Criminal Revision Notes PDF

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Criminal Revision notes including Offences Against the Person, Property Offences Homicide, Non-fatal offences and defences...

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Criminal Revision Notes Problem Questions: Homicide - Murder Actus Reus – When a man of sound memory and of the age of discretion, unlawfully killeth, within any county of the realm, any reasonable creature in rerum natura, under the Queen’s peace. Mens Rea – With malice aforethought. (Specific intent crime) – Sir Edward Coke Sound memory – The killer must not suffer from any mental incapacity which would form the basis of a legally recognised excuse (defence) Age of discretion – The killer must be of sufficient age to be held legally responsible for this behaviour Unlawfully killeth – Must not be justified or excused by the law (e.g. self-defence is a lawful justification) Within any country of the realm – Law reform – Year and a Day Rule Act 1996 – S1 abolished the year and a day rule. This is because if the victim died more than a year and a day following D’s actions, D would escape criminal liability. D could be liable for a non-fatal offence, but this would not reflect the gravity of what had occurred. -

Proceedings must be instituted by or with the consent of the AG where the causal injury was inflicted more than 3 years before death or where D has previously been convicted of an offence related to the circumstances connected with the death

Any reasonable creature in rerum natura – 1. The victim must have ‘become’ a human being - A-G’s Reference (No 3 of 1994) [1997] – D stabbed pregnant victim, the baby was born prematurely and died 121 days later due to being premature. D was not convicted of murder or manslaughter of the baby as the foetus was not classed as a human being when the mother was stabbed, and the malice could not be transferred. 2. The Victim must not have already died - Airedale NHS Trust v Bland 1993 – The victim was in a vegetative state with no hope of recovery, the hospital applied for a declaration to end life-support. This was granted on the basis that there was no duty to treat if the treatment wasn’t in the best interests of the patient, in which this case, was not. Under the Queen’s Peace – Not the ‘enemy’ except in the heat of war – concerned with the status of the victim and whether they are under the Queen’s peace.

Mens Rea – With malice aforethought Maloney - An intention to kill or cause GBH Hancock, Nedrick Woollin – Virtual certainty

Manslaughter – Maximum sentence is life imprisonment The Mens Rea element of manslaughter is the differentiation between murder and manslaughter Two categories: 1. Voluntary manslaughter – Murder + a sufficient mitigating factor (partial defence) Voluntary Manslaughter – D cannot be charged with voluntary manslaughter, have to establish murder and then successfully plead a partial defence to reduce the crime. D unlawfully kills the victim with the MR required for murder but if a partial defence applies, this reduces the crime from murder to manslaughter -

Manslaughter by reason of loss of control Manslaughter by reason of diminished responsibility

Loss of Control S54-56 Coroners and Justice Act 2009 (in force 2010) -

Abolished the partial defence of provocation

S54(1) – Where a person kills or is a party to the killing of another, D is not to be convicted of murder if: a. D’s acts and omissions in doing or being a party to the killing resulted from D’s loss of self-control b. The loss of control had a qualifying trigger c. A person of D’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or similar way. Loss of self-control – R v Jewell 2014 – The loss of ability to act in accordance with considered judgement or a loss of normal powers of reasoning. Qualifying trigger: S55 (2) A loss of self-control had a qualifying trigger if subsection (3), (4) or (5) applies –

(3) if D's loss of self-control was attributable to D's fear of serious violence from V against D or another identified person.

R v Dawes 2013 – Must be disregarded if D incited or encouraged a violent situation. –

(4) if D's loss of self-control was attributable to a thing or things done or said (or both) which 

(a)constituted circumstances of an extremely grave character, and



(b)caused D to have a justifiable sense of being seriously wronged.

R v Clinton 2012 – Sexual infidelity cannot be argued as a qualifying trigger on its own but if there are other elements relied on when claiming loss of control, sexual infidelity may be considered. Clinton, Parker & Evans 2012 (Paragraphs 1-32)

Diminished Responsibility Homicide Act 1957 – Introduced this defence S2 - Where a person kills or is party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing...” Coroners and Justice Act 2009 amends S2 of the Homicide Act to express the law in more acceptable language S52 (1) In section 2 of the Homicide Act 1957 (c. 11) (persons suffering from diminished responsibility), for subsection (1) substitute –

“(1) A person (“D”) who kills or is a party to the killing of another is not to be convicted of murder if D was suffering from an abnormality of mental functioning which 

(a) arose from a recognised medical condition,



(b) substantially impaired D's ability to do one or more of the things mentioned in subsection (1A), and



(c) provides an explanation for D's acts and omissions in doing or being a party to the killing.

(1A) Those things are –

(a) to understand the nature of D's conduct;

–

(b) to form a rational judgment;

–

(c) to exercise self-control

(1B) For the purposes of subsection (1)(c), an abnormality of mental functioning provides an explanation for D's conduct if it causes, or is a significant contributory factor in causing, D to carry out that conduct.” NB. D has legal burden of proof S2 (2) Homicide Act 1957 Abnormality of mental functioning – R v Byrne 1960 – Abnormality of mind means a state of mind so different from that of an ordinary person that the reasonable person would term it abnormal. Recognised medical condition – as recognised by the World Health Organisation R v Dowds 2012 – Although the presence of a recognised medical condition is necessary, it is not always sufficient to raise diminished responsibility.

2. Involuntary Manslaughter - AR of murder + MR less than malice aforethought -

Unlawful and dangerous act manslaughter Gross negligence manslaughter Manslaughter by subjective recklessness

Unlawful and dangerous act 1. An unlawful act intentionally performed The act must be a crime: R v Lamb 1967 - Two boys were playing with a gun, they both didn’t believe the gun would be fired but when D pointed and fired the gun at V, it went off shooting and killing V. There was no unlawful act as no assault had been committed, V did not apprehend immediate and unlawful violence The base crime must be proved in full. R v Arobieke 1988 – D went looking for V at a train station, V was trying to get away from D and was electrocuted trying to cross the tracks. There was no evidence that D issued any threats for V to fear violence so therefore it was held that an assault had not been committed. The base crime must be one of Mens Rea Church 1966 – After being sexually mocked, D knocked V unconscious and as he couldn’t wake her, believed she was dead. He then took her body and put her in a river. She drowned and died The act need not be directed at the victim: R v Goodfellow 1986 – D was being harassed and wanted to move from his council accommodation, and to get re-housed he set fire to it but his wife, son and son’s girlfriend all died in the fire. Although the act of setting the fire was not directed at the victims, the conviction of UDAM was upheld. 2. In circumstances rendering it dangerous Church 1966 – The unlawful act must be such as all sober and reasonable people would inevitably recognise must subject the other person to, at least, the risk of some harm resulting therefrom, albeit not serious harm – Edmund-Davies Newbury v DPP 1977 – The test is purely objective – the test is not, ‘did the accused recognise that it was dangerous’, but would all sober and reasonable people recognise its danger? R v Dawson 1985 – A 60-year-old petrol station attendant suffered with a heart condition and died of a heart attack following a robbery. The conviction of manslaughter was quashed as the D’s did not know of V’s heart condition, the jury were made aware of the heart condition whereas a reasonable person wouldn’t have known. The risk of physical harm, e.g. a heart attack, from shock emanating from fright could be reasonably foreseeable. R v Watson 1989 – D’s knowledge of V’s age and frailty could be attributed to the reasonable person.

3. Causing death There must not be a break in the chain of causation. The unlawful and dangerous act must be more than negligible – Lord Woolf

Gross Negligence Manslaughter

MR for negligence Adomako 1995 – D was an anaesthetist. During an operation, he failed to notice a disconnected tube for 7 minutes and the patient died. D was convicted of GNM. Established the test for GNM: -

D was in breach of a duty of care towards the victim The breach of this duty caused the victim’s death The breach of this duty amounted to gross negligence

Duty of care: R v Evans 2009 – D’s were half-sister and mother of V whom they provided heroin. D’s knew v’s symptoms of an overdose were very serious, but they did not seek medical help as they thought they would get into trouble, V was found dead the next day. GNM – There was a familial duty of care and a duty to act upon the realisation that the heroin supplied was having potentially fatal effects on V. Caused the death: Any break in the chain? Gross Negligence: R v Misra 2004 – The risk had to be of death, not merely bodily harm, so as to be grossly negligent by taking a risk on someone’s life Reviewed in subsequent case of R v Misra & Srivastava 2004 – D’s were doctors who sought to challenge the test from Adomako. The Defendant’s argued that these guidelines were in breach of Article 6 and & of the ECHR and deprived them of a right to a fair trial. It was held that the Adomako test did not infringe convention rights and the conviction for GNM was upheld. Most recent decision on GNM – R v Honey-Rose 2017 – D was an optometrist who failed to spot abnormalities in a child’s eye test who later died. 5 elements were said to be needed for GNM: (1) D owed an exisitng duty of care to V (2) D negligently breached that duty of care (3) It was reasonably foreseeable that D’s breach of duty of care gave rise to a serious and obvious risk of death; (4) D’s breach of duty caused the death of V (5) The circumstances of the breach must be truly exceptionally bad and so reprehensible as to justify the conclusion that it amounted to gross negligence and required criminal sanction The conviction was then quashed.

Reform of the Homicide Offences

Calls for reform relating to Homicide have been made for over 30 years. Latest report – November 2006 – Law Commission Report No. 304 ‘Murder, mansualghter and Infanticide’ – Suggestion to introduce a three-tier ladder of offences to reflect different degrees of culpability. There would be two degrees of murder: -

-

First degree murder – An intention to kill or an intention to cause serious injury with an awareness of risk of death Second degree murder – When D intends serious injury, where D intends to cause injury or fear of risk of injury with awareness that the act may cause death. Partial defences to be revised, reducing first degree murder to second degree. Voluntary manslaughter to be incorporated within second degree murder where D successfully pleads diminished responsibility. Involuntary manslaughter – Two type: 1. By Gross negligence to the risk of death – Gross negligence must be to the risk of death as in Adomako, and there will no longer be any room for reckless manslaughter 2. By Criminal act – a person causes the death of another intending to cause injury or being reckless as to whether some injury was caused, where the conduct causing or intended to cause, the injury constituted an offence. It will now be necessary to show that at least the person committing the offence knew there was a risk of harm.

In 2011, these reforms were rejected by the Government.

Non-Fatal Offences Common Assault – Assault and Battery (Basic Intent crimes) Found under S39 Coroners and Justice Act 1988 Collins v Wilcock 1984 – Most appropriate in defining assault and battery An assault is an act which causes another person to apprehend the infiliction of immediate unlawful force and a battery is the actual infliction of this unlawful force on another person. – Lord Goff Assault and battery can both occur at the same event, i.e. someone coming menacingly towards you with a raised fist and then actually hitting you. DPP v Little 1992 – Assault and battery must be charged as two separate offences Assault only requires apprehension, it does not require fear of something that is going to happen. Assault – An act which causes another person to apprehend the infliction of immediate unlawful force on his person. Actus Reus An act: R v Santana-Bermudez 2004 – Requires an act but the normal rules on omission apply - Police search, D had a needle in his pocket which he failed to inform the officer that he had, causing injury. R v Meade and Belt 1823 – No words or singing were equivalent to an assault. Compare with… R v Ireland 1997 – Silent phone calls could amount to an assault

Apprehend: Tuberville v Savage 1669 – D put his hand on his sword and said, ‘If it were not assize-time, I would not take such language from you’. The judges were in town for court sessions. It was held that this did not amount to an assault as the words negated the assault. Logdon v DPP 1976 – D pointed a toy gun at V which caused her to apprehend immediate and unlawful violence. D was convicted as he was reckless as to whether she would apprehend such violence. Immediate: Smith v Superintendent of Woking Police Station 1983 – D was looking through the window of V’s home, there was no immediate threat of him entering the building, but the conviction was still upheld. Constanza 1997 – Immediate infliction of harm was remote as the threats included written letters, driving past V’s house and stealing items from V’s washing line but D was still convicted as words could amount to assault. Battery The actual infliction of unlawful force on another person Force: Thomas 1985 – Merely touching someone’s clothes is equivalent to touching the person. Savage 1990 – Pouring beer over someone’s head is the application of unlawful force. Infliction: Can be direct or indirect DPP v K 1990 – D put acid in a hand dryer (indirect) Haystead v CC of Derbyshire 2000 – D punched a woman who was holding a baby and she dropped the baby. The violence doesn’t need to be direct towards the actual victim, which was the baby in this case. Fagan v Metropolitan Police Commissioner 1969 – D drove his car over a policeman’s foot and refused to move the car after the policeman spoke to him using harsh terms. D omitted to remove his vehicle from the V’s foot – battery can be caused through omission. Assault and battery- Mens Rea (Basic intent offence) Separateness but MR ‘inextricably confused’ in leading cases Venna 1976 – intention or recklessness The Caldwell (1992) issue -

DPP v K 1990 – Upheld Caldwell recklessness Spratt 1991 (Followed in Parmenter 1992) – overruled the above case and referred back to Cunningham recklessness G 2003

Assault Occasioning Actual Bodily Harm (Basic Intent Crime)

S47 OAPA 1861 – Whosoever shall be convicted upon indictment of any assault occasion ABH shall be liable to be imprisoned for any term not exceeding 5 years. Actus Reus – Assault or battery occasioning ABH R v Courtie 1984 – A sentence must correspond with the penalty for the offence Occasioning – No fault element as long as the harm flows naturally from the assault or battery Roberts 1971 – Causation not MR – Escape case – V jumped out of a moving car in fear of being assaulted. The normal rules on causation apply. Savage 1991 – HOL upholds Roberts – possible to be liable without having the MR to cause harm Bodily harm – R v Miller 1954 – Any hurt or injury calculated to interfere with the health or comfort of the victim. DPP v Smith 2006 – Extended Miller - Cutting off V’s pony tail did amount to ABH as the bodily harm goes beyond a break in the skin and includes all parts of the body. Chan-Fook 1994 – Harm can go beyond physical. The body of the victim includes all parts of the body, including his organs, nervous system and brain and therefore extends to psychiatric injury. The injury should not be so trivial so as to be wholly insignificant. R v Ireland 1997 – Making numerous silent phone calls to the V amounted to psychological harm as she suffered from anxiety and other recognised medical conditions even though no physical harm was occasioned. T v DPP 2003 – A temporary loss of consciousness, but the harm must be more than transient and trifling. Mens Rea – Basic intent crime (intention or reckless) Must be that of assault or battery No separate fault element re occasioning ABH R v Savage 1991 – D threw contents of a beer glass over V, but the glass slipped out of her hand and V sustained cuts from the glass. D didn’t actually intend a S47, just a battery. It was held that it didn’t have to be proved that D intended to cause the harm, intending an assault or battery was enough. A clear breach of the correspondence principle – The prohibited act and the necessary state of mind have to coincide.

S20 – Wounding and GBH – Basic intent crime

Whosoever shall unlawfully and maliciously wound or inflict any GBH upon another, either with or without any weapon or instrument, shall be guilty of an offence triable either way and being convicted thereof shall be liable to imprisonment for 5 years. S20 creates two separate offences: 1. Unlawful and malicious wounding Actus Reus – D must have wounded, this requires: Wood 1830 – a break in continuity of the skin Morris 2005 – More than a break in the surface, a mere scratch will not suffice. Superficial cuts will only amount to ABH. Mens Rea – Malice Cunningham – Intentionally or recklessly Mowatt 1968 – Confirmed that ‘malicious’ meant intentionally or recklessly It is quite unnecessary that the accused should have foreseen that his unlawful act might cause physical harm of the gravity described, i.e. a wound or serious physical injury. It is enough that he should have foreseen that some physical harm to some person, albeit or a minor character, might result. 2. Unlawful and malicious infliction of GBH Actus Reus – D Must have inflicted GBH GBH has never been defined with any precision -

Ordinary and natural meaning – DPP v Smith 1961 – Lord Kilmuir – GBH to be given its natural meaning – grievous means really serious Serious psychiatric injury – Ireland 1997 Sexual offences – Dica 2004 – infecting a sexual partner is a consensual sexual act – HIV. Must be assessed objectively – Brown 1998

Inflict -

-

Does this imply an assault? Can S20 GBH be committed where no physical violence is applied directly or indirectly to the body of the victim? – Clarence 1888 – Wrongly decided on the meaning of ‘inflict’ Wilson 1984 – Inflict does not imply an assault Burstow 1997 – The relationship between s18 and s20 – Lord Hope stated that there is no practical difference between cause and inflict.

Mens Rea – Malice

S18 – Wounding and GBH with int...