Compact Revision Notes

CRIMINAL LAW REVISION

BASIC PRINCIPLES

To be guilty of a crime, Defendant must be found to have:

Actus Reus (external element) – brought about prohibited situation

Mens Rea (fault element) – with a prescribed state of mind

EXCEPT in Strict liability offences where only the Actus Reus need be found.

The burden of proof is always on the prosecution

The standard of proof is that the jury must be ‘satisfied’ beyond all reasonable doubt.

Reasonable doubt ‘is one for which you could give reasons if asked’

VOLUNTARY ACT

Liability will only accrue where the conduct which provides the Actus Reus is willed.

Non-insane automatism ‘an act done by a person who is not conscious of what he is doing’ defined by Batty case (below)

Bratty v AG for Northern Ireland (1963): Lord Denning stated that the ‘requirement that it should be a voluntary act is essential … in every criminal case’

This is the same for strict liability offences.

Exception:

Kay v Butterworth (1945): D was driving home after a night shift when, overcome by sleep, he drove into a group of soldiers. He was convicted of driving without due care and attention and dangerous driving as he should have stopped driving when he realised that he was becoming drowsy.

Court distinguishes between internal and external factors:

Internal factor doing a physical act while in a state of unconsciousness, e.g. sleepwalking

R v Burgess (1991): On a count of wounding with intent to do grievous bodily harm, D said that the violence was committed whilst he was sleepwalking and suffering from automatism. Held: D’s state was an abnormality which was due to an internal disorder manifesting itself in violence so automatism present.

External factor where A is carving the Sunday joint when B seizes his hand holding the knife and thrusts it into C killing him

R v T (1990): T, R and B were charged with robbery; T was also charged with actual bodily harm. T was alleged to have stabbed one of the victims during the robbery, to have demanded a handbag from another and to have decamped with R and B with that handbag. T alleged that she had been raped three days before the incident. There was medical evidence to support T’s allegation and a psychiatrist diagnosed post- traumatic stress disorder causing T to be in a dissociative state such that she had not been acting with a conscious mind or will. Held, that rape could be an “external factor” causing a “malfunctioning of the mind”.

STATE OF AFFAIRS OFFENCES

While most offences require voluntary conduct on the part of the accused to establish their Actus Reus, there are some offences which prohibit the existence of a state of affairs.

R v Larsonneur (1933): The appellant who was a French subject, landed in the UK on 14.03.33 with a French passport, which was endorsed with conditions prohibiting her employment in the UK. On 22.03.33 these conditions were varied by a condition requiring her to leave the UK on that date. She went to Ireland, who immediately made an order for her to deported. On 23.04.33 she was deported from Ireland to Holyhead by the Irish policy who handed her over to the police in the UK. She was convicted of ‘being an alien to whom leave to land in the UK had been refused was found in the UK’. She was convicted even though it was not her fault she ended up back in the UK.

Also

Winzar v Chief Constable of Kent (1938): W had been found drunk in a hospital and was asked to leave. When he failed to do so, police officers were called who placed him in their patrol car, whereupon the drove him to the road outside the hospital grounds and charged him with being drunk on the highway. The conviction was upheld even though W did not decide to go on the highway.

So, voluntary act not always necessary.

OMISSIONS

Definition: a failure on the accused’s part to take action.

General rule: no liability for omissions unless the act comes within a statutory or common law exception, e.g. failure to provide a police officer with a specimen of breath (s6 Road Traffic Act 1988).

Exceptions:

Duty arising from a special relationship

R v Downes (1875): a parent declined to summon medical help to his very sick child on religious grounds and the child subsequently died. The parent was convicted of manslaughter.

Duty arising from the assumption of care for another

R v Stone; R v Dobinson (1977): Stone’s younger sister (Fanny) came to stay with him and his wife (Dobinson). Fanny suffered from anorexia and would often stay in her room for days on end starving herself. Fanny seemed to be deteriorating so S and D tried to locate a doctor. They were unsuccessful. (Stone was of ‘low average intelligence’ and Dobinson was described as ‘ineffectual and somewhat inadequate’). Fanny died and S and D were convicted of manslaughter because if you assume the care of another you are legally obliged to keep them from harm which in this case would have been to summon help or else to care for Fanny themselves.

Duty of avert danger of one’s own making

R v Miller (1983): A vagrant who lived in an unoccupied house woke to find that a cigarette had had been smoking had set fire to the mattress he was sleeping on. He did not attempt to distinguish the fire but moved to another room. The house caught fire and the defendant was convicted of arson.

Duty under contract

R v Pittwood (1902): A railway-crossing keeper negligently left the crossing gates open as a result of which the driver of a hay cart was killed by a train. He was convicted of manslaughter.

Duty under public office

R v Dytham (1979): A police officer omitted to intervene in an attack by a nightclub bouncer on a member of public because he was ‘off duty’. He was convicted because it was his public duty to preserve the peace and protect the victim.

Problems with omissions / reform

• It is often difficult to distinguish between an act and an omission. E.g. if a doctor withdraws lifesaving medication from a newly-born and profoundly handicapped baby who then dies, is this an act on the doctor’s part or an omission?

• A general duty to act might impose liability on a large number of people and over-extend the frontiers of criminality. For example, if a large crowd of spectators at a football match observe a fight taking place and fail to take any action to stop it are they all to be guilty of an offence?

• A general duty to act might cause people to over-interfere in their neighbour’s business. For example, if you passed a neighbour’s house and heard young children crying and in distress (a not uncommon occurrence!) should you notify the police? If you fail to do so and a child subsequently suffers injury at the hands of the neighbour ought you to be a party to his/her crime?

CAUSATION

The relationship between an act and the consequence it produces. It is one of the element that must be proved before an accused can be convicted of a crime in which the effect of the act is part of the definition of the crime. Both factual and legal causation must be established.

Factual causation also knows as the ‘but for’ test i.e. would the victim have died had it not been for the accident? If the answer is no, then factual causation has been established. If the answer is yes, causation has not been found.

R v White (1910): D put cyanide into his mother’s drink with intent to kill her. Later, his mother was found dead with the glass containing the poisoned drink beside her three parts full. Medical evidence established that she had died of heart failure not from poisoning. D was acquitted of murder as he had not caused her death and thus there was no Actus Reus. (He was convicted of attempted murder).

Legal causation – Not all ‘but for’ causes are legal causes of an event. The accused’s actions must be a significant factor in the cause of the event.

The following factors must be considered when attempting to establish legal causation:

De Minimis – the culpable act must be more than a minimal cause of the consequence. The law does not take account of trifles.

R v Hennigan (1973): H argued that he was not guilty of causing death by dangerous driving because another driver in the accident was more to blame than him. Held: As long as the defendant’s contribution was substantial he could be accountable. Without attempting to lay down any precise limits, the courts suggested that even if the defendant were 20% responsible that would be sufficient.

Thin Skull rule – you must take your victim as you find him.

R v Blaue (1975): A girl was stabbed and as a result needed a blood transfusion. The girl was a Jehovah’s Witness and could not accept a blood transfusion as part of her religious beliefs. She died. The defendant argued that he was therefore not the cause of the death but it was held that the defendant was liable as (i) but for the attack she wouldn’t have died and (ii) he must take the victim as her finds her.

However

R v Roberts (1971): Here the victim was injured when she jumped out of a moving car because she thought she was being attacked. Held: if it was a fair and reasonable action for the victim to take, then the defendant is liable for the injuries. Did break the chain – not a reasonable action.

R v Williams (1992): Here two defendants were bank robbers. The victim was a hitchhiker in their car, and was killed jumping out of the car to escape. The evidence is that the victim was threatened unless he gave W petrol money. In this case, it was not held that the defendants had caused the death of the victim, as the action of the victim was so out of proportion to the threat faced.

R v Dear (1996): D appealed against conviction for murder for which he was sentenced to life imprisonment. D attacked the victim, a drinking companion, after being told he had sexually interfered with D’s 12 year old daughter. The victim was slashed with a Stanley knife and died two days later as a result of the wounds inflicted. D claimed that the chain of causation had been broken, because of the victim’s behaviour in committing suicide by reopening the wounds or by failing to take steps to staunch the flow of blood following the reopening of the wounds. The victim was found by the occupier of the flat at which he was staying shortly after the attack, but he refused offers of assistance and was adamant that an ambulance should not be called. Medical evidence was given that the victim would have survived the attack had the injuries been properly treated. A note found by the victim’s body was referred to by police as a suicide note. The grounds of appeal were that: (1) the judge should not have left the case for the jury’s consideration because there was insufficient evidence for them to consider; (2) the judge erred in not allowing the jury to consider the offence of extraordinary neglect; (3) the chain of causation was broken by the victim; (4) the judge misdirected the jury in relation to their questions about breaking the chain of causation and (5) the suicide of the victim was a novus actus interveniens. Held: the jury was entitled to find that D’s conduct was an operating and significant cause of death and was directed accordingly.

Novus Actus Interveniens – an act or event which breaks the chain of causation between a wrong or crime committed by the defendant and subsequent happenings and therefore relieves the defendant from responsibility for these happenings.

• Actions of third parties

R v Pagett (1983): D fired a shotgun at police officers attempting to arrest him while holding V against her will and using her body as a shield. The officers returned fire and killed V. D was convicted of manslaughter and his conviction was upheld by the Court of Appeal. The same principle would apply if the police had returned fire hitting a bystander.

However

Environment Agency v Empress Car Co (1992): D Co had on its land a diesel tank which had an outlet pipe connected to it which led to a drum. The outlet pipe was controlled by a tap which was not locked. An unknown person opened the tap resulting in the contents of the tank draining into the drum, overflowing and polluting a river. D Co was charged with causing polluting matter to enter controlled waters contrary to the Water Resources Act 1991. D Co denied causing pollution but was convicted and the House of Lords upheld the conviction. Incredibly the leading judgment by Lord Hoffmann drew no distinction between deliberate acts of third parties and interventions of nature.

• Refusal of medical treatment

R v Holland (1841): D cut V severely on the finger. The wound became infected and V ignored medical advice that he should have the finger amputated or his life might be endangered. The wound caused lockjaw and V died. Maule J directed the jury that it made no difference whether the wound was instantly mortal, or whether it became so by reason of the deceased not having adopted the best mode of treatment as ‘the real question is, whether in the end the wound inflicted by the prisoner was the cause of death’. The jury convicted D or murder.

NB: Medical science has advanced greatly since this case and a refusal of treatment today in such a case might be regarded as unreasonable. However the reasonableness of the victim’s conduct however is not a relevant issue when considering causation.

• Poor/delayed medical treatment

R v Cheshire (1991): On a charge of murder, where the victim had died following negligent medical treatment received for his injuries, the jury had to decide whether they were satisfied that the accused’s acts made a significant contribution to the victim’s death. C shot the deceased in the leg and stomach, seriously wounding him. The deceased was taken to hospital and placed in intensive care. He developed respiratory problems and a tracheotomy tube was placed in his windpipe to assist his breathing. More than two months after the shooting, he died of cardio-respiratory arrest due to obstruction of the windpipe due to the tracheotomy. C was charged with murder. A consultant surgeon gave evidence for the defence at the trial that the leg and stomach wounds were no longer life-threatening at the time of actual death and that death had been caused by negligent medical treatment. The judge directed the jury that C was responsible for the death unless the medical staff had been reckless in their treatment of the deceased. He was convicted and appealed. Held: medical treatment will only break the chain if the medical treatment was so independent of the acts of the defendant, and itself so potent in causing death, that they could regard the actions of the defendant as insignificant in the cause of death.

R v Jordan (1956): D stabbed V who was taken to hospital and the wound was stitched. Eight days later V died. D was convicted of murder. On appeal fresh evidence was called which disclosed that at the time of death the wound was healed but D had died as a result of 1) a Terramycin injection and 2) the intravenous introduction of large quantities of liquid which had caused V’s lungs to become waterlogged. The treatment was described as ‘palpably wrong’ and the Court of Appeal quashed the conviction as, if the jury had heard this evidence, they would have felt precluded from saying that they were satisfied that death was caused by the stab wound.

However

R v Smith (1959): D, a soldier, stabbed V twice with a bayonet in a barrack room fight. Another soldier carrying V to the medical reception station twice dropped him. The medical staff were under pressure as others had been injured in the fight. They had not realised that one of V’s wounds had pierced a lung and caused a haemorrhage and gave V treatment which, in light of this information, was described at D’s trial as ‘thoroughly bad and might well have affected his chances of recovery’. V died and D was convicted of murder. On appeal D’s counsel sought to argue that the treatment he received was abnormal and that if the treatment impeded the chance of V recovering, the death did not result from the wound. The appeal was dismissed. Lord Parker CJ said “only if the second cause is so overwhelming as to make the original wound merely part of the history can it be said that the death does not flow from the wound”. No break in the chain.

MENS REA

Need to learn 2 types: Intention (direct and oblique) and Recklessness (subjective and objective). Must be distinguished from Motive.

Motive: the purpose behind a course of action. Not normally relevant in deciding guilt or innocence. Mens Rea for murder known as malice aforethought.

INTENTION

The state of mind of one who aims to bring about a particular consequence.

Direct Intention where a consequence is wanted for its own sake.

Oblique Intention where a consequence is foreseen but not wanted.

The question remains – how much foresight of a consequence is required for intention to be found? In trying to achieve this clarity over the years, Judges have encountered serious problems.

R v Hyam (1974): the Judge decided it needed to be a “probable or highly probable” consequence.

R v Maloney (1985): M killed his stepfather with a shotgun in circumstances which he alleged were “just a lark.” He and the victim had been drinking heavily. His case was that he had no idea firing the gun would injure his stepfather. He was convicted of murder. It was held that, if exceptionally a case calls for directions as to foresight of consequences the judge need do no more than pose two questions:

• Was death or really serious injury a natural consequence of the acts of the accused?

• Did he foresee that consequence as being a natural consequence of his act?

If both questions are answered in the affirmative then the jury may properly infer that the accused intended that consequence.

R v Hancock & Shankland (1986): H was angry with a colleague who refused to take part in a strike that had been organised. He pushed a boulder from a bridge onto a road that he knew the colleague was approaching in an attempt to ‘frighten’ them. His colleague died and he was convicted of murder. On appeal the Judge looked at the then leading case of Maloney but found that the phrase ‘natural consequence’ required amplification. He concluded that the issue in fact was whether the consequence (i.e. death) was the accused’s aim or purpose and whether the probability of the consequence in question happening was sufficient. This was a crucial omission because, as Lord Scarman put it,

“the greater the probability of a consequence the more likely it is that it was foreseen and, if it was foreseen, the greater the probability was that it was also intended”

R v Nedrick (1986): N had a grudge against a woman and with the intention of frightening her he poured paraffin through her letter box and set it alight. A child died. N admitted the arson but added he did not want anyone to die. The judge’s direction equated foresight with intention.

Lord Lane CJ stated that the jury was not entitled to infer (deduce) the necessary intention unless they felt sure that:

• Death or GBH was a virtual certainty of the accused’s actions.

• The accused foresaw that virtual certainty.

In other words, if the accused did not appreciate that death or serious harm was likely to result from his act, he did not intend to bring it about. If he did appreciate the risk but thought that it was only slight, then a jury might easily conclude that he did not intend to bring about the result.

R v Woollin (1997): the Court approved a direction which left it open to the jury to infer intention whether they were satisfied that D foresaw a substantial risk of serious harm to the victim, his three month old son, who he threw four or five feet across a room in the direction of his pram causing him a fractured skull from which he died.

The trial judges reformulated the Nedrick direction, swapping infer for find as follows:

“the jury should be directed that they are not entitled to find the necessary intention unless they feel sure that death or serious bodily harm had been a virtual certainty … as a result of D’s actions, and … appreciated that such was the case”

Until summer 2004, Nedrick (as amended by Woolllin) represented the law on intention but then came the decision of …

R v Matthews & Alleyne (2003): The CoA held that the direction laid down in Nedrick and the modified in Woollin was a rule of evidence and not a rule of law. In other words, the guidelines from those two cases are not a definition of intention. The court added that ‘there is little to choose between a rule of evidence and a rule of law’.

Thus, if the guidelines are satisfied, that does not automatically lead to a finding that the defendant had the necessary intention. It opens the way for the jury to find that the necessary intention was proved, but the jury ought to be left with the clear understanding that even if the guidelines are satisfied, they must not convict unless they are satisfied that the defendant had the necessary intention.

RECKLESSNESS

A form of mens rea that amounts to less than intention but more then negligence. In other words, a person who does not intend to cause a harmful result may take an unjustifiable risk of causing it.

Whether it is a justifiable risk depends on the social value of the activity involved relative to the probability and the gravity of the harm which might be caused by it.

The test for recklessness is subjective – i.e. requires proof that the defendant knew of the existence of the risk and deliberately took it regardless.

R v Cunningham (1957): A villain stole money from a gas meter by ripping the meter off the wall, thus letting gas fumes poison everyone.

It’s a subjective test because the defendant must have known that he was creating a risk.

R v Stephenson (1979): Defendant lit a fire inside a haystack causing severe damage. He was schizophrenic. Schizophrenia may have closed his mind to the risk, so found not guilty. Decided that 2 questions needed to be answered:

• Did the defendant see the possibility of the risk occurring?

• Was the risk unjustifiable?

Prior to October 2003 there was also an objective test for recklessness.

R v Caldwell (1982): The accused got drunk and set fire to a hotel in pursuit of a grievance he had against the owner. There were guests in the hotel at the time but the fire was discovered and extinguished before any serious damage was done. He claimed that he was so drunk at the time that the thought that he might be endangering life had never crossed his mind. He was convicted because drunkenness is not a defence to crimes of basic intent. Their Lordships took the opportunity to redefine recklessness. They stated that recklessness would be found if either:

• The defendant was aware of the existence of the risk; or

• In the case of an obvious risk, he failed to give any thought to the possibility of its existence.

There was a succession of cases that lead to the objective test being abolished and deemed unfair.

R v Lawrence (1982): D was a schizophrenic. When riding his motor-cycle, he ran into and killed a pedestrian. He was charged with causing death by reckless driving. The prosecution relied on evidence that D had been riding at between 60 and 80 mph in a 30 mph area. He was convicted but this is seen to be unfair because D was required to live up to the standard of the ‘reasonable man’.

Elliott v C (1983): C was a 14 year old girl with limited intelligence who had been out all night without sleep. She entered a garden shed where she found white spirit which she poured on to an old carpet and lit to keep warm. The fire spread and the shed was destroyed. Because of the Caldwell test, she was found guilty as the ‘reasonable man’ would have foreseen the risk.

R v Gemmell & Richards (2002): 2 kids set fire to some newspapers in the bid, but run away when they caught fire thinking that they would just burn out. In fact, they caused a million pound’s worth of damage. The Cunningham test was used here – the kids didn’t foresee the risk.

The Caldwell test for recklessness has therefore been abolished.

STRICT & ABSOLUTE LIABILITY

Absolute liability – the prosecution need not prove mens rea in relation to any element of the actus reus and it is possible that the general defences will not be available. It may also be unnecessary to prove that the actus reus was committed voluntarily.

Very few offences are of absolute liability. Examples include state of affairs cases (see Larsonneur [1933] and Winzar v Chief Constable of Kent [1983])

Strict liability – it must be proven that the actus reus was committed by the accused and that D’s conduct was voluntary.

R v Woodrow (1846): D accused of selling adulterated tobacco. It was sufficient that the tobacco was adulterated and he was selling it. His mistaken belief that the tobacco was pure was irrelevant, liability was ‘strict’.

Strict liability offences are almost invariably statutory (although there are a few common law strict liability offences).

They are most often relatively minor regulatory offences and it is estimated that of the approximate 8,000 statutory offences, around half involve strict liability.

Many statutes do not clearly state that an offence is one of strict liability, in these circumstances it is for the

courts to determine.

Often the definition of an offence uses a word or phrase which gives guidance to the court e.g. ‘knowingly’, ‘with intent to’, ‘recklessly’ etc. These show that the actus reus requires that mental element. However if such words or phrases are not used, it does not necessarily follow that the court will find mens rea is not required:

Traditional approach:

R v Prince (1875): The prisoner was convicted under 24 & 25 Vict. c. 100, s. 55, of unlawfully taking an unmarried girl under the age of sixteen out of the possession and against the will of her father. It was proved that the prisoner did take the girl, and that she was under sixteen; but that he bonâ fide believed and had reasonable ground for believing that she was over sixteen. Although she was only 14, she looked to be much older Held that the latter fact afforded no defence, and that the prisoner was rightly convicted.

Modern approach:

Sweet v Parsley (1970): The defendant was a teacher who rented out her farmhouse to students.                                                                           The students were found by the policy to be smoking cannabis. She was convicted by the magistrates with ‘being concerned in the management of premises used for the purpose of smoking cannabis resin’ but the House of Lords allowed her appeal. Lord Stein said

“…whenever a section is silent as to mens rea there is a presumption that, in order to give effect to the will of parliament, we must read in words appropriate to require mens rea”

The Gammon Principles

Gammon (Hong Kong) Ltd v AG for Hong Kong (1984): The contractor, project manager and site agent for building works in Hong Kong were charged, following the collapse of part of the building, with diverging or deviating from approved plans and with carrying out building works in a manner likely to cause risk of injury to any person or damage to any property contrary to the Building Ordinance (H.K.) (revised ed. 1981) s. 40. The magistrate acquitted the defendants on the ground that mens rea was necessary. The Court of Appeal allowed an appeal.

The appeal court held as follows (now known as the Gammon Principles):

1. There is a presumption of law that mens rea is required before a person can be guilty of a criminal offence

• the presumption is particularly strong when the offence is ‘truly criminal’ in character

• the presumption applies to statutory offences and can be displaced only if this is clearly or by necessary implication the effect of the statute

• the only situation in which the presumption can be displaced is where the statute is concerned with an issue of social concern; public safety is such an issue

• even where the statute is concerned with such an issue, the presumption of mens rea stands unless it can be shown that the creation of strict liability will be effective to promote the object of the statute by encouraging greater vigilance to prevent the commission of the prohibited act.

More case examples

B (a minor) v DPP (2000): B, a boy aged 15, repeatedly requested a 13 year old girl to perform oral sex during a bus journey. He was charged with inciting a girl under 14 to commit an act of gross indecency. B maintained a not guilty plea on the basis that he had honestly believed that the girl was over 14. B was convicted but he appealed to the House of Lords. Held, allowing the appeal, that (1) the common law presumption of mens rea applied in the Act. The presumption was well established in the absence of a specific contrary intent expressed by Parliament (Sweet v Parsley applied); (2) a defendant was entitled to be acquitted of the offence if he honestly believed that the child in question was aged 14 or over and it was not necessary that his belief had to be based on reasonable grounds; and (3) the burden of proving that the defendant lacked honest belief that the child was aged 14 or over lay with the prosecution.

Warner v Metropolitan Police Chief Commissioner (1968): The offence of being in unlawful possession of drugs; mens rea is unnecessary. Nevertheless, where the drugs are contained in a parcel the prosecution must prove that the defendant was in possession of the contents of the parcel, i.e., that he was not completely ignorant as to the type of thing contained in it. The defendant was found with a parcel containing a prohibited drug and was charged with having the drug in his possession; he was convicted after putting forward the defence that he was ignorant of the contents of the parcel.

Harrow LBC v Shah (1999): the defendant, a shopkeeper, did all he could to deter his staff from selling lottery tickets to minors. One of his staff sold a ticket to a girl who was under 16 but looked much older. He was convicted because this offence was held to be one of strict liability. This case has been criticised for imposing guilt on those not blameworthy.

Justification for strict liability

• Deterrent effect – encourages greater safety and improved standards of prevention

• Efficient in both administrative and financial terms as prosecution relieved of difficult task of proving mens rea – easier to enforce, saves court time

• In many strict liability cases there is no threat to liberty

• Discretion is often exercised by those responsible for enforcement and prosecutions rare where there is complete absence of fault

• Existence of specific statutory defences in some cases help to alleviate possible injustice.

Criticisms of strict liability

• Unjust to impose criminal liability on those who are not at fault

• Doubts expressed that morally correct to enforce strict liability because mens rea is hard to prove

• Even where there is no threat to liberty, conviction is punishment in itself

• Few controls over enforcement agencies who have discretion re. prosecution

• Unnecessary and does not lead to higher standards of protection for the public

• Inconsistent application

• Little administrative advantage

Proposals for reform

Under the Law Commission’s Draft Criminal Code Bill 1989, clause 20, mens rea is presumed and strict liability can be imposed only if Parliament expressly or impliedly so provides in statutes.

Smith and Hogan suggest strict liability should be replaced by liability for negligence, punishing those who should be held liable for their actions and not those who are genuinely not at fault.

The introduction of a defence of all due care. D can avoid conviction by proving that they took all due care to avoid committing the offence. There are already some defences of due diligence available e.g. Food Safety Act 1990, section 21.

Baroness Wootton (Crime and the Criminal Law (2^nd Ed 1981)) argued that strict liability to should be extend to cover all crimes, therefore making mens rea relevant for sentencing purposes.

INCOHATE OFFENCES

‘Inchoate’ – just begun or undeveloped.

Where a person takes steps towards effecting a plan to commit a substantive offence, he may be committing one of the inchoate offences of incitement, conspiracy or attempt.

INCITEMENT

An inciter is ‘one who reaches and seeks to influence the mind of another to the commission of a crime.’

– per Holmes J in Nkosiyana (1966).

Actus Reus

The actus reus can be anything from suggestion to actual encouragement of someone to commit a crime. But it also extends to inciting by ‘threatening or by pressure’ – per Lord Denning MR in Race Relations Board

v Applin (1973).

Invicta Plastics Ltd v Clare (1976): The company advertised for sale a device called ‘Radatec’ which was not illegal to own but was illegal to operate without a licence. The device, when operated by car drivers, gave them warning when a police radar trap was set. It was held, according to Lord Denning’s remarks in RRB v Applin, that the company had incited readers of the advert to commit an offence under a criminal statute.

What if the person solicited does not comprehend what is being communicated or the message fails to reach him?

Ransford (1874): letter intercepted before it reached its addressee.

Krause (1902): prosecution need not prove that the incitement was effective.

Whitehouse (1977): the incitement must be to do an act which, if done by the incitee, would be a criminal act. If the act is committed, the inciter becomes an accessory to that offence and will be dealt with accordingly.

Mens Rea

The accused must intend that, as a result of his persuasion, another person would commit an act which would be a criminal offence.

There is no need for the prosecution to prove that the accused knew that the act would be an offence.

The accused must believe that if the offence incited is committed, the person committing it (i.e. the incitee) would have the requisite mens rea.

Impossibility

• Where the impossibility arises from the inadequacy of the means to be used to commit the offence the accused will still be guilty of incitement.

• Where the impossibility arises independently of the means to be employed and the commission of the offence incited is impossible regardless of the means to be used the accused will not be liable for incitement to commit.

R v Fitzmaurice (1983): D’s father tricked D and three others into believing that a woman would be carrying wages from her workplace to a bank at a particular time. D incited the three others to rob the woman. Convictions of conspiracy to rob a person were set aside on the basis that the crime they had conspired to commit was impossible of fulfillment.

CONSPIRACY

Mainly a statutory offence under section 5(1) of The Criminal Law Act 1977

Actus Reus

Agreement is the essence of the offence. There is no conspiracy if negotiations fail to result in a firm agreement between the parties. The agreement must involve spoken or written words or other overt acts.

R v Walker (1962): D and two other men were convicted of conspiracy to rob. The robbery had been committed by four or five men wearing hoods. In his statement D said that he was asked if he knew anyone who was interested in stealing a payroll. He introduced the other D’s to a man and after discussions, he, D, decided to pull out. Held: there was no evidence from which an agreement could be inferred.

Liability will be limited to the consequences the parties intended.

R v Sicacusa (1990): A conspiracy to import a certain drug would only be established by proof of an agreement to import that particular drug. S and others were charged with conspiracy to import cannabis and to import heroin. The jury were directed that if a defendant agreed to pursue a course of conduct which, if carried out, would amount to an offence, then he was guilty of a conspiracy. The appellants were convicted and appealed, arguing that for a conspiracy charge to be made out, the prosecution were obliged to prove that each defendant knew that cannabis and heroin were being imported. Held, dismissing the appeals, that the essence of a conspiracy was the agreement. A conspiracy to import heroin could not be proved by an agreement to import cannabis. The prosecution had to prove an intention to import the drug itself. In the present case the judge’s summing up had made it quite clear to the jury that on the heroin counts an agreement to import heroin was required and on the counts relating to cannabis proof of an agreement to import cannabis was required.

A person cannot be convicted of conspiracy where the only person with whom he agrees is:

• His spouse – R v Mawji (1957);

• A child under the age of 10; or

• The intended victim of the relevant offence.

Mens Rea

This was expressed in R v Anderson (1986)

“the necessary mens rea of the crime is established if, and only if, the accused intended to play some part in the agreed course of conduct.. Nothing less will suffice and nothing more is required.”

This was thrown into doubt by the Privy Council decision in…

R v Yip Chiu-Cheng (1994): The appellant had been convicted of conspiracy to traffic in heroin. The conspiracy concerned an agreement between the appellant and an American undercover drug enforcement agent to meet in Hong Kong where the agent would receive from him some heroin which the agent would then take to Australia. The Hong Kong authorities were aware of the plan and had agreed not to prevent the agent from traveling to Australia (as the aim was to identify others in the drug ring). However, the agent missed his flight to Hong Kong and the plan was abandoned. The appellant argued that the agent could not be a co-conspirator as he lacked the necessary mens rea for conspiracy.

Lord Griffiths stated that

“the crime of conspiracy requires an agreement between two or more persons to commit an unlawful act with the intention of carrying it out. It is the intention to carry out the crime that constitutes the necessary mens rea for the offence.”

Impossibility

Section 1(1)(b) CLA 1977 deals with the problem of impossibility.

A and B will be liable for conspiracy in the following circumstances :

• Where the impossibility is due to the circumstances.

For example, where they agree to pick C’s pocket which, unknown to them, is empty.

• Where it is due to inadequacy of means.

For example, where they agree to break into a safe with an iron bar.

• Where it is due to legal impossibility.

For example, where they agree to have consensual sexual intercourse with C whom they believe to be 15, but who has just celebrated her 16th birthday.

Withdrawal

If the accused repents immediately after the agreement has been concluded, he is guilty and his repentance is a matter of mitigation only.

ATTEMPT

A statutory offence under section 1(1) Criminal Attempts Act 1981

“if… a person does an act which is more then merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence.”

It is not possible to be convicted of conspiracy to commit the following offences:

• Conspiracy
• Aiding
• Abetting
• Counseling
• Procuring the commission of an offence Further..
• A person cannot attempt to commit an offence which can only be committed by omission
• A person cannot be convicted of an attempt to commit a result crime on the basis solely of an omission where he was under a duty to act.
• Where an offence may not be committed intentionally (e.g. involuntary manslaughter) there cannot be an attempt to commit it.

Actus Reus

The jury should ask

1. Was the act merely preparatory to the commission of the offence?

Mens Rea

The essence of the offence of attempt is intention. Mens rea must be found.

R v Whybrow (1951): CA held that although on a charge of murder proof of intention to cause GBH would suffice to establish mens rea, on a charge of attempted murder ‘the intent becomes the principal ingredient of the crime.’ Accordingly, it has to be proved that the accused intended to kill.

Similarly, if recklessness with regard to causing a consequence will suffice for the substantive offence, only intention with regard to that consequence will suffice where attempt is charged. (e.g. O’Toole (1987) Crim LR 759).

Mohan (1976) – CA defined the word ‘intent’ as ‘a decision to bring about, in so far as it lies within the

accused’s power, the commission of the offence which it is alleged that the accused attempted to commit, no matter whether the accused desired that consequence of his act or not.’

Note that this definition encompassed direct intent and oblique intent and was approved by the same court in

Pearman (supra).

Note that if direct intention is involved, it matters not that the achievement of the result is possible, probable or certain. If achievement of that result is the accused’s aim or purpose, then he intends it whether or not he is likely to achieve.

Note also that if a jury are satisfied that the accused’s direct intent was to cause GBH they may, but need not necessarily convict of attempted murder if satisfied that the accused knew that death was virtually certain to ensue and thus infer intention to kill from that foresight.

What mens rea is required as to the material circumstances of the offences?

The Law Commission, in its report which preceded the Act (No 102), took the view that intention as to every element of the offence was required.

Khan (1990) – CA held that if recklessness in respect of a circumstance will suffice for the substantive offence, then it will also suffice on a charge of attempt to commit that offence.

What about conditional intention? Firstly, what is it?

A person has conditional intent when he intends to commit an offence if a particular condition is satisfied, such as where he intends to steal from the victim’s car if he finds any items of value in it.

In such a situation, provided the prosecution do not charge the accused with attempting to steal specific items, there is no obstacle to a conviction.

If the car is completely empty, a conviction is still possible under section 1(2) – see later.

Impossibility

If the accused makes a mistake as to the law he will not be guilty of attempt. What he is attempting to do is not a crime and, as we know, the offence of attempt only applies to indictable offences.

Taaffe (1984) – D imported into the UK certain packages which he believed to contain foreign currency. He thought it was a crime to import foreign currency. It was not. He could not, on those facts, be convicted of any offence or of an attempt to commit any offence.

At common law the accused could only be convicted where the impossibility arose from inadequacy of means

– Haughton v Smith (1975).

The Law Commission recommended that the law should be changed, placing emphasis on the intention of the accused. This recommendation was put into effect by sections 1(2) and 1(3) of the Act.

Section 1(2) renders a person liable to conviction regardless of the category of impossibility (physical, inadequacy of means, or legal) which prevented commission of the intended substantive offence.

Section 1(3) is, essentially, superfluous but it was included as a precaution to deal with the particular situation of legal impossibility. It simply states that if the facts had been as the accused believed them to be, he shall be regarded as having intent to commit that offence.

THEFT

Statutory definition: ‘A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it’. Theft Act 1968 (Section 1(1))

Actus reus:

1. appropriation,
   1. property,
   1. belonging to another.

Mens rea:

• dishonesty,
  • intention to permanently deprive.

Lawrence v Metropolitan Police Commissioner – it was stressed by the House of Lords that all five elements were essential for a conviction.

Appropriation

Section 3(1) of the Theft Act 1968 defines it as ‘any assumption by a person of the rights of an owner’. This includes where the person has come by the property without stealing it, but later assumes a right of an owner (e.g. keeping it, destroying it, selling it).

R v Concoran – describes the right of an owner as ‘something done in relation to property that only the owner can properly do’.

Section 3(1) refers to the ‘rights’ of an owner which seems to refer to all the rights, but this has not been accepted by the courts.

R v Morris – D switched the labels on two articles displayed on a supermarket shelf with the intention of buying the more expensive item at the lower price. Held: the right to label the goods is a right of the owner – appropriation.

Lord Roskill – “…any of the rights of the owner of the goods…” is enough. Despite criticism, the decision was also affirmed in the House of Lords

R v Gomez – Lord Keith said “In my opinion Lord Roskill was undoubtedly right when he said… that the assumption by the defendant of any of the rights of an owner could amount to an appropriation”.

R v Hinks – ‘any assumption … of the rights of an owner’ is an appropriation.

What about when the owner consents to the appropriation?

R v Lawrence – taking more than was due for a taxi fare from a person who did not understand English money was held to be an appropriation, even though the person held out his wallet and allowed the taxi driver to take the money.

The effect of this decision is that the owner’s consent is irrelevant.

R v Morris – Lord Roskill disagreed with the decision in Lawrence, “a belief or lack of belief that the owner consented to the appropriation may be relevant to the issue of dishonesty but not to the question of … appropriation”.

Note: obiter dicta as it was already decided to be an appropriation – see above – although important as it was at odds with the decision in Lawrence.

Dobson v General Accident Assurance – jewellery was bought with a worthless cheque. The Court of Appeal applied Lawrence – appropriation even with owner’s consent.

R v Gomez – Gomez, the assistant manager of a shop, persuaded the manager to sell goods worth £17k to his accomplice, X, and to accept payment by two cheques which Gomez and X both knew to be stolen and worthless. They were convicted of theft, but the Court of Appeal quashed the conviction following Morris – X took possession of the goods with the express authority of the manager and hence there was no appropriation. The House of Lords restored the convictions, relying heavily on the judgment in Dobson and the fact that the proposition in Morris was merely obiter dicta.

Gomez is now the current law to be followed with regard to appropriation.

The effect of Gomez

Criticism

Lord Lowry, the dissenting Judge in Gomez, delivered a strong speech criticizing the decision of the majority. He said

• As a matter of ordinary language, appropriation meant ‘take possession of, take to one-self, especially without authority’. It was a unilateral, not a consensual act. To the majority, the lack of consent was irrelevant. But to Lowry it was a necessary ingredient of appropriation.
• He suggested that the Eighth Report of the Criminal Law Revision Committee (Theft and Related Offences) should be looked at to determine the meaning of the word. The Report was to the effect that ‘appropriation’ was to bear its ordinary language meaning. Therefore, if the accused

deceived the victim, then the proper charge was obtaining goods by deception, not theft.

• In most instances where there is a deception, the accused becomes the owner of the goods. Lowry points out that Gomez makes the accused into a thief even thought he is the owner of the goods in civil law.

“The result of Gomez is that the offence of theft is now astoundingly wide” Ashworth, Principles of Criminal Law

Professor Smith agrees. He says that theft now embraces “many acts which would more naturally be regarded as merely preparatory acts, not even amounting to an attempt, to steal or obtain by deception” Criminal Law, 9^th edition.

Agreement

P Glazebrook disagrees. He argues that it does not matter whether D is convicted as a thief or a swindler. He takes the view that it is morally irrelevant to make a distinction between one who appropriates another’s property by stealth or by deception – “The crook is as dishonest in the one case as the other, and the loss to his victim is exactly the same.”

Limitation on Gomez

R v Gallasso – D, a nurse, agreed to pay some cheques into a patient’s bank. Instead of paying them into an account that the patient already had, she opened a new account, also in the patient’s name, and paid the cheques into that. She was convicted of theft and appealed. Held: although a taking with consent might amount to appropriation, it was still necessary to show a ‘taking’. As this had not occurred D was not guilty of theft and her appeal was allowed.

Professor Smith has claimed that this decision is per incurium and should not be followed.

R v Mazo – D, a maid, was given large sums of money by her elderly employer of failing mental health. The maid was convicted of theft and appealed. Held: someone in receipt of a valid gift could not be convicted of theft.

R v Hopkins and Kendrick – On similar facts to Mazo, the Court of Appeal upheld a conviction of theft of the Defendants.   Mazo was distinguished on the basis that here it was clearly evidenced that a valid gift was not made as the donor was not of sound mind.

R v Hinks – D was alleged to have influenced a 53 year old man of limited intelligence to withdraw £60,000 and pay it into her account. She claimed the payment was a gift, but was convicted of theft and appealed. Held: conviction upheld following Hopkins and Kendrick.

Property

Section 4(1) “Property includes money and all other property, real or personal, including things in action and other intangible property.”

Belonging to another

Section 5(1) “Property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest.”

Dishonesty

The Act does not provide a definition but does tell us what is not dishonest.

Section 2(1)(a) – if the defendant believes that he has ‘in law the right’ to take the item. For example, where D takes £50 from V’s wallet believing that he is owed

£50 by V.

Section 2(1)(b) – if the defendant believes that he would have the other’s consent if the other knew of the appropriation. This is judged subjectively.

Section 2(1)(c) – if the defendant believes that the person to whom the property belongs cannot be discovered by taking reasonable steps. For example, if something is found and it would be too difficult to find the owner.

Willingness to pay in not necessarily an exemption from dishonesty:

R v Feely – D ‘borrowed’ £30 from his employer’s till, despite a previous warning that employees were not permitted to do so. He claimed that he always intended to return the money. He was convicted of theft and appealed. Court of Appeal held: it is for the jury to decide 1) what the defendant’s state of mind is, and 2) if that state of mind should be categorised as dishonest. Appeal allowed as the judge had not left the jury to decide the issue.

R v Ghosh – D was a locum consultant at a hospital. He falsely claimed fees for an operation not actually performed. He claimed he was not acting dishonestly by his own standards because he was legitimately owed the same amount by the hospital. The jury convicted him of theft and he appealed. The Court of Appeal advanced the Feely test as follows:

• Was what was done dishonest according to the ordinary standards of a reasonable and honest person?
• Did D realise that a reasonable and honest person would regard what he did as dishonest.

Conviction upheld as criteria satisfied.

Intention to permanently deprive

The Act does not define intention to permanently deprive, but does say (in Section 6) that it can include circumstances when D did not mean the other to lose the thing permanently but he did intend to deprive permanently.

Section 6 gives two scenarios:

1. Where the intention is to treat that thing as his own to dispose of regardless of the other person’s rights

DPP v Lavender – D took two doors from a council house undergoing repair and fitted them to another council property to replace damaged doors. Held: ‘dealing with’ could amount to ‘disposing of’.

• Borrowing or lending for a period in circumstances making it equivalent to an outright taking or disposal.

R v Lloyd – films were removed from a cinema for a few hours to make ‘pirate’ copies, after which the originals were returned. D appealed against his conviction for conspiracy to steal. Held: appeal allowed. Borrowing is not generally done with the intention to permanently deprive.

So the Lloyd test is: as long as you can satisfy the jury that your intention was to return the thing before it had expired you had no intention to permanently deprive.

PARTIES TO CRIME

Secondary Parties

The Accessory & Abettors Act 1861 (section 8) says that secondary parties ‘are liable to be tried, indicted and punished as if they were the principal offender’.

It provides four modes in which someone can be a secondary party to a crime:

• Aid – to help, assist or support
• Abet – to incite, instigate or encourage
• Counsel – to advise in an encouraging way
• Procure – produce by endeavour (e.g. setting out to see what happens and taking the appropriate steps to produce that happening)

1. ’s reference (No 1 of 1975) – D, who had laced someone’s drinks knowing that he would be driving home shortly afterwards, was indicated for aiding and abetting driving with excess alcohol. Held: D procured the offence of driving with excess alcohol. The case highlighted the importance of having four types of accessories, but that the courts use them fairly indistinguishably.

Reasons why we have to distinguish between principal and secondary party:

• Strict liability only applies to principals
  • No vicarious liability for the acts of secondary parties
  • The sentence will probably differ Classic case example:

R v Grundy – two accused were beating up a constable on the stairs up to an Indian restaurant. The defendant joined in after a few seconds. The constable suffered a broken nose and other injuries. The defendant was convicted of aiding that offence. Held: it was immaterial that the defendant joined in after the principals had begun to inflict injuries.

Actus Reus

Must involve aiding, abetting, counseling or procuring an offence.

Presence: the basic principle is that mere presence at the scene of a crime and failure to intervene is not enough to be an accessory.

R v Clarkson and Carroll – the appellants were British army soldiers who were convicted of rape at a courts-martial court. They had gone into a room in their barracks in which a girl was being raped by other soldiers. They played cards whilst the rape continued. There was no evidence that either of them had done

any act or uttered any work which involved any encouragement – appeal allowed. LJ Megaw relied upon the case of R v Coney which said that non-accidental presence at the scene of a crime is not conclusive proof of aiding and abetting.

Drugs:

R v Bland – the accused was not guilty of being a secondary party to the crime of unlawfully possessing controlled drugs by continuing to share a room with the principal offender after she found out about the drugs.

Note: if Bland had owned the room she would have been guilty of knowingly permitting the use of drugs on her premises (Section 8, Misuse of Drugs Act 1971).

Ownership:

Du Cros v Lambourne – it was proved that the first defendant’s car had been driven at a dangerous speed but it was not proven whether the first defendant or the second defendant had been driving. The first defendant, as the owner, was convicted as even if the second defendant was driving, as it was the first defendant’s car the he was in legal control and could have prevented the dangerous driving.

Principal offender acquitted:

Cogan v Leak – the defendant compelled his wife to have sex with a man against her will. The man who had sex with the wife was acquitted because he thought she was consenting but husband was held to be an accessory to rape.

Another example is procuring a child under 10 to carry out a burglary. A child under 10 cannot be committed of any offence but the procuring party may still be dealt with as an accessory.

Mens rea

Three points:

• The act of the secondary party must be intentional.

• The secondary party must possess knowledge that his act will encourage or assist the commission of a crime

NCB v Gamble – an employee of the national coal board told a driver that his lorry was overladen. Driving an overladen vehicle is an offence. The driver said that he was prepared to take the risk of being caught and the employee gave him a weighbridge ticket, without which the driver could

not have left the pit. He was found guilty of being an accessory to the offence.

Important point: motive is irrelevant – an indifference to the result of the crime does not negate liability.

• The secondary party must have knowledge of the type of offence.

R v Bainbridge – A supplied oxygen-cutting equipment to D who used it to break into a bank and steal money. A appealed his conviction as an accessory claiming that it had to be proved that he knew the precise details of the intended offence. Held: it was sufficient that A knew the particular type of offence intended.

Note: mere knowledge that ‘an offence’ was intended would not have been enough.

Maxwell v Director of Public Prosecutions for NI – it was held that an accessory who leaves it to his principal to choose what offence is committed is liable provided the choice is made from the range of offences from which the accessory contemplates the choice will be made.

Joint Enterprise

Basic principle: two or more people agree to carry out a common purpose.

R v Bentley and Craig – Both defendants went on a robbery of a warehouse. Craig was armed with a pistol. Bentley was arrested, but Craig was still free. He pulled out his handgun and Bentley shouted “Let him have it Chris”. Craig then deliberately shot and subsequently killed the police officer who was holding Bentley. Both defendants were convicted of murder.

What if something happens beyond what is agreed?

Chan Wing Siu – three defendants went to commit a robbery armed with knives and one guarded the victim’s wife while the others then killed the victim. All three defendants convicted for murder. Held: all parties are liable for acts done which were not necessarily intended, but were foreseen as a real risk.

Hui Chi-ming – several defendants beat up a man with a lead pipe, who later died of his injuries. Four of the group were convicted of manslaughter, including X the person holding the lead pipe, because they pleaded guilty to this. D refused to plea guilty as he only stood there, he didn’t encourage anyone or use any violence and he didn’t agree beforehand that the beating would go so far. Held: D had sufficient mens rea so was convicted of murder.

The effect of these cases is that the prosecution has to prove beyond reasonable doubt that the accessory was aware as a real risk (not a remote risk) that the more serious offence might be committed.

Stewart – it is possible for a secondary party who participates in a joint enterprise to be guilty of murder or unlawful act manslaughter irrespective of whether the actual perpetrator is guilty of murder or manslaughter, if the accessory has the required mens rea (i.e. intent to cause serious harm).

Opposing decision:

Anderson and Morris – if the act was not committed as part of the joint enterprise then the principal has stepped outside the joint enterprise and the secondary party liability would depend on the state of mind of the secondary party once he or she is aware of the new intention.

However:

Gilmour – it was pointed out that where the principal carried out the very act contemplated by the accessory, it would not matter that the accessory did not realise that the principal intended a more serious consequence and Stewart would be followed.

A recent update:

In a decided case last year, nine members of a gang were convicted of murder, although it is not known which of them fired the fatal shots as they clung to their gang-land code of silence.   DI Talbot, who led the murder enquiry, said “all of them were aiding and abetting… In the eyes of the law, they are all as guilty as the man who fired the shots”. This case has made British legal history.

Withdrawal

NON-FATAL OFFENCES AGAINST THE PERSON

Venna – separately defined the two types:

• Assault: causing   another,   intentionally   or   recklessly,   to   apprehend

immediate and unlawful personal violence

• Battery: intentionally or recklessly inflecting unlawful personal violence upon another

Assault

“An act which causes another person to apprehend the infliction of immediate, unlawful force on his person” – Robert Goff J in Collins v Wilcock

Three types:

• Common assault
  • Assault occasioning ABH
  • Assault occasioning GBH

Actus reus

The act must be unlawful, e.g. not self-defence or preventing a crime. Fagan – an assault requires some act or words; an omission is not enough. The following can be enough, as long as there is fear:

• Pointing a gun, even though it is unloaded – St George
  • Pointing an imitation firearm – Logdon (even though in this case the accused didn’t intend to execute a threat)
  • Shaking a fist – Stephens v Myers
  • Silent phone calls – Ireland

If there is no apprehension of immediate harm, then there is no assault, eg:

• Where a gun is pointed but the victim believes it is unloaded – Lamb
  • Where the victim knows by the accused’s words that the threat will not take place – Tuberville v Savage

‘Immediate’ danger is interpreted broadly, eg:

• Frightening a victim through her bed-sit window was held to be immediate, even though the woman would have had time to escape before the accused could get in – Smith v Woking Police Station

Mens rea

Intention to cause another to fear immediate and unlawful personal violence, or recklessness as to whether such fear is caused – as stated by Lord Elwyn-Jones C in DPP v Majewski

The recklessness should be subjective (Cunningham) – confirmed in Savage

Battery

“The actual infliction of unlawful force on another person” –Robert Goff J in Collins v Wilcock

Actus reus

The victim does not have to suffer harm, although there must be force applied by the accused. For example, touching, kicking or throwing beer over the victim are all enough – Savage

Most batteries are directly inflicted, although this is not always true. In Haystead v DPP the accused hit a woman who was carrying a child. The woman dropped the child – the accused was guilty of battery on child also.

Mens rea

Intention or Cunningham recklessness.

Assault occasioning Actual Bodily Harm

Must first be guilty of an assault or battery which subsequently caused ABH. The assault here can mean an assault or a battery.

“any hurt or injury calculated to interfere with the hurt or comfort” of the victim – Miller

Includes physchiatric injury but not mere emotions e.g. fear, distress, panic – Chan Fook

The prosecution are not obliged to prove that ABH was intended – Savage

Wounding with intent / Grievous bodily harm

‘Grievous’ means “serious harm” – Saunders

‘Wounding’ means breaking the inner and outer skin – C v Eisenhower

Actus reus

No assault is necessary – Lewis

But defendants act must be substantial to have caused the victim’s injury (causation).

Mens rea

Some physical injury must have been foreseen, but it is not necessary that the defendant foresaw the actual gravity of his actions – Mowatt

Consent

Only available to actions which cause harm in recognised circumstances e.g.:

• A boxing match – A G Ref No. 6 of 1980
  • Surgery – Bravery
  • Tattooing and ear piercing – Wilson

The victim is unable to consent to most sexual offences – Brown

However:

Boyea – stated that change in social circumstances should be taken into account as to whether a victim could consent