessfully , to cause the consequence ( R u . White ( 1910 ] ) . Cause in law . Not every act that is a sine qua non of the consequence will attract criminal liability . In some circumstances , the conduct will be too remote from the consequence , while In others the actions of a third party ( a notus actus intereniens ) will intervene and break the chain of causation . Thus , it is not sufficient to show that the defendant's conduct was a factual cause of the unlawful consequence . It must also be a legal cause . The first point to note here is that the defendant's conduct need not be the sole or even the main cause of the unlawful consequence ( R. u . Pagett ( 1983 ] ) . It is sufficient that it made a contribution . This raises the question as to what degree of contribution is required . In R. Cheshire ( 1991 ) , it was stated that the defendant's conduct must have made a significant contribution to bringing about the unlawful consequence . The existence of a second cause will only break the causal link where its effect is so potent that it makes the defendant's contribution negligible .
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There are two further aspects of causation : • The defendant must take his victim as he finds him — the defendant cannot rely on some unusual characteristic of the victim in order to avoid liabüity for the con sequences of his conduct . This applies to both physical and psychological characteris tics ( R. Blaue ( 1975 ) . • The defendant will be held to have caused all the reasonably foreseeable consequences of his conduct leg where a person is threatened with an assault by the defendant and , seeking to escape , is injured , the defendant will be held to have caused those injuries provided the victim's attempt to escape was reasonably foreseeable ) ( R Pagelt ( 1983 ) ; R. v . Williams ( 1992 ] ) . However , this only shows that the defendant caused the consequence , not that he intended it Intention is a state of mind and therefore , is part of the mental element of the crime , not the physical .
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who engage in anti - social conduct should be held responsible for their actions and punished . In order to be deserving of punishment , a person must have acted in a blameworthy manner , le have been at fault in acting as they did . Though not a universal requirement , this notion of fault is a very important aspect of most criminal offences , and helps to explain the basis of many of the defences to criminal liability . It is sensible , therefore , to keep this idea of fault or individual responsibility in mind throughout the following discussion of the criminal law . The idea of fault is present in the principal maxim of the criminal law : actus non facit reum nisi mens sit rea ( the act is not guilty unless the mind is also guilty ) . However , this must be treated cautiously . As implied above , mens rea is not required for all offences . Furthermore , the idea of a " guilty mind " can be misleading - a person can have the required mens re without being morally guilty , and vice versa . Nevertheless , most criminal offences contain both these elements and this means that for most crimes the prosecution must prove beyond a reasonable doubt that the defendant committed the actus reus of the crime , while at the same time having the required mens rea .
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The actus reus The actus rous is the physical element of a crime . It can include conduct , circumstance and consequence . For example , the actus reus of murder contains all three an unlawful act ( conduct ) , under the Queen's Peace ( circumstance ) , which causes the death of another human being ( consequence ) . By contrast , the actus reus of rape contains only two sexual intercourse ( conduct ) , without the person's consent ( circumstance ) . Thus , some offences , such as rape , are termed conduct crimes , while others , such as murder , are termed consequence or result crimes Generally , the actus reus must be a voluntary positive act . An act is voluntary if it consciously willed and deliberate . However , there are limited circumstances where an orussion ( rather than an act ) will give rise to liability . The general position is that omissions do not attract criminal liability . For example , if a watches B ( a complete stranger ) drown and does nothing to save him . A has committed no crime . In these circumstances , A's omission is a pure omission . However , where a person has accepted a duty to act and then fails to do so , then criminal liability may arise the omission is no longer pure . This applies to both contractual ( R. v . Pitwood ( 1902 ] ) and tortious duties ( R v . Stone and Dobinson ( 1977 ) . Legislation may also impose liability for omissions leg . failing to report a road traffic accident ) . Causation An aspect of the actus reus that can cause problems is the requirement of causation . Where the actus reus consists of both conduct and consequence , ( ie it is a consequence or result crime ) .