TOPIC- 9: NON FATAL OFFENCES to include conduct that creates a reasonable

apprehension of immediate harm without physical force

AGAINST THE PERSON or verbal threats.

# Crimes against autonomy: common - In constanza 1997

assault Sending threat letters constitute assault.

3. Unlawful force

An act can only be considered a criminal offence of

 Assault assault if the use or threat of force is illegal. Exceptions
The first form of common assault is assault, include acts done in self-defense or lawful arrest, and
properly so called, or – as Williams calls it acts with the consent of the person being approached
or threatened, as provided under section 3(1) of the
– ‘psychic’ assault, or simple assault. It requires no Criminal Law Act 1967.
physical contact with the person of the victim. It
was defined in Venna [1975] 3 All ER 788 as
follows:
Mens rea of assault
A person is guilty of assault if he intentionally or
recklessly leads someone to apprehend the The mens rea, or mental element, for a common assault
application to his body of immediate unlawful force. is either intention or recklessness, meaning that the
person knew or should have known that their actions
would cause someone to fear the use of force.

Actus reus of assault - Spratt 1990

1. Causing apprehension Spratt fired an air pistol from his apartment, hitting a
Simple assault involves making someone girl outside. His conviction for assault causing bodily
believe they are about to be unlawfully harm was quashed because the prosecution could not
touched. House of Lords approved in Venna prove his intention or knowledge of harm to the victim.
case.

2. Immediacy
- Thomas v NUM
 Battery or assault by beating
Battery can be defined as:
So, in Thomas  v NUM  [1986], a civil case, it was not an
assault when picketing mineworkers made threatening any act by which D, intentionally or recklessly, inflicts
gestures. (non-consensual) unlawful force upon P.
- Smith v chief constable Actus reus of battery
D looked through V's curtains at night and made her
Battery involves someone using force or making
afraid. Court found him guilty of assault because his
physical contact with the victim without their consent.
actions caused fear of potential violence, even though
he could not physically harm V from his position outside 1. Force
the apartment. - Collins v Wilcock 1984: a police officer touched
women without consent; the court ruled that
- Ireland case 1998
any intentional and unwanted physical contact,
It established that non-physical conduct like silent even if it does not cause harm, is a battery.
telephone calls and heavy breathing could constitute an
assault, even if the victim did not fear immediate
violence. The case broadened the definition of assault
 - DPP V SMITH 2006 Mens rea of battery
Cutting hair amounts to actual bodily harm under s. 47 Mens rea for battery is intention or recklessness
OAPA towards unlawful contact, not harm. Actus reus of
- Fagan v MPC 1968 battery is unconsented force, Mens rea is intention or
foresight of unconsented force.
The case involved a police officer who accidentally
drove his car onto a man's foot and then refused to
move the car when the man asked him to. The court
# CRIMES OF VIOLENCE
held that the act of driving the car onto Mr. Morris' foot
was sufficient to establish the Actus reus (the guilty act)  Assault occasioning actual bodily
of the offence of assault, and that the Mens rea (the
guilty mind) could be established by Mr. Fagan's
harm
subsequent refusal to move the car. Section 47 OAPA makes it an offence to commit
an assault occasioning actual bodily harm.
Is direct force necessary?
- Haystead v DPP 2000

In Haystead v DPP [2000] 3 All ER 690, the defendant

Actus reus: s.47
punched a woman, which caused her to drop her baby To support a conviction for s.47 the prosecution
on the ground. In the case of the mother, the battery must therefore establish:
was intentional. In the case of the baby, it was reckless.
Both fault elements suffice for battery.  a common assault
- DPP V K (a minor) 1990  actual bodily harm
The case of DPP v K (A Minor) (1990) 91 Cr App R 23  a causal connection (occasioning) between
runs counter to this conclusion. K, a schoolboy, loaded a
the assault and the harm.
hand dryer in the school lavatories with acid. The next
user, V, was injured when it discharged on to him. The
Common assault
Queen’s Bench Division was satisfied that this was a
battery. But what force did K apply directly or indirectly To prove a Section 47 offence, the prosecution must
to V? Presumably, the force of the acid hitting his show that the defendant caused actual bodily harm by
person. either threatening unlawful contact or making such
contact.
2. Unlawful force
What is actual bodily harm
The force must be unlawful.
Actual bodily harm was defined rather loosely by
- Kenlin v Gardiner 1966 Swift J in Donovan [1934] 2 KB 498 as:
police officers took hold of two boys; on appeal, the
any hurt or injury calculated to interfere with the
Queen's Bench Divisional Court held that the officers' health or comfort of the [victim]. Such hurt or injury
act of taking hold of the boys constituted an assault. need not be permanent but must...be more than
merely transient and trifling.
- Donnelly v Jackman 1970

Officer tapped D on shoulder to stop him, D punched - Ireland and Burstow

officer. Appeal against conviction failed as tapping was
Stalking through phone calls constitute bodily harm.
trivial interference with autonomy and not excessive
force. Not every unconsented contact is battery (Collins
v Wilcock [1984]).
What about the casual connection? What is meant by wounding?

- There should be no new intervention; casual A wound requires more than a scratch or a graze, even
connection should remain intact. This is known though blood may show. It requires a penetration of
as test for causation. both layers of skin – namely the dermis and epidermis.
Internal ruptures do not count as a wound, nor does
- Case of Roberts 1972 bruising, despite the blood loss (Mcloughlin (1838) 173
ER 651). In Eisenhower [1984] QB 331, D shot V with an
Touched the girl; jumped out of car fearing sexual
air gun and the pellet hit V near the eye, resulting in a
assault; the court convicted saying there was
bruise below the eyebrow and a bloodshot eye. D was
reasonable foreseeability.
charged under s.20. The injury satisfied neither form of
- Savage 1972 the Actus reus of s.20: it was insufficiently serious to
count as grievous and nor did it count as a wound,
In the case of Savage [1992], the House of Lords because a wound is a break in the continuity of the
approved the case of Roberts [1972]. skin. In short, an internal rupturing of the blood vessels,
as here, is not a wound. This should have been charged
as a s.47 offence.
Mens rea of S.47?
- Mcloughlin 1838
The Mens rea for section 47 only requires an intention - Eisenhower 1984
to cause fear of physical contact or an intention to apply
unlawful force to the victim.
What is meant by Grievously bodily harm?
- In the case of Savage, where the defendant
threw beer at the victim, and the victim was In a court case called Bollom [2003] EWCA Crim 2846,
injured by a broken glass. The defendant was the Court of Appeal said that the seriousness of an
guilty of section 47 because he intended to injury depends on who the victim is.
throw the beer at the victim, and it was not
- Example of pianist and office worker; injury to
necessary to show that he foresaw the glass
finger. (it determines who the victim is)
breaking and causing injury.

Now do study task 4 - Injuries given by The Crown Prosecution

Service

These include serious wounds, broken bones, severe

 Malicious wounding/infliction of
beatings, unconsciousness for an extended period,
grievous bodily harm/ S.20
permanent disfigurement or the need for long-term
Under s.20 of the OAPA, an offence is committed treatment or surgery. Grievous bodily harm can also
where D:  include sexually transmitted diseases and serious
psychiatric injury.
unlawfully and maliciously wound[s] or inflict[s] any
grievous bodily harm upon any other person, either Grievous bodily harm must be inflicted
with or without any weapon or instrument.
- Harm can be inflicted in the absence of use of
Actus reus of S.20? force (Ireland). There is no difference between
inflicting harms and causing harm.
S.20 (and S.18) has two different parts - wounding and
causing grievous bodily harm, which are not the same. - Case of Dica
You can wound someone without causing grievous
bodily harm, and you can cause grievous bodily harm In Dica, D had intercourse with V without informing her
without wounding someone. that he was HIV positive. D was convicted.
Mens rea for S.20?
A person must have had the intention to harm or Intending grievous bodily harm?
recklessly ignored the possibility of harm. To prove a charge of causing grievous bodily harm, the
In a court case called Mowatt [1968] 1 QB 421, it was prosecution must show that the defendant intended to
cause serious harm to the victim or intended to resist or
decided that the prosecution only needs to prove that
prevent arrest. If the defendant only wounds the
the accused intended or foresaw the risk of some
victim, the prosecution must prove that the defendant
physical harm, not necessarily serious harm. In another intended to cause a serious wound that amounts to
case called Parmenter [1991] 2 WLR 408, the House of grievous bodily harm or intended to resist arrest. The
Lords agreed with this decision and ruled that the jury does not need to be given a Woollin direction but
prosecution does not need to prove that the accused should consider all the evidence to decide if the
intended or foresaw serious injury in order to be defendant intended to cause really serious injury to the
convicted of causing grievous bodily harm. victim or not.

 Wounding with intent/ S.18

# CONSENT AND OFFENCES AGAINST THE
By s.18 of the OAPA it is an offence to: PERSON
unlawfully and maliciously by any means
whatsoever wound or cause any grievous bodily
harm to any person, with intent to do some What is consent?
grievous bodily harm to any person, or with intent
to resist or prevent (arrest)... - Olugboja 1982
- Kirk 2008
The major, if not sole, difference between this
offence and that of s.20 OAPA lies in the Mens rea.
Section 18 is a crime of specific intent, whereas Consent must be effective?
s.20 can be committed either intentionally or
- Burrell v Harmer 1967
recklessly.
- Bolduc v Bird 1967

Actus reus of S.18?

It is again important to understand that there are What about consent and violence?
two alternative conduct elements in s.18. The first
- Donovan 1934
is a wounding; the second is an infliction of
grievous bodily harm

Causing grievous bodily harm? Deliberate infliction of harm?

Harm can be caused by an act, or by an omission in
breach of duty (e.g. Pittwood (1902) 19 TLR 37, Instan
[1893] 1 QB 450, Evans [2009] EWCA Crim 2243). What are some exception regarding it?

Men’s rea for section 18

Non- deliberate infliction of harm?
Section 18 is a crime of ulterior intent. What makes it so
serious is that, accompanying the wounding or the
causing of grievous bodily harm, is an intention
matching or exceeding the simple causing of the injury –
that is, to cause GBH or to resist or prevent an arrest.
# TOPIC- 8
Absent of consent
Conclusive presumptions (s.76) mean victim is
 Sexual Offences Act 2003, S.1 – presumed not to have consented, and evidential
Rape presumptions (s.75) make it easier for prosecution to
A person (A) commits an offence if— prove no consent. If neither applies, prosecution must
prove absence of consent through s.74.
(a)    he intentionally penetrates the vagina,
anus or mouth of another person (B) with his
penis,
The presumptions
(b)    B does not consent to the penetration, a. Conclusive presumptions (S.76)
and
Section 76 of the SOA 2003 creates a conclusive
(c)     A does not reasonably believe that B presumption that the victim did not consent, and the
consents. defendant did not reasonably believe the victim to
consent in certain situations.
A person guilty of an offence under this section is liable,
on conviction on indictment, to imprisonment for life. These situations are:

Conduct elements/ Actus reus (a) when the defendant intentionally lied to the
victim about the nature or purpose of the act,
The Actus reus  of rape involves the non-consensual and
penetration of the mouth, anus or vagina of a man or a
woman by a man’s penis. (b) when the defendant tricked the victim into
consenting by pretending to be someone known to the
Penetration of the vagina, anus or mouth with the victim.
tongue or finger or with objects such as broom handles,
bottles or dildos is not rape. It is the separate offence of - Section 76(2) (a)
(sexual) assault by penetration (SOA 2003, s.2). Williams [1923] 1 KB 340. D, a singing teacher, told V,
Under SOA 2003 s.79(2), ‘Penetration is a continuing his pupil, that it was necessary to perform an act (sexual
act from entry to withdrawal.’ This enshrines the pre- intercourse) in order to improve her singing. He was
SOA 2003 decision in Kaitamaki [1985] AC 147 that a convicted
man who continues to have intercourse after consent - R v Linker
is withdrawn commits the Actus reus of rape.
In the case, the defendant agreed to pay £25 for sexual
intercourse with a prostitute but afterward refused to
- R v DPP 2013 pay. The ruling retained the "very narrow" definition of
rape that, although consent was based on payment,
Any kind of sexual activity involving penetration of the refusing to do so after the fact was only fraud, not
vagina, mouth, or anus without consent is considered rape.
rape. It doesn't matter whether the perpetrator
ejaculates or not. Under s.79(3), ‘vagina’ includes - Section 76(2) (b)
surgically constructed vaginas following gender If someone pretends to be someone the victim knows
reassignment surgery. and has sex with them without their consent, it's
considered rape. This applies only if the person
impersonated is known personally to the victim. It can
be tricky to determine what "known personally" means,
especially in cases involving social media.
 The case of Kamki 2013 the court of appeal
- Section 76: questions of procedure
approved the following important direction

In cases where there are concerns about consent, the Even if a woman has had a lot to drink, she can still have
prosecution will first try to prove if there were the capacity to choose whether or not to engage in
circumstances that prevented the victim from giving sexual activity. However, if she becomes so intoxicated
consent. If they can't prove that, they will try to prove that she can't make a decision about having sex, then
the absence of consent. In the Jheeta case, the she can't give consent. If she is unconscious, she
defendant used fake text messages to pressure the obviously can't give consent either. There can be a state
victim into having sex, and the court ruled that the of incapacity to consent that falls between being
victim was deceived about the situation, which led to conscious and being unconscious due to the effects of
her lack of choice in the matter. This led to the alcohol. It's important to determine if someone is
conviction of the defendant for rape. capable of consenting before engaging in any sexual
activity with them, even if they have been drinking.
b. The evidential presumptions
2. Deception and consent
Section 75 of the SOA 2003 lists six situations where it's
presumed that the complainant did not consent to the - In the case of B [2006] EWCA Crim 2945
sexual act and the defendant didn't believe they
consented. These include cases where violence is used Sex with consent; but HIV (DECEPTION); it is not a rape
or feared, the complainant is unconscious or physically but a grievously bodily harm under OAPA 1861.
disabled, or has been given a substance without their - In the case of R (Monica) v DPP
consent. This presumption can be challenged with
evidence. Consent was not affected because there was no
pressure; a police officer rather than an environmental
c. Section 74- the statutory definition of consent activist. This decision is confusing and raises questions
about the definition of free choice in consent, especially
- Olugboja case in light of other cases.
In Olugboja case, the victim said she didn't consent but In two cases, Assange and F, it was held that a victim
didn't resist because she was scared, while the did not consent to intercourse when the defendant
defendant said she had consented. The Court of Appeal breached a condition set by the victim, such as wearing
couldn't decide, so it was up to the jury to use their a condom. The decisions were controversial as the
good sense and knowledge of human behavior to draw victim did consent to sex, but not to the way it
the line between real consent and mere submission. occurred. Some argue that the defendant should have
In a case called R v Ali and Ashraf, the Court of Appeal been charged with common assault instead.
ruled that immature people have no consent even if a
person appears to have given consent to sex.
Procedure: relationship between S.1, S.75 and S.74

1. Intoxication and consent - A learning activity

In the case of Bree 2007, a man was charged with rape Mens rea for it?
after having sex with a heavily intoxicated woman. The
a. Intention to penetrate
judge said that is important for the judge to explain the
jury that alcohol can affect a person’s ability to consent. To be guilty of rape, the defendant must intentionally
penetrate the complainant's vagina, anus, or mouth
Dougal case: a drunken consent is still consent.
without their consent. If the penetration is accidental,
even if the complainant did not consent to it, it is not
rape. In a case (R v Gabbai)
 b. Fault with regard to consent

In the past, the fault element in rape was subjective,

but now it is objective. This means that if the defendant
claims they believed the victim was consenting, the
court will only accept this defense if it is based on
reasonable grounds. Sections 75 and 76 of the Sexual
Offences Act apply to both the conduct element and
the fault element, and if they apply, the defendant's
belief in consent will be presumed absent. If they don't
apply, it's up to the jury to decide if the defendant's
belief in consent was reasonable, but the judge can
remove the issue from the jury if there isn't enough
evidence.

In Ciccarelli case, the defendant sexually assaulted the

victim while she was asleep. The defendant tried to
argue that he believed she had consented based on a
previous sexual advance. However, the judge ruled that
there was insufficient evidence to support his belief in
consent, so the defendant changed his plea to guilty.
The Lord Chief Justice ruled that the defendant's belief
in consent could be considered by the jury if there was
sufficient evidence to support it, even in situations
where the victim was in a position of disadvantage.
 act. For example, parents have a duty to care for their
children, so if they fail to feed them and their child
dies, they can be charged with homicide. However, if
there is no duty to act, even if someone's inaction is
TOPIC- 3: ACTUS REUS CONDUCT AND
immoral or unethical, they cannot be prosecuted. This is
CIRCUMSTANCES illustrated by the example of someone who sees
another person drowning but chooses not to help them
- if they had no legal duty to act, they cannot be
- Conduct: the act requirement charged with a crime for allowing the person to drown.
The core element for criminal liability is some
In the famous example of Sir James Fitzjames
form of prohibited act. Stephen:

- What is an act A sees B drowning and is able to save him by

holding out his hand. A abstains from doing so in
A bodily movement: in Hayward: it was sufficient that order that B may be drowned, and B is drowned. A
the accused threatened and chased his victim, who has committed no offence.
consequently died of a heart attack.
(A digest of the criminal law, 1887)
and a bodily movement be voluntary.
3. THE DEFENDANT’S FAILURE TO ACT
In Bratty  V A-G for Northern Ireland  [1961] 3 All ER 523 MUST BE IN BREACH OF THAT DUTY
HL, Lord Denning explained this as follows:
If someone has a duty to act but fails to do so, it is not
No act is punishable if it is done involuntarily: and an automatically a breach of duty. There are situations
involuntary act in this context… means an act which is where the failure to act is justified, such as if the person
done by the muscles without any control by the mind, did everything they could in the circumstances, or if it
was impossible to fulfill the duty. For example, if
- Exceptions to the act requirement someone sees a person drowning but cannot swim, they
a. Crimes of omission cannot be held responsible for not rescuing them.
b. Crimes of possession Additionally, if there is a valid reason for not acting,
c. Crimes of situational liability such as a fear of personal harm, the failure to act may
be justified and not a breach of duty.
The term "situational liability" in criminal law refers to
a legal principle where an individual can be held
responsible for a crime committed by someone else if 4. The defendant’s failure to act must be
they were in a particular situation that created a risk of voluntary
harm or danger.
For example, if a person has a duty to care for a child
Key requirements for criminal liability to ensure but becomes unconscious due to a medical emergency,
the net of criminal liability is not spread too far and the child is injured or dies as a result, the
unconscious person cannot be charged with a criminal
offense.
1. The conduct element of the crime in
question must be capable of commission by
omission 5. The harm must be caused by the omission.

In order for a defendant to be convicted of a crime for

2. The circumstances must be such as to failing to act, the prosecution must prove that the
create a legal duty to act defendant's failure to fulfill a duty of intervention
If someone fails to act and this leads to harm or death, directly caused harm.
they can only be prosecuted if they had a legal duty to
For example, in the case of Morby, a parent was direct cause of a particular harm or injury. Some
charged with manslaughter for failing to call for medical guidelines regarding it
help for their sick child, who subsequently died of
- Defendant is responsible for all the
smallpox. However, the court overturned the conviction
consequences of his wrongful act
because the prosecution could not prove that prompt
- Victims injury was foreseeable to the
medical attention would have saved the child's life. In
defendant.
other words, the defendant's failure to act may not
have caused the child's death, since the child may have
died regardless of medical attention. Therefore,
without proof of causation, a defendant cannot be THIRD party intervention: independent act
convicted of a crime for failing to act. There are, however, certain aspects of causation
doctrine which part company with this restatement. For
example, the courts will sometimes treat a later
What is meant by circumstances? voluntary act of a third party, or the victim, as breaking
the chain of causation between act and result if it was
The definition of certain crimes requires proof that independent and a sufficient cause of the result, even if
certain circumstances existed which convert what it was perfectly foreseeable or indeed foreseen.
would otherwise be an innocuous act into a criminal
act. Obvious examples include rape and assault, both  PRINCIPLES GOVERNING CAUSATION
of which can be committed only where the victim does
not consent. Absence of consent, for these crimes, is As Clause 17 of the Draft Criminal Code Bill 1989
indicates, causation involves a two-part inquiry.
therefore a circumstance which can convert an
ordinarily quite lawful act (sexual intercourse or a
simple touching) into the actus reus of a crime.
Factual cause

TOPIC 4- ACTUS REUS: Hart and Honoré describe a factual cause as:
CONSEQUENCES AND THEIR CAUSES
an event or act which ‘makes the difference’
between something happening and something not
happening.
WHAT IS MEANT BY RESULT CRIMES IN CRIMINAL LAW
(Causation and the law (1959))
For example, murder is a result crime because the
offender must cause the death of another person to be The common way of representing this is:
charged with this offense. Similarly, arson is a result
crime because the offender must set fire to another
person's property to be charged with this crime.  an act is the factual cause if the
consequence would not have happened but
Examples of conduct crimes include assault, battery,
and drug possession. In these cases, the crime is based for that act
on the act itself, rather than a specific outcome.
 an omission is the factual cause if the
consequence would not have happened but
Chain of causation for the defendant’s failure to act as they
should have done.

A chain of causation is a legal principle used to

determine whether an individual's actions were the
 - White case 1910: example, if someone is charged with causing death by
- Morby 1882 dangerous driving, it is not enough to show that they
were driving dangerously and caused a death - the
prosecution must prove that the death was a direct
- Dyson case: a boy’s death due to being beaten result of their dangerous driving, and not something
by his father; the issue of meningitis; the court that would have happened even if they had been
held that his father accelerated the process, driving carefully.
thus he was convicted of manslaughter.

- Dalloway case 1847

The general framework for imputing cause
There are two types of causation that are typically Case of pagett:
recognized in criminal law: "but-for" causation and
proximate causation. "But-for" causation asks whether,
but for the defendant's actions, the harm would not
What is meant by substantial cause?
have occurred. Proximate causation, on the other hand,
considers whether the defendant's actions were the The defendant's actions must have had a significant
legal and factual cause of the harm in question. impact to be considered the legal cause, even if they
were not the only cause. The law doesn't consider
unimportant causes.
A number of cases where doctors have been prosecuted
In McKechnie case, the defendant beat an elderly man
- R v Moor who had a duodenal ulcer. Doctors didn't operate on
- Adams 1957 the ulcer due to the effects of the beating. The ulcer
later burst and caused the man's death. The defendant
argued the ulcer, not his attack, caused the death, but
To be the factual cause of a criminal harm, the court ruled that the defendant was still responsible
the causal connection does not have to be because the doctors' decision was due to the beating.
The defendant's actions had a significant impact on the
direct. In a case called Mitchell, a man punched
outcome, so he was legally responsible.
another man who accused him of cutting in line at a
post office. The man who was punched fell onto an 89-
year-old woman, breaking her leg. She later died from a
blood clot in her lungs. The person who punched the The first is that, where more than one cause operates,
man was found guilty of manslaughter because his as it did here, the initial wrongful act of D is still the
actions were a significant factor in causing the woman's legal cause if it is still a substantial and operative
death. Even though he didn't directly cause her death, cause; in other words, if it is still strongly influential on
he played a major role in it happening. the outcome. The second is that a later causal
contribution (here the failure to operate on the burst
Legal or proximate cause ulcer) will not prevent the initial cause being still
operative unless it is independent of the initial act.
Adam rapes eve, her father kills her due to honour,

- From this example you can understand what

does legal cause mean. Death precipitated by the victim’s vulnerable physical
- He is to blame for the rape not the death. or mental condition
Only wrongful acts and omissions can constitute a In some cases, the victim's death may be caused by a
legal cause of a criminal harm combination of the defendant's unlawful act and the
victim's own physical or mental vulnerability. For
To be guilty of causing a criminal harm, the harm must
example, in the Hayward case, the defendant
be a result of the defendant's wrongful conduct. For
threatened his wife, who had an underlying condition
that made her vulnerable to a heart attack. She died
from a heart attack, but the defendant was still
responsible for her death. This principle is known as the - Medical interventions
"eggshell skull rule," which means that the defendant is
still responsible for the harm caused to the victim, even Cheshire 1991 case: d shot v in abdomen; poor
if the victim has a pre-existing condition that makes treatment by doctors; the court held D responsible by
them more vulnerable to injury or death. In other saying that doctor’s intervention was not independent.
words, the defendant must take the victim as they find
them, and their pre-existing conditions cannot be used
to deflect the defendant's responsibility. Supervening acts of the victim
exacerbating the harm

Supervening acts of third parties

- Holland 1841 case: amputation of a finger to
Acts of third parties can, on occasion, break the chain of
prevent tetanus; D was held responsible.
causation linking a but for cause to a consequence.

If a third party contributes to the harmful result, it

won't break the chain of causation if the defendant's - Blaue case 1975: loss of blood and refusal for
original act was still a substantial and operative cause. the transfusion due to religious concerns; the
In Smith 1959, the victim died of a stab wound to court held take the victim as you find him.
the lung but also received bad treatment, which
contributed to his death. However, the defendant was
still the legal cause of the victim's death because his Escape attempts
actions were still a substantial and operative cause of
- Roberts 1972: v jumped out of moving car
the harm at the time of death.
fearing sexual assault; D was held responsible

- Acts of third parties reacting to a danger

caused by A’s act Suicide
In Dhaliwal  [2006] EWCA Crim 1139, a case involving
suicide following a long period of domestic abuse, the
In the Pagett case, the defendant used his Court of Appeal put it this way:
pregnant girlfriend as a human shield and shot at the
where a decision to commit suicide has been triggered
police. The police returned fire and killed the girlfriend.
by a physical assault which represents the culmination
The defendant argued that the police, not him, caused
of a course of abusive conduct, it would be possible…to
the girlfriend's death. But the Court of Appeal disagreed
argue that that final assault played a significant part in
and held that the defendant was still responsible for her
causing the victim’s death.
death. The court stated that if a reasonable act of self-
defense against the defendant's actions causes the - R v Wallace 2018
death of a third party, the defendant is still criminally
responsible for that death. Acid throwing; suicide; the court did not charged D with
Murder rather s.29. WHY?

Raise questions on it such as foreseeability of harm;

something else etc.
BREAKING THE CHAIN OF CAUSATION However, an intervening event will not break the chain
of causation if the risk of it happening was created by or
New acts intervening increased by D’s act. For example, if D Leaves V
unconscious by the side of the road and V later
An intervening act of a third party will break the chain
stumbles on to the road and into the path of a passing
of causation if it is:
car (Corbett [1996] Crim LR 594), or if D Leaves V on the
1. Voluntary beach and the tide comes in and drowns V, or if D
2. independent of the initial act, and Leaves V in a cemetery and a wild animal attacks V (The
3. sufficient in itself to cause the harm Harlot’s Case (1560)), D will remain causally
suffered by the victim. accountable for the resulting harm, death or serious
injury, as the case may be.
People v Elder (1894). D struck V and V collapsed on the
ground. Then a bystander, B, who had happened upon
the scene and was not part of any plan to hurt V,
stepped up and kicked V, killing him. D was not guilty of
homicide. Although D was a factual cause of the death,
the independent and voluntary act of B broke the chain Topic 5- MENS REA: CRIMINAL
of causation.
FAULT
- Pagett and Cheshire cases: the acts of police
officers and the medics

New intervening acts of the victim

Objective fault?
Strict liability offenses: These offenses do not require
The position now, following Kennedy (No 2) [2007] the prosecution to prove that the defendant had a
UKHL 38, is that the test is not whether the victim’s act particular mental state, such as intent or knowledge.
was foreseeable but whether it was voluntary. A free For example, traffic offenses such as speeding or
and informed choice to self-inject the drug breaks the running a red light are considered strict liability
chain of causation. It would not be free and informed if offenses.
the victim lacked mental capacity or did not know of the
strength of the drug (the victim in Kennedy did). Recklessness: Recklessness is an objective standard of
fault that involves consciously disregarding a substantial
Intervening events and unjustifiable risk. For example, a person who fires a
gun into a crowd of people without knowing who they
An intervening event will break the chain of causation if might hit would be considered reckless.
it is:
Negligence: Negligence is also an objective standard of
1. Abnormal fault that involves failing to exercise reasonable care
2. independent of D’s act (i.e. a complete under the circumstances. For example, a driver who
coincidence), and runs a stop sign and hits another car because they were
3. sufficient in itself to cause the death or other not paying attention would be considered negligent.
harm.

For example, in Bush v Commonwealth (1880), V died

of scarlet fever contracted in hospital following D’s Subjective fault?
attack. D was held not to be the cause of death.
Specific intent crimes: These offenses require the
prosecution to prove that the defendant intended to
commit the crime. For example, burglary, which
involves breaking into a building with the intent to
commit a crime, is a specific intent crime.
Knowledge: Some offenses require the prosecution to as probable or highly probable and yet carried on
prove that the defendant had knowledge of certain regardless, this was not the same as intending the
facts. For example, insider trading involves using consequence. However, if the evidence showed that D
confidential information to make trades on the stock foresaw the consequence as virtually certain, the
market, and the prosecution must prove that the inference that D intended it might be ‘irresistible’.
defendant knew the information was confidential.
In Nedrick [1986] 1 WLR 1025, on facts similar to
Recklessness or negligence with regard to a particular Hyam, Lord Lane CJ put it this way:
result: Some offenses require the prosecution to prove
Where a man realises that it is for all practical purposes
that the defendant was aware of a substantial and
inevitable that his actions will result in death or serious
unjustifiable risk of harm, even if they did not intend to
harm, the inference may be irresistible that he intended
cause the harm. For example, manslaughter might be
that result, however little he may have desired or
charged if a person caused someone's death while
wished it to happen.
driving recklessly, even if they did not intend to cause
the death.

WOOLIN DIRECTION
Intention? (Mens rea-subjective fault) Woollin threw his infant son across the room in a
moment of fury, and the son’s skull fractured and he
- Basic and specific intent died. Woollin was charged with murder. The
prosecution accepted that Woollin did not act in order
- Murder and manslaughter: what does an to kill or cause serious injury, but nevertheless argued
intention mean? that he intended at least serious injury. Woollin was
Hyam v DPP 1975: whether he was guilty of murder or convicted of murder. He appealed on the basis that the
manslaughter; petrol bomb; killing of two children as a trial judge misdirected the jury on the meaning of
result; convicted of murder; the court held she must intention.
have likely to intended those consequences; criticism on If someone is charged with murder, the jury can't find
decision; it was later overruled. them guilty unless they believe that the person
intended to cause serious harm or death and knew it
was highly likely to happen. The jury needs to look at all
it was inconsistent with s.8 of the criminal justice act the evidence to make this decision.
1967.

Section 8 states that the jury:

Woolin direction draws a clear line between intention
This means that a person cannot be automatically held and recklessness.
responsible for the outcome of their actions just
because that outcome was a likely and foreseeable A succinct restatement of the present state of the
result of their actions. There must be some evidence law as to the meaning of intention and the guidance
juries are to be given appears in a Law
that the person intended or anticipated the outcome in
Commission Report:
question before they can be held accountable for it in a
legal sense. (1) A person is taken to intend a result if he or she acts
It should instead make the decision about whether D in order to bring it about.
did have such an intention or foresight: (2) In cases where the judge believes that justice will
Subsequent to this case, first in Moloney [1985] AC 905 not be done unless an expanded understanding of
and then in Hancock and Shankland [1986] AC 455, the intention is given, the jury should be directed as
House of Lords revisited the meaning of intention. In follows: an intention to bring about a result may be
both cases, the House of Lords, overruling Hyam, stated found if it is shown that the defendant thought that the
that if it could be shown that D foresaw a consequence result was a virtually certain consequence of his action.
(LC 304: Murder, manslaughter and infanticide (2006),
para.3.27)
- The risk taken must be unreasonable in the
Para 1 direction is commonly known as direct intention circumstances known to the defendant.
while para 2 direction is known as indirect intention or
oblique intention. Lord Justice Lane in Stephenson explained the
position as:

A person is considered reckless if they intentionally do

Recklessness? (subjective fault- men’s rea) something, knowing there is a risk of property damage.
But not every risk is reckless - it's only reckless if it's
- Awareness of the risk is necessary unreasonable to take that risk given the situation.
Cunningham case 1957: leakage of gas affecting the
occupants; his liability was quashed; the court said
- Objective form of recklessness
When defining a crime, "malice" must be understood as
either having the intention to cause harm or being Caldwell case 1982: set fire to a hotel while drunk;
reckless and taking a risk that harm may occur. It convicted of criminal damage
doesn't necessarily require a desire to harm someone
Lord diplock said;
specifically.
A person is reckless for the purpose of criminal damage
This definition was adopted in Briggs (Note) [1977] 1 if:
WLR 605, a case on criminal damage to a car caused by
overenthusiastic wrenching of the door handle. (1) he does an act which in fact creates an obvious risk
that property will be destroyed or damaged and
- Being aware of a risk does not always require a
conscious thought process
(2) when he does that act he either has not given any
Parker case 1977: broke the office phone in frustration; thought to the possibility of there being such risk or has
the court upheld the fine recognised that there was some risk involved and has
nonetheless gone on to do it.
In Stephenson 1979: a homeless burned the haystack;
convicted of criminal damage; the judge said, ‘all kinds This definition became the standard definition for all
of reasons which make a man close his mind to the crimes of recklessness; considered as Lord Diplock’s
obvious fact – among them may be schizophrenia, that new test of recklessness.
he is a schizophrenic’. The jury convicted and D
appealed.
Negligence? (Objective fault)
Brady case 2006: drunk man climbed and fell on the
dance floor causing serious injuries to V; charged under
All cases of recklessness are automatically also cases of
s.20 OAPA 1861
negligence.
Directing the jury as to recklessness, the judge
said: The Law Commission’s definition of negligence makes
this clear. It occurs where a person ‘fails to exercise
…where there is no issue of intoxication the test such care, skill or foresight as a reasonable man in his
requires that the defendant should be aware of a situation would exercise’.
risk and go on to take it, the risk being of injury.
 Correspondence principle
TOPIC-6: COINCIDENCE OF ACTUS In other words, a person cannot be found guilty of a
crime if they did not have the intention to commit it,
REUS AND MENS REA and the act that they committed does not match the
elements of the crime.

- Theft etc
Temporal coincidence
Temporal coincidence refers to the requirement in Transferred malice: a qualification to the
criminal law that the elements of a crime, such as the correspondence principle
Actus reus (the guilty act) and the Mens rea (the guilty
mind), must occur at the same time. In other words, It applies when a person intends to commit a crime
there must be a temporal connection between the against one person, but instead causes harm to another
criminal act and the criminal intent. person. In such cases, the law transfers the person's
criminal intent from the original target to the actual
For example, if someone plans to commit a murder but victim.
then changes their mind and does not carry out the act,
they cannot be charged with murder because there was For example, if someone intends to shoot and kill
no temporal coincidence between the intent to kill and Person A, but instead accidentally shoots and kills
the actual act of killing. Similarly, if someone Person B, the law can apply the doctrine of transferred
accidentally kills someone while committing a lawful malice. The person intended to commit a crime against
act, such as driving a car, they cannot be charged with Person A, but the act was still unlawful and the intent
murder because there was no intent to commit the act. can be transferred to the actual victim, Person B.

(Lord Mustill in A-G’s Reference (No 3 of 1994) [1998]

AC 245 at 262.)
- Avoiding the coincidence requirement

Miller case 1983: the act that caused fire was

unaccompanied by Mens rea; but D’s omission to put R v Grant case 2014: missed the real victim; harmed the
out the fire coincided actus rea and mena rea. (it means other two people; charged with grievously bodily harm
omission to do an act can coincide) s.18 of OAPA.

Fagan v MPC case 1969: continuing act doctrine; police

and foot Pembliton case 1874: D threw stone on X; missed and
- The supposed corpse cases hit window; charged with criminal damage; the
conviction quashed on the grounds of enforceability of
Meli v The Queen [1954] 1 WLR 228, first beaten; then damage.
disposed of at cliff; the court convicted them with
murder.

Church 1966: struck on head; considered dead; threw

the body in river;

Put simply, D had the mens rea for manslaughter when

he first struck V. V died following a series of further acts
on D’s part, none of which broke the chain of causation.
 - What does intention mean
Topic 7- CRIIMNAL HOMICIDE
In the context of murder, it means that a person
intended to cause death or serious harm when they
committed the act. If the result was not death or serious
The forms of criminal homicide harm, the person would consider their action a failure.
Murder - Directing the jury on the Mens rea for murder
1. Voluntary manslaughter The judge must give the jury the standard direction.
- Loss of self-control
- Diminished responsibility The standard direction will be something like this:
- Suicide pact

2. Involuntary manslaughter (Based on Woollin 1999)

- Reckless manslaughter There are two important things to be noted about this
- Gross negligence manslaughter direction. The jury is allowed to find intention if the
- Constructive manslaughter defendant foresaw death or serious injury as almost
certain, but they are not required to. If the defendant
only foresaw a high probability of harm, they can only
Common elements in criminal homicide? be found guilty of manslaughter.

1. A killing

It requires an act or, in the case of murder and gross What has to be intended/ MENS REA
negligence manslaughter, an omission in breach of duty.
The Mens rea  for murder is either an intention to kill
Three principle ingredients of killing are the victim or an intention to cause grievous bodily harm
1. Act, or omission in breach of duty to the victim. This was made clear in Vickers  [1957] 2
2. Death of a human being QB 664 and confirmed in Cunningham  [1982] AC 566,
3. Unbroken causal link between act and death in which the defendant repeatedly hit the victim over
the head with a chair, which caused his death.

2. An unlawful killing

A killing is lawful if it is accidental; that is, not

 Voluntary manslaughter?
blameworthy (see Illustration 1(e)). It is also lawful if a Voluntary manslaughter is a type of homicide where the
valid defence operates: for example, self-defense. offender had the intent to cause death or serious harm,
but their action was taken in response to a provocation
or under circumstances that would cause a reasonable

Murder? person to lose self-control. In other words, the offender

intentionally caused the victim's death, but they did so
- Intention to kill or cause grievous bodily harm under mitigating circumstances that reduce the severity
of their offense.
Intentional killing, whether done in the heat of the
moment or with compassion, is considered murder. In - Provocation
the case of Inglis [2011] 1 WLR 1110, a mother was Provocation is a legally recognized defense that may
convicted of murder for intentionally injecting her son mitigate murder to voluntary manslaughter, which is
with heroin as an act of compassion while he was in a committed in response to a reasonable and adequate
persistent vegetative state. provocation. Provocation is an act, word, or
circumstance that could cause a reasonable person to cumulative domestic abuse, even if there is a significant
lose self-control and act in a way that they would not delay between the abuser’s last act and the victim’s
have otherwise done. reaction. However, the judge should always direct the
jury that, as a matter of pure evidence, the longer the
An example of provocation could be a situation time lag between the trigger and the killing, the less
where a person witnesses their spouse or partner being likely it is that the killing is attributable to D’s loss of
physically or sexually assaulted by another person. This self-control.
could be a reasonable and adequate provocation that
could cause a person to lose self-control and respond
with violence, even if they did not have the intent to a. First qualifying trigger
cause death or serious harm. In such a situation, the
offense may be mitigated to voluntary manslaughter. Fear of serious violence from the other person; there
should not be over reaction to fear says jury.
- Loss of control

Loss of control is a legal defense that can be used to

mitigate murder to voluntary manslaughter in certain W comes across H viciously beating C, their infant
circumstances. It occurs when a person loses control of child. W loses control and stabs H through the heart
their actions due to a situation that would cause a with a kitchen knife, killing him.
reasonable person to do the same. This loss of control
must be sudden and temporary, and it must have been
caused by a qualifying trigger. There are two defences W can run here. The first is self-
defence, which is available (like loss of control) where
An example of loss of control could be a another person is subject to the attack or threatened
situation where a person is subjected to prolonged and attack. The second is loss of control. By raising the
severe domestic abuse and one day they snap and kill evidence needed to run self-defence, W may avail
their abuser. herself of loss of control if, for example, the jury reject
the former defence on the ground that the force used
Section 54 of the act states the guiding was unreasonable and/or disproportionate.
principles of the new defence: 
b. Second qualifying trigger under
Where a person (‘D’) kills or is a party to the killing of S.55 (4)
another (‘V’), D is not to be convicted of murder if – - Circumstances of extremely grave character
- Cause D a sense of being seriously wronged
- D’s acts  and omissions  in doing or being a
party to the killing resulted from D’s loss of self-
control,
- the loss of self-control had a  qualifying trigger, Other restrictions on the use of the qualifying
and triggers
- a person of D’s sex and age,  with a normal
Section 55(6) of the Coroners and Justice Act 2009
degree of tolerance and self-restraint and in
states:
the circumstances of D, might have  reacted in
the same or in a similar way to D. If D is at fault in causing V to use violence – for example,
D strikes the first blow, or says or does something
1. The subjective element provocative (e.g. commits a sexual assault on V) which
triggers a violent or otherwise abusive reaction from V –
Definition of loss of self-control in Duffy 1949: the
D is not disabled from using V’s conduct as a qualifying
accused being so subject to passion as to make him or
trigger (Johnson [1989] 1 WLR 740). However, if D does
her for the moment not master of his or her mind.
so in order to give themselves an excuse to kill V when
As Ahluwalia made clear, it is quite possible for a loss of V retaliates, then D is disabled. This was confirmed in
control to occur in certain cases, such as those involving Bowyer [2013] EWCA Crim 322.
 c. Sexual infidelity 3. Evidence and procedure

Sexual infidelity refers to the act of one partner in a The relative functions of judge and jury are described in
romantic or sexual relationship engaging in sexual s.54(5) and (6) of the Coroners and Justice Act 2009:
activities with someone other than their partner
If a murder case includes enough evidence that suggests
without the consent of their partner. It can be a
the partial defence of loss of control may apply, the jury
sensitive issue that often leads to emotional distress
should assume that the defence is valid unless the
and relationship breakdowns.
prosecution can prove beyond reasonable doubt that it
It can act as a qualifying trigger is not.

The case of Clinton 2012: the jury said; sexual infidelity - Diminished responsibility: S.2 of the homicide
which prompts a loss of self-control due to sexual act 1957
jealousy, possessiveness or family honour is not a
Diminished responsibility is a partial defence to murder
qualifying trigger. However, if the sexual infidelity
where the defendant can show that they were suffering
provides the context within which another trigger
from an abnormality of mental functioning that
operates, it must be considered.
substantially impaired their ability to understand the
nature of their conduct, form a rational judgment or
exercise self-control at the time of the killing. An
2. The objective element
example could be a person with severe depression or
To use the new partial defense of loss of control, the psychosis who kills someone while experiencing
defendant's reaction must be consistent with what an delusions or hallucinations.
ordinary person of their sex and age, with a normal
The defence was reconfigured by S.52 of the coroners
degree of tolerance and self-restraint, might do in the
and justice act 2009.
same circumstances. The circumstances that the jury
can consider are those that any ordinary person might Section 52 of the Coroners and Justice Act 2009
experience, such as their race, religion, gender, sexual amends s.2(1) of the Homicide Act 1957, as follows:
preference, physical appearance, and past events and
experiences. Mental disorders or personality disorders
that only affect the defendant's ability to control (1) A person (‘D’) who kills or is a party to the killing of
themselves cannot be considered. This was confirmed another is not to be convicted of murder if D was
in R v Willcocks (2016). suffering from an abnormality of mental functioning
which –

The defendant cannot rely on the defence of loss of

control if their reaction was caused by a personal flaw, (a) arose from a recognised medical condition,
like being intolerant or drunk. People are expected to
have the same level of self-control as other ordinary
people. If the person has a condition that reduces their (b) substantially impaired D’s ability to do one or more
self-control, like a mental illness, they should use the of the things mentioned in subsection (1A), and
defence of diminished responsibility. Age and sex might
affect this objective standard. (Asmelash case 2013)
© provides an explanation for D’s acts and omissions in
doing or being a party to the killing.
 In R v Kay [2017] EWCA Crim 647, the fact that the
defendant, who suffered with schizophrenia, was
(1A) Those things are –
unable to provide evidence that it was his schizophrenia
(a) to understand the nature of D’s conduct; that provided the trigger for the killing rather than the
fact that he was acutely intoxicated at the time meant
(b) to form a rational judgment; he was unable to rely on the defence.
(c) to exercise self-control. If someone is a chronic alcoholic, they may be able to
use it as a defense if they commit a crime. This is
because alcoholism is a medical condition that can
We will now look at the elements of diminished reduce their ability to control themselves and make
responsibility. rational decisions. However, this defense only works if
the alcoholism played a role in the crime. In Mr. Kay's
case, his alcoholism alone was not enough to use this
1. Abnormality of mental functioning arising defense because he was just drunk and his
from a recognised mental condition schizophrenia was the main cause of his behavior.
It includes as per WHO: In the Wood case, a homeless alcoholic killed someone
while drunk. The judge in the trial wrongly told the jury
that the defendant's drinking had to be completely
 Arrested or retarded mental development.
involuntary for it to count as a medical condition that
 Depression (Gittens [1984] QB 698). could be used as a defense. The defendant appealed
 Bipolar (Inglis  [2010] EWCA Crim 2637). and the judge's idea was rejected. It was decided that
the defendant's alcoholism could still be considered a
 Paranoid schizophrenia (Sutcliffe, The defense even if not every drink he had that day was
Times, 30 April 1981). involuntary.

 Brain damage. (Hendy [2006] EWCA Crim The new law requires that a mental condition must
explain why a defendant committed a killing. If their
819; Wood [2008] EWCA Crim 1305).
ability to reason, understand, or control themselves was
 Psychopathy (Byrne [1960] 2 QB 396). impaired due to the condition, it can be a defense.
However, a psychopath cannot use this defense
 Paranoid personality disorder
because they have normal cognitive abilities and self-
(Martin (Anthony) [2001] EWCA Crim control.
2245). According to Section 52(1B) of the Coroners and Justice
 Postnatal depression (Reynolds [1988] Act 2009, a mental condition can be a defense if it is a
significant factor in causing the conduct leading to the
Crim LR 679). killing. The jury decides if it is a valid defense, even if
there are multiple causes involved, which could be
2. Alcohol and drugs
difficult to determine.
In Dowds  [2012] EWCA Crim 281, (2012) MHLO
In Golds (2014), the Court of Appeal preferred the
18, the Court of Appeal concluded that voluntary acute
second interpretation, ruling that the defendant’s
intoxication, whether from alcohol or another
mental abnormality must have had a very significant
substance, is not capable of founding diminished
effect on his ability to understand/control himself, etc.
responsibility.
Whether the impairment crossed this threshold is a
matter for the jury. (Important)
So a person who kills due to the combined effect of
intoxication and a recognised mental condition may still
have a defence (Dietschmann [2003] 1 All ER 897
Involuntary manslaughter? Constructive manslaughter is the correct charge
when there is evidence that death resulted from an
Involuntary manslaughter can be one of three unlawful and objectively dangerous act of D, but
types: there is insufficient evidence that D intended (or
foresaw) death or serious injury or was grossly
negligent as to the risk of death.
 ‘foresight’ or ‘reckless’ manslaughter
 ‘unlawful act’ or ‘constructive’ manslaughter Illustration 7 A hits B with a single punch to the
jaw. B dies as a result of a hidden weakness in
 gross negligence manslaughter (causing his skull which implodes under the force.
death through lack of care).
This is constructive manslaughter; neither of the
other two forms apply since A neither foresaw
death nor grievous bodily harm, and nor was he
- Overlap between forms of involuntary grossly negligent as to the risk of death.
manslaughter
Gross negligence manslaughter is the correct
Hyam (Hyam [1975] AC 55) and Smith (Smith [1961] AC charge where there is insufficient evidence that D
290) both killed in the course of doing something foresaw death or serious injury resulting from their
extremely dangerous. In the former case, Hyam threw a conduct and there is no unlawful and dangerous act
upon which to graft liability. It is most appropriate,
petrol bomb through V’s letter box, while, in the latter
therefore, for those who kill in the course of
case, Smith drove his car extremely dangerously in an performing a lawful activity in a criminally careless
attempt to dislodge a police officer trying to arrest fashion, or who omit to do something they should
him. Both victims were killed. The House of Lords have done. It covers, for example, parents who
found both defendants had been properly convicted of neglect their children, train drivers who ignore
murder. If these cases came to court today, the signals, electricians who forget to earth their
outcome would be different. Murder requires an circuits, builders who break building regulations,
surgeons who perform incompetent surgery on their
intention to kill or cause grievous bodily harm. And
patients, bus drivers who fall asleep at the wheel
what Hyam and Smith did, although wicked and and so on.
dangerous, was not done in furtherance of an intention
to kill or cause serious injury. They could, however, be
charged with:
 Constructive manslaughter
Constructive manslaughter is a type of manslaughter
 reckless manslaughter, if the prosecution could
where the defendant did not intend to cause death or
prove foresight of death or serious injury
serious harm but was engaged in an unlawful and
dangerous act or omission that caused death. The term
 gross negligence manslaughter, if, irrespective
"constructive" means that the defendant is considered
of whether the prosecution could prove
responsible for the death even though they did not
foresight of death or serious injury, the jury
intend it because their actions were so dangerous that
considered their actions to be grossly negligent
they should have foreseen the risk of harm. Examples of
as to the risk of death
constructive manslaughter include reckless driving that
results in a fatal accident or supplying drugs that lead to
an overdose.
 constructive manslaughter, since both
defendants killed in the course of doing 1. An act: actus reus
something illegal and dangerous.
To be guilty of constructive manslaughter, the cause of
death must be an act. This is one of the few crimes
which cannot be committed by omission. Omissions
- Distinctiveness are not sufficient even where there is a duty of care.

Example
In Lowe [1973] QB 702, D was initially charged If V self-injects and this causes V’s death, D (who
with constructive manslaughter for the death of his supplied the drugs) is not guilty of manslaughter. V’s
child, but the Court of Appeal quashed his free and informed act breaks the chain of causation
conviction because there was no evidence of an act (Kennedy (No 2) [2007] UKHL 38).
that caused the child's death. Instead, the charge
should have been gross negligence If, however, D does the injecting then D will be liable for
manslaughter. The prosecution's decision to constructive manslaughter if this results in V’s death.
charge constructive manslaughter was seen as an
Another knotty problem concerns acts of the defendant
attempt to avoid having to prove gross negligence.
towards V, which triggers V’s suicide. What test of
2. An act which is criminally unlawful causation is to be applied here? Is it ‘take your victim
as you find them?’, as in Blaue; a reasonable foresight
In Scarlett [1993] 4 All ER 629, D, a publican, ejected a
test, as in Roberts; a daft or disproportionate reaction
drunk from a public house, who then fell backwards
test, as in Williams; or a voluntary act test, as in
down the steps and died following a fractured skull. D’s
Kennedy? In Wallace (see Section 4.3.6), the Court of
conviction for constructive manslaughter was quashed
Appeal sidestepped this question, ruling that the
on the basis that he feared the drunk was about to
question to be considered in all cases where more than
attack him and so his use of force was lawful self-
one cause contributed to the death is whether ‘the
defence. This meant that he had not committed the
accused’s acts can fairly be said to have made a
core offence that constructive manslaughter requires.
significant contribution to the victim’s death’ .
(Important cases)

3. constructive manslaughter and crimes of

negligence: a qualification
Mens rea for constructive
The House of Lords ruled in Andrews [1937] AC 576 that
constructive manslaughter can only be charged for manslaughter
inherently criminal acts. So, if the only criminal act is
Mens rea, or the mental element, for constructive
something like speeding or driving carelessly, the
manslaughter is recklessness. The defendant must have
defendant cannot be charged with constructive
foreseen that their conduct could cause harm, but
manslaughter. The prosecution must instead prove
nevertheless proceeded with their actions. They did not
gross negligence on top of the initial act of carelessness
necessarily intend to cause harm, but their recklessness
or dangerous driving, which is required for a charge of
led to the death of the victim.
gross negligence manslaughter.

6. Reform proposals
4. the criminal act must be dangerous
- Gross negligence manslaughter (manslaughter
In this case, Edmund Davies LJ gave the following by breach of duty)
authoritative definition of what counts as a dangerous a. Duty of care
act:

the act must be such that all sober and reasonable

Point 7 later
people would inevitably recognise must subject the
other person to, at least, the risk of some harm resulting
therefrom, albeit not serious harm.

In Watson [1989] 1 WLR 684, D committed burglary

on a house occupied by V, an 87-year-old man who
suffered from a heart condition; the encounter was
dangerous court said in its decision.

5. The dangerous act must cause death

TOPIC 10- DEFENCES 1: FAILURE OF
PROOF No act is punishable if it is done involuntarily: and an
involuntary act in this context – some people nowadays
prefer to speak of it as ‘automatism’ – means an act
which is done by the muscles without any control by the
mind...
# Involuntary conduct or Automatism  FOLLOWING ARE THE TWO FORMS OF
Involuntary conduct refers to actions that are AUTOMATISM
performed without conscious control or awareness.
These actions are often the result of physical or mental - Physical involuntariness
conditions that the individual has no control over. For example, in Burns V Bidder [1967] 2 QB 227, a
driver was charged with the offence of failing to accord
precedence to a pedestrian on a crossing. His defence
For example, someone who suffers from a seizure was that his action was involuntary, as he had suffered
disorder may have involuntary conduct during a seizure, brake failure. The court held that if this had happened
where their body moves uncontrollably without their without any fault on the part of the driver – for
conscious control. Similarly, someone who sleepwalks example, because the defect was not the result of poor
may perform actions without being aware of them or maintenance – then he was entitled to an acquittal.
having conscious control over them. Even a strict liability offence, which this was, requires
voluntary action to constitute the actus reus.
It does not require both actus reus and mens rea.

Hill v Baxter 1958: accident with another car; the court

- Automatism
convicted the D and said;
It occurs when the accused is effectively unconscious
In Hill v Baxter, the Court of Appeal recognized that
while committing the offence.
criminal responsibility, even for strict liability offenses,
requires a voluntary action. They explained that in The case of Bratty?
certain circumstances, such as when a driver suffers a
stroke or epileptic fit, they may not be considered to be
driving at all due to a state of unconsciousness. The case of Quick 1973: the nurse; was diabetic; bad
Similarly, if a driver is struck by a stone or attacked by a combination of food led to hypoglycemia; attacked a
swarm of bees, this can be seen as an intervening event patient; the judge convicted him with assault; the judge
that breaks the chain of causation between the driver's said it was triggered by insulin and not an already
actions and the resulting harm. mental condition rather caused by external factor. It
You will understand from the above statement that the was a self-induced condition.
defence may take one of two forms: Lawton LJ explained it as:

…a malfunctioning of the mind of transitory effect

 a loss of physical control over one’s conduct caused by the application to the body of some external
prompted by some external event, such as a factor such as violence, drugs (including anesthetics),
bee attack alcohol or hypnotic influences.
 a loss of mental control due to a trigger such as
a stroke or epileptic fit.

The criminal law has traditionally called both instances

‘automatism’. In the words of Lord Denning in Bratty V
A-G of Northern Ireland [1963] AC 386:
Three reasons why success rate in this defence is
difficult
3. Insane automatism
1. Strict liability offences
Automatism can be caused by loss of physical or mental
In Neal v Reynolds, the defendant was charged with control. In mental control cases, the defendant claims
failing to give way to a pedestrian on a crossing. The they were unaware of their actions due to a mental
defendant argued that this was involuntary because the condition. This can be confused with insanity, which is
pedestrian had unexpectedly dashed out in front of when a person is unable to distinguish right from
him, leaving him no time to react. However, the court wrong. It's important to distinguish between the two
rejected this defense, stating that the defendant was because an insanity defense is different from an
still in control of his vehicle and therefore not acting automatism defense.
involuntarily. Although the defendant was not at fault
for the pedestrian's actions, this did not excuse the
offense of failing to give way, which did not require # Insanity
proof of fault.
The defense of insanity is a legal defense used by a
defendant who claims that they were unable to
In Broome v Perkins (1987) and A-G's Reference (No 2 distinguish right from wrong when committing a crime.
of 1992), the defendants were charged with dangerous To successfully plead insanity, the defendant must
driving, but they argued that they were not fully prove that they had a mental disease or defect at the
conscious due to circumstances beyond their control. In time of the offense, and that this disease or defect
the first case, the defendant's defense of automatism rendered them unable to understand the nature and
failed because hypoglycemia did not result in a quality of their actions or to distinguish right from
complete loss of conscious control. In the second case, wrong.
the defendant's defense of automatism failed because The case of Daniel M’Naghten 1843: the death of PM’s
the trance-like state induced by the defendant's secretary.; insane delusion.
concentration on the motorway lines did not result in
a complete loss of conscious control. Therefore, in both
cases, the court rejected the automatism defense
- The M’ Naghten rules
because it was only available in situations where there
was a complete loss of conscious control. The rule holds that a defendant is not criminally
responsible if, at the time of the crime, they were
2. Prior fault
laboring under a defect of reason caused by a mental
The case of Quick is enough to understand it. It disease or defect, and as a result, did not know the
indicated towards preventable automatism/ self- nature and quality of their actions or did not know that
induced automatism what they were doing was wrong.

The case of Lipman 1970: - Disease of the mind: understand it later

In Lipman [1970], a man killed his girlfriend while under In the case of Kemp 1957, the defendant attacked his
the influence of LSD. He claimed automatism (lack of wife with a hammer and claimed the defense of
control over his actions), but it was rejected because he automatism due to a temporary lapse of consciousness
voluntarily took the drug. If he had been charged with caused by hardening of the arteries. However, the court
murder, he could have used the LSD as evidence to rejected this defense and ruled that hardening of the
show he did not have the intent to kill, but this defense arteries is a disease of the mind that can cause a defect
was not available for manslaughter. of reasoning or understanding, making the defendant
eligible to plead insanity.
Second limb of the M’Naghten rules If a person becomes voluntarily intoxicated to gain the
courage to commit a specific intent crime, they cannot
The M’Naghten rules also permit the insanity defence
use that intoxication as a defense. This was established
for those who know what they are doing but do not
in the A-G of Northern Ireland v Gallagher case 1963,
‘know that it is wrong’.
where the House of Lords held that if the defendant had
In Windle 1952, a husband killed his suicidal wife at her the intention to commit the crime before becoming
request due to a mental disorder, believing it was right intoxicated, that was enough to establish guilt. It was
to do so. However, he could not plead insanity because not necessary to prove that they had the necessary
he showed an awareness that what he was doing was intention at the time of the actual crime.
legally wrong when he said, "I suppose they will hang
me for this" to the police. This was especially
unfortunate as murder was a capital offense at the - Voluntary and involuntary intoxication
time. distinguished

Intoxication can be voluntary or involuntary and can

result from either drink or drugs. Involuntary
intoxication can be used to negate the mens rea of any
Intoxication crime, but voluntary intoxication can only be used to
negate the mens rea of crimes of specific intent. The
It is for this reason that intoxication – even involuntary Majewski case defines voluntary intoxication as the
intoxication – is not a defence to crimes of negligence intoxication of a person who knowingly consumes an
or strict liability unless it can be presented as one of intoxicant for a non-medicinal purpose, knowing that it
automatism. So, in Blakely and Sutton [1991] RTR 405, is or may be an intoxicant.
D spiked B’s soft drink with alcohol at a party. B,
- Intoxicated mistakes as to a defence
unaware of this, drove home and was stopped by police
on the way and breathalysed. B was properly found Voluntary intoxication cannot take self defence as
guilty of driving with excess alcohol. The fact that he evident in the case O’ GRADDY 1987. WHERE D killed his
was unaware of his condition is no answer to a strict friend.
liability crime, which does not require proof of fault.

When someone commits a crime while under the

influence of drugs or alcohol, whether they are guilty of
the crime or not depends on whether the substance
impaired their ability to understand what they were
doing, or just removed their inhibitions. If the substance
only removed inhibitions, then they are still responsible
for their actions and will be found guilty. This was
established in the Kingston case 1995, where the
House of Lords ruled that a person could not use
involuntary intoxication as an excuse for committing a
crime, even if they would not have done it while sober.

- Restrictions on the use of evidence of

intoxication

If the intoxication is voluntary, it cannot be

used, even for this purpose, with respect to a
substantial class of crimes of mens rea.

- Dutch courage crimes

 According to the amended subsection 76 (6); for
TOPIC 11- AFFIRMATIVE householders encountering an intruder, the question is
DEFENCES not whether the degree of force is disproportionate but
whether it is reasonable

1. Use of force must be necessary

 Public and private defence The use of force can only be considered reasonable if it
is immediately necessary based on the beliefs of the
including self-defence
person using force. If there are other options available,
Section 3 of the Criminal Law Act 1967 (CLA 1967) such as locking a door, then the use of force may not be
provides the basic template for both public and private reasonable.
defence. Section 3(1) reads:
2. No duty of retreat

In the case of Field [1972] Crim LR 435, the Court of

A person is allowed to use a reasonable amount of force Appeal allowed the defence of self-defence. People are
to prevent a crime from happening or to help catch not expected to retreat in the face of unlawful threats
someone who has committed a crime. This includes and are permitted to defend themselves. This is in
using force to arrest someone who has broken the law contrast to the defence of duress, where those subject
or is suspected of breaking the law. to unlawful threats are only excused their coerced
wrongdoing if other options, such as retreat or seeking
police protection, are not available.
- R v Wilkinson 2018: taxi driver; non-payment
issue; dropped the girl back; the court
concluded that his use of force was a retaliatory 3. Provoking an attack
rather than a preventive measure.
In the case of Rashford [2005] EWCA Crim 3377, a
- R V Demario Williams 2020: killing of a youth in
person is not disqualified from using reasonable force to
recovering property; The Court said that the
defend themselves even if they were originally at fault
reasonable force was justified by s.3 where it
in provoking the attack. The defence is available as long
was used to prevent a crime, such as theft or
as the retaliation is of a nature to justify the use of force
robbery, from occurring. It could not be used, as
in self-defence and the violence used is not
here, to recover property once that robbery or
disproportionate to the perceived threat.
theft was completed.
4. Pre-emptive strike
This defence is not available to a person resisting a
lawful arrest. A person can make a pre-emptive strike if they honestly
believe an attack to be imminent, and circumstances
In the Beckford case, the jury must determine if the
may justify this. This principle was established in the
defendant honestly believed he was being shot at and if
case of A-G's Reference (No 2 of 1983) and further
his use of a gun was proportionate to the perceived
emphasized in Beckford (1988). The manufacture and
threat. If the belief was unreasonable, it is irrelevant as
storage of firebombs as a protective measure could
a matter of law but relevant as evidence.
negate liability for an offence of possessing an explosive
s.76(5) substance for an unlawful purpose

This disentitles the defendant from relying on the

defence if the mistake is attributable to self-induced
intoxication.

Meaning of reasonable force? 5. Reasonable force decided objectively

When determining if someone used reasonable force in
self-defense, the court looks at the situation objectively,
 DURESS
not based on the defender's personal beliefs. Duress is a legal defense that allows a person to be
Section 76 of the Criminal Justice and Immigration Act excused from criminal liability for an act they
2008 outlines the approach for determining if the committed under the threat of imminent harm or
degree of force used in self-defense was reasonable. death. In other words, the defendant claims that they
The force used must be proportionate to what the were forced to commit the crime by someone else who
defendant believed was necessary at the time. threatened them with serious harm if they did not
comply.
R V CLEGG: a private solider; first 3 shots; 4th shot killed;
the court held that he killed when the car has passed
meaning there is no more threat. Duress by threats occurs when the defendant commits
a crime because someone else threatened them with
harm or death. The threat must be immediate and
In the case R v Martin, a person named D shot and credible, and the defendant must not have any
killed a burglar because he thought he was in danger. reasonable means of escape.
However, the court ruled that the amount of force used
must be objectively reasonable and it is not enough for An example of duress by threats could be if someone
holds a gun to your head and tells you to steal money
the person to simply believe that they were in danger.
from a store, or they will kill you. In this case, the
Even if the person had a psychiatric disorder and
defendant could argue that they committed the crime
genuinely felt scared, it would not be lawful to shoot a under duress because they feared for their life.
burglar without any evidence of physical threat.
Duress of circumstances occurs when the defendant
commits a crime because of some external
Section 43 of the Crime and Courts Act 2013 adds a circumstance that leaves them no choice. For example,
new subsection to Section 76 of the Criminal. It states if a person is stranded in the wilderness and steals food
that in a householder case, the degree of force used by to survive, they may be able to use the defense of
the defendant is not considered reasonable if it is duress of circumstances. In this case, the defendant
grossly disproportionate in the circumstances as they could argue that they committed the crime because
they had no other option to survive.
believed them to be.
Another example of duress of circumstances is if a
person drives through a red light during an emergency
situation, such as rushing someone to the hospital. In
# Scope of private defence this case, the defendant could argue that they had no
other choice but to break the law to save someone's
1. Available to crimes involving use of force; it is life.
not available to simple driving offences and
most cases of criminal damage, theft or fraud.
In the case of Graham, the defendant was convicted of
murder even though he claimed he was coerced by his
In the R v Riddell case, the defendant used her car to homosexual lover to strangle his wife with a lighting flex
nudge a pursuer out of the way to escape a potential during a drunken incident. The judge allowed the
attack. The trial judge did not allow the defence of self- defense to go to the jury, but they ultimately found him
defence, but instead directed the jury to consider the guilty.
defence of duress of circumstances. The defendant
appealed and won because the use of force in self-
defence was applicable in this case.
Lord Lane CJ proposed a model direction for the jury, right to commit any crime they are told to. The
which involved considering whether the defendant was reasonableness of their actions will be considered in
forced to act a certain way because of a reasonable fear light of the threat they faced and the crime committed.
that not doing so would result in death or serious injury. Ultimately, the decision on whether their actions were
The direction also required the jury to determine reasonable will be left to a jury to decide.
whether a reasonable person in the defendant's
situation would have acted the same way.
AR CASE 2012: FALSELY RETRACTED ALLEGATIONS OF
Conway case 1989: mistaken belief is available so long
RAPE
as the mistake is reasonable.

4. The defence of duress is only available if the

DURESS BY THREATS: SOME RESTRICTIONS defendant committed the crime directly
ON ITS APPLICATION AS A DEFENCE because of the threats made against them.

If they would have committed the crime anyway, then

the defence cannot be used. In a case Valderrama
1. The threat or danger must be of death or
1985, where the defendant was threatened with both
serious injury.
exposure as a homosexual and threats to his family, the
defence would only be available if the crime was
committed at least partly due to the threats made
This means that threats of harm that do not involve against his family.
death or serious injury, such as exposure of personal
secrets or drug addiction, are not enough to raise the
defence. The essence of the defence is that the
5. The defense of duress is not available if the
defendant's actions were morally involuntary, and only
defendant could have avoided the situation by
threats of death or serious injury remove the element
escaping or seeking police protection.
of free choice.
However, seeking police protection is not always an
objectively reasonable means of avoiding the threat, as
2. The threat must be directed against the shown in the case of Hudson and Taylor where teenage
defendant, their immediate family, or girls were threatened by a gang to perjure themselves
someone for whom the defendant reasonably in court.
regards themselves as being responsible.

This can include a defendant's partner, spouse, or

family members. In Shayler 2001, the court limited the
defence of duress to cases where the defendant 6. In order to use the defence of duress, the
committed a criminal act to avoid an imminent danger defendant cannot have willingly put
of death or serious injury to themselves or public at themselves in a position where they knew or
large. should have known they might be coerced into
committing a crime.

This applies even if the coercion comes from someone

3. The law recognizes that a person acting under
outside of a criminal organization. Additionally, the
a mistaken belief that they or someone else is
defence cannot be used if the defendant's loss of moral
under threat of death or serious injury may
fortitude was due to voluntary intoxication.
have a defense, but only if that belief is
reasonable.

This applies to self-defense and also to the defense of Add cases later
duress. However, the threat does not give a person the
 7. Duress may be a threat to any crime except
some forms of treason, murder and attempted
murder.

Add cases later

DURESS OF CIRCUMSTANCES

Understand it late in a better way?

# NECESSITY

The potential scope of necessity was described in the

Canadian case of Perka v Queen (1984) 13 DLR (4th),
where it was stated that:

Necessity covers all cases where non-compliance with

the law is excused by an emergency or justified by the
pursuit of some greater good.

1. Necessity as an excuse
2. Necessity as a justification: do it later?
TOPIC 12- PROPERT OFFENCES
So, a person can steal land if:

(b) If someone takes something that belongs

# Theft to a piece of land, either by cutting it off or

having it cut off, even if they don't actually
have possession of the land itself, they are still
breaking the rules.
Theft is defined in s.1, which states that:
(c) If someone is renting a piece of land and
A person is guilty of theft if he dishonestly appropriates
takes something that is attached to it or is
property belonging to another with the intention of
meant to be used with it, even if it's just a part
permanently depriving the other of it.
of it, they are breaking the rules.
The actus reus  of theft is the appropriation of property
belonging to another; and the mens rea  is dishonesty as
to the appropriation together with an intention
permanently to deprive the owner of the property. Subsection 4(2)(b) deals with the case
of trespassers who, for example, steal turf or
topsoil, garden trees or shrubs, garden fixtures
such as fountains or stone terraces, or parts of the
Actus reus: theft house such as lead from the roof or a fireplace or
1. Property staircase.

definition of property in s.4 of the Theft Act 1968. Subsection 4(2)(c) deals with the case of tenants,
Subsection 4(1) who cannot steal turf or topsoil, garden trees or
shrubs, but can steal fixtures such as fountains and
stone terraces.
includes money and all other property, real or
personal, including things in action and other
intangible property.

Subsection 4(2) then qualifies subsection (1) by

severely restricting the scope of stealable land (real
property). Subsections 4(3) and (4) deal with another
exception. Again, the property concerned is not
land itself but is a thing forming part of the land:

(3) If someone picks wild mushrooms, flowers, fruit,

Subsection 4(2)(a) states the general rule
or foliage from a plant on someone else's land
that land and interests in land cannot be without permission and only for their personal use,
stolen and its exceptions: they are not stealing. However, if they do it to sell
or make a profit, they are breaking the law.
(2) A person cannot steal land, or things forming
part of land and severed from it by him or by his
directions, except in the following cases, that it to (4) Wild animals, whether domesticated or not, are
say – considered property. But if someone takes a wild
animal that is not typically kept in captivity or the
(a) If someone is given the responsibility to sell carcass of such an animal, they are not stealing
or dispose of someone else's land, but they unless the animal was already caught and
secretly keep or use the land or something on possessed by someone else who has not lost or
it for themselves, they are breaking the trust abandoned it.
given to them and it's not allowed.
A person who picks flowers from a flowerbed or the hair, having put it in her own bag.
greenhouse, or apples from a garden tree commits
the actus reus of theft, since apples and flowers What, if anything, has B stolen?
are property. Subsection 4(3) applies to their ‘wild’
In this scenario, B has stolen A's client's hair which
counterparts. It affirms that wildflowers, or fruit or
was collected by A for the purpose of making
foliage from wild trees or plants on other people’s
cushions. Even though the hair was collected in a
land, do not count as property capable of being
refuse bag, it still belongs to A as he had
stolen unless it is done for some kind of commercial
possession of it and intended to use it for his
purpose.
business. Therefore, B has committed theft by
taking A's client's hair without permission and for
- Identifying the property her own use.
A key task in deciding whether theft of property has
occurred is identifying the property. Misidentifying
the property means the charge will fail, even though A eats a meal in a restaurant, although he
a theft has been committed.
has no money, and leaves without paying
- Bodies and body parts the bill, which is £20.
One cannot steal bodies or body parts because In this scenario, A has committed the offense of
bodies are not personal property. In Sharpe (1857) theft by dishonestly obtaining services, namely the
169 ER 959. The same rule applies to body parts. meal at the restaurant, without payment. This is
commonly known as "making off without payment"
A has not committed theft of the hair. This is an offence and is a form of theft under the Theft Act 1978 in
the UK. The value of the meal is £20, which is the
against the person (battery), not against property.
amount that A should have paid to the restaurant.
Therefore, A can be charged with theft for leaving
the restaurant without paying for the meal.
In a court case (Kelly [1999] QB 621), a technician gave
body parts to an artist who used them to make casts for
an art exhibit. Both were convicted of theft but argued A draws forged cheques owned by B for
that the body parts were not considered property.
However, the appeal was dismissed because a corpse or the sum of £1,000 on B’s bank account and
a part of a corpse can be considered property under the pays them into his account, causing a
Theft Act 1968 if it has been altered in some way using transfer of funds (a variation of what
skill, such as through dissection or preservation
techniques, for the purpose of exhibition or teaching. happened in Chan Man-Sin v A-G for Hong
Kong [1988] 1 WLR 196).
Using the same reasoning, in Welsh [1974] RTR
478, a driver was guilty of theft for removing his In this scenario, A has committed the offense of
own urine specimen from a police station. He did theft by deception. A drew forged cheques owned
this to avoid a conviction for driving with excess by B and paid them into his own account, causing a
alcohol. transfer of funds from B's account to his own
account. By doing so, A deceived the bank into
transferring the funds to his account under false
pretenses. The value of the stolen funds is £1,000,
which is the amount of the forged cheques.
Therefore, A can be charged with theft for
deceiving the bank and stealing B's money through
A, a hairdresser, collects his client’s hair the use of forged cheques.

with which to make cushions. He keeps the

hair in a refuse bag pending stuffing the A takes B’s cheque for £100 given to B by C
cushions. B, a rival cushion stuffer, takes as payment for a bicycle. A pays the
cheque into her bank account, causing a
transfer of funds from C’s account to A’s Taking the key of a car with the intention to steal it later
could be considered appropriation of both the key and
account. What has A stolen?
the car. By taking the key, A has assumed control over
In this scenario, A has committed the offense of the car, and this act could be seen as an assumption of
theft by taking B's cheque without permission and the right to use or dispose of the car, which are rights of
using it to obtain funds from C's account. Even ownership. In this sense, A has appropriated the car
though the cheque was made out to B, A had no even if he hasn't physically taken possession of it yet.
legal right to take and use it for her own benefit.
Therefore, A has stolen the value of the cheque, Would Mrs Darroux have appropriated the money
which is £100, by causing a transfer of funds from transferred into her account if she had drawn a
C's account to her own account without cheque on it?
authorization. A can be charged with theft for taking
and using B's cheque without permission. If Mrs Darroux had drawn a cheque on the money
transferred into her account, it could be argued that she
had appropriated the money. Writing a cheque and
2. Appropriation signing it would be an assumption of the right to
dispose of the money, which is a right of ownership.
This act could be seen as an appropriation of the money
Appropriation is defined by s.3(1) of the Theft Act because she would have exercised control over it by
1968, which states: transferring it to someone else.

If a person assumes they have the rights of an

owner over a property, whether they obtained it - Consent and appropriation
legally or not, and they act as if they own it by
In Lawrence [1972] AC 626, a student; taxi driver;
keeping or using it, this is considered appropriation. language issue; excessive fair; charged with theft.
In other words, any act that implies ownership over The House of Lords upheld the conviction, stating
a property, regardless of how it was obtained, is that the statutory definition of appropriation did not
considered an appropriation. include the words ‘without the owner’s consent’.

To determine if appropriation has occurred, we In the Morris case 1984, the defendant swapped
need to consider what rights an owner has over the the price tags on a can of beans to pay a lower
property and if the defendant has assumed any of price. The court ruled that an appropriation
those rights. If they have, then they have happens when someone takes property in a way
appropriated the property.
that goes against the owner's rights. Taking
In the case of Pitham and Hehl 1977, the defendant something from a self-service shop shelf is not an
offered to sell his friend's furniture, which was an appropriation because it is allowed. But in Morris,
assumption of the right to sell, and therefore, an swapping the price tags was not allowed, and it
appropriation. In the case of R v Darroux 2018, the went against the owner's rights. This decision was
defendant filled out false claim forms for overtime and also made in other cases, like Meech and Fritschy.
expenses, but this did not constitute an appropriation of
In Gomez, the assistant manager of a shop helped
the money that was transferred to her account. The
a customer acquire goods in exchange for two
Court of Appeal quashed her conviction because she did stolen cheques. The manager knew the cheques
not assume a right of ownership over the money; she were stolen and deceived the shop manager into
only wrote a false claim form. authorizing the sale. The manager was charged
with theft, but appealed, arguing that the goods
were sold under a contract between the customer
If A takes the key of a car so that he can steal the and the shop, and there could be no theft where
car later, has he appropriated only the key or also ownership passed to the customer. The Court of
the car? Appeal agreed and allowed the appeal. However,
the House of Lords overturned the decision and
held that even if an act is authorized or consented
to, it can still be an appropriation if it involves taking In the case of Williams v Phillips, it was
someone else's property without their consent. determined that refuse placed out for collection by
the local authority remained the property of the
In Hinks [2001] 2 AC 241, D befriended V and householder until it was collected by the local
encouraged him to make gifts of money from his authority. Therefore, refuse workers who took
bank account. D was convicted of theft, even property that did not belong to them could be
though there was no evidence of duress or convicted of theft. This decision was supported by
deception, because the acquisition of title subsequent cases such as Woodman and
(ownership) of the money was an appropriation. Hancock. In summary, taking someone else's
Lord Steyn said that even if V had gifted the property without permission is theft, regardless of
money, D, by acquiring title, had appropriated it. whether the property is valuable or not.
This was a surprising decision because the transfer
was considered valid under civil law, but invalid
under criminal law. The same principle applies to
other transactions involving the transfer of 3. The property must belong to
ownership, such as contracts for sale. The House of
another at the time of appropriation
Lords made it clear in Hinks that, despite their find that
an appropriation had occurred, most people who
received property by way of gift would not be guilty of
theft. Liability in such a case will depend upon whether
D was dishonest in receiving the gift.
In Chodorek v Poland  [2017] ACD 244 (82) QBD, the
debit card;
- Belonging to another
Corcoran v Whent [1977] Crim LR 52 is a
A person cannot be guilty of theft if the property perfect, if rare, example of how a theft conviction
they appropriate does not belong to another was not possible because the property
person. But a person can be guilty of theft if they appropriated no longer belonged to another person
appropriate property that belongs to them! at the time of appropriation.
(example of Horse) How can this be? The answer
to this question is to be found in s.5 of the Theft Act D ate food in a restaurant with a friend; left without
1968, which defines the term ‘belonging to another’. payment; had no mens rea to theft; at the time
mens formed property does not belong to other
Section 5(1) states that property belongs
to ‘any person having possession or control
- Subsection 5(3) of the Theft Act 1968
of it or having in it any proprietary right or
This is a deceptively difficult subsection designed to
interest’. cover the case of someone who has passed
ownership and possession in property to someone
- Abandoned property
else for a particular purpose and that purpose is
If property is abandoned, it may belong to no one, disregarded. Is the transferee guilty of theft? The
in which case it cannot be stolen. However, even subsection reads:
abandoned property may belong to someone else –
for example, the owner of the land or vessel in If someone receives property or money from
which the property is found. another person and has a legal obligation to keep
and use it in a certain way on behalf of the other
In Hibbert  v McKiernan  [1948] 2 KB 142, D was a person, then that property or money is still
trespasser; golf balls considered to belong to the original owner, even
though it is in the possession of the person with the
To that extent, the club had control of the balls and obligation. This means that if the person fails to
so they belonged to the club for the purpose of s.5. fulfill their legal obligation, they can be charged
with theft or other offenses related to
misappropriation of property or funds.
This subsection has the effect that if A gives
property (e.g. money) to B to do something specific a. a belief that he has in law the right to
with it (e.g. pay a bill, deliver to charity), B commits deprive the other of it, on behalf of himself
theft if they do something else with it even if B has
become the sole legal owner of the property. or of a third person; or
b. a belief that he would have the other’s
This is exactly what happened and was decided
in Wain [1995] 2 Cr App R 660. consent if the other knew of the
appropriation and the circumstances of it; or
c. a belief that the person to whom the
In Davidge v Bunnett [1984] Crim LR 297, the
defendant shared a flat with others, who gave her property belongs cannot be discovered by
cheques to pay their joint gas bill. It was
understood that D would have to pay the cheques taking reasonable steps.
into her own bank account before doing so. In fact,
D spent the proceeds on Christmas presents. The An example of s.2(1)(b) is where D takes V’s milk
Divisional Court held that s.5(3) applied, and that D from the refrigerator of their jointly occupied flat for
was under a legal obligation to use the proceeds to a cup of tea, having used all their own milk. An
pay the bill, and therefore they were property example of s.2(1)(c) is where D finds a sum of
belonging to another by virtue of s.5(3). money in a public area which, because of its
relatively small size, they conclude will never be
- Subsection 5(4) of the Theft Act 1968 reported to the police. The key point here is not that
D does have this right (s.2(1)(a)) or does have V’s
Subsection 5(4) was designed to address problems consent (s.2(1)(b)), or that the property cannot be
such as occurred in Moynes v Cooper [1956] 1 QB returned to the owner by taking reasonable steps
439, in which an employer paid an employee’s (s.2(1)(c)), but that D has this belief. The jury will
salary twice into the employee’s bank account by decide this by reference to all the evidence.
mistake and the employee spent it. Under the civil
law, the funds in the account (thing in action)
belong to the account holder. Subsection 5(4)
confirms that the property mistakenly transferred or
otherwise received belongs also to the transferor
for the purpose of the law of theft, so that if the D was a cashier in a betting office who, contrary to
transferee treats the property as their own they will his firm’s instructions, took some money out of the
be guilty of theft. It states: till on a Friday, intending to repay it on the Monday.
He left a note to this effect in the till. D was charged
with theft. The trial judge held that D’s actions were
clearly dishonest. Section 2 did not apply and his
intention to replace the money was irrelevant. The
Mens rea: theft Court of Appeal allowed the appeal. Lawton LJ
agreed that a person could be acting honestly
although s.2 did not apply. He said that the final
- Dishonesty decision on whether the appropriation is dishonest
lies not with the judge but was a question of fact
which should have been left to the jury. He said:

Dishonesty is not defined in the Theft Act 1968. Jurors should use their own understanding of what
However, s.2 of the Act tells us what dishonesty it means to be honest and apply that standard
is not. Section 2(1) states that certain beliefs of the when deciding whether someone's actions were
defendant are inconsistent with having a dishonest dishonest. They don't need a judge to tell them
state of mind. These are: what constitutes dishonesty.

Ivey/Feely test:
Under the Ivey/Feely test, a jury must first Do you think the current mechanism for deciding
determine whether the defendant's actions were whether a person is dishonest is sufficiently clear?
dishonest according to the standards of ordinary, Outline the proposals for reforming theft and
reasonable and honest people. If the jury finds that dishonesty tabled by Professors Smith, Glazebrook, Tur
the actions were dishonest, they must then consider and Elliot.
whether the defendant knew that their actions were
A takes a bruised apple from a market stall and gives it
dishonest according to those standards.
to a homeless person sitting on the floor nearby. What
direction should the judge give the jury on dishonesty?

It replaces the previous test of subjective

dishonesty, which required a defendant to know
that their actions were dishonest according to the Intention permanently to deprive
standards of reasonable and honest people.
A defendant commits theft only if it is their intention
for the victim never to recover the property. Theft
does not require the victim to be permanently
A different direction for dishonesty – which is deprived of their property. It simply requires D to
slightly more beneficial to the defence – was laid have this intention at the precise moment they
down in Ghosh [1982] QB 1053, a case on fraud appropriate the property. However, it is necessary
(which carries the same dishonesty requirement). for the prosecution to draft the charge so as not to
The defendant was a consultant at a hospital. He refer to any specific property
falsely claimed fees in respect of an operation that (compare Easom [1971] 2 QB 315), for example by
he had not carried out. D claimed that he thought charging D with theft of ‘articles unknown, the
he was not dishonest, since he was owed the same contents of a handbag belonging to X’ (see also A-
amount of money for consultation fees. The judge G’s Reference (Nos 1 and 2 of 1979) [1979] 3 All
directed the jury members, in accordance ER 143).
with Feely, that they must simply apply their own
standards as ordinary decent people. D was In the case of fungibles, such as money, food, drink
convicted and his appeal was dismissed by the and so on, this intention exists even if D intends to
Court of Appeal.Critics describe the test as a return an identical sum, amount of food, drink and
Robin Hood defence. so on. This was made clear in Velumyl [1989]
Crim LR 299, in which D had taken money from his
employer’s safe and claimed that he intended to
pay it back after the weekend. The Court of Appeal
Ivey v Genting Casinos [2017] UKSC 67 held that D had not intended to return the exact
coins and notes, and that therefore he was properly
Caught with dishonesty while gambling; he thought it convicted of theft on proof of dishonesty. (Note:
normal himself and assumed public would think in such cases, it would be far better for D to
contend that he was not dishonest, given his
likewise.
intention to replace the money with an equivalent
The Supreme Court rejected this argument. fund.)
Whether someone is dishonest or not does not vary
with the defendant’s own assessment of what Subsections 6(1) and 6(2) of the Theft Act 1968
counts as dishonesty, but is decided according to provide two special circumstances beyond its
objective standards of ordinary, reasonable people. normal meaning where the intention to take
something temporarily counts as an intention
permanently to deprive the owner of the property.

Study task 7 Subsection 6(1) of the Theft Act 1968

Read Wilson, Chapter 14.2.B.2 ‘Dishonesty’, Section (b) A person is to be treated as having an intention to
‘What dishonesty is’ and Section (c) ‘Reforming permanently deprive the owner of his property if his
dishonesty’ and answer the following questions. intention is to:
If someone treats something as if it belongs to
them, and they can do whatever they want with it
without considering the owner's rights, it's
considered as if they have taken ownership of it.
This can include borrowing or lending something if
it's done in a way that's similar to taking or
disposing of it completely.

So, if D ‘borrows’ V’s ticket for the

Manchester United game against
Manchester City, intending to return it
after the game, D has – by virtue of s.6(1) –
the intention to permanently deprive V of
her property, because D is treating the
ticket as his own to dispose of regardless
of the other’s rights.
In DPP v Lavender [1994] Crim LR 297, the
defendant removed some doors from a council
property that was due for demolition and then
installed the doors in his girlfriend’s flat, which was
also owned by the council. D was charged with
theft of the doors. It was held that he did have the
intention to permanently deprive under s.6(1) as, by
installing the doors at another’s house, D was
treating the doors as if they were his own to
dispose of regardless of the owner’s rights.

Subsection 6(2) of the Theft Act 1968

By subs.6(2), A is deemed to have the intention to

permanently deprive B of B’s property if A parts
with property in A’s possession or control under a
condition which A may not be able to perform. This
is intended to cover the kind of case where
someone who has property belonging to someone
else in their possession or control pawns that
property to another.
 window. In Ryan [1996] Crim LR 320, on
comparable facts, the conviction was upheld,
Burglary although D, who had become stuck in the window,
had not managed to penetrate sufficiently far into
Section 9 of the Theft Act 1968 creates two the premises to steal anything.
separate offences of burglary: an inchoate crime of
ulterior intent where there is no need to prove the
Did the person entering enter as a trespasser?
commission of the substantive offence
Entry will be as a trespasser if the entry is made
A person is guilty of burglary if – without the consent, express or implied, of the
occupier, and without statutory authority. The
(a) he enters any building or part of a question of whether the defendant had entered as a
trespasser was of key concern in Collins. The
building as a trespasser and with intent to defendant, intending to rape V, climbed naked up a
commit any such offence as is mentioned ladder and perched on her windowsill. V mistook
him in the dark for her boyfriend and welcomed him
in subsection (2) below; or in. It was not clear how far into the room D was
when he received his invitation, but the jury found
(b) having entered any building or part of it as a that his entry was sufficient for a conviction.
trespasser he steals or attempts to steal anything However, the court made clear that if he was still on
in the building or that part of it or inflicts or attempts the windowsill when invited in, he would not have
to inflict on any person therein any grievous bodily entered as a trespasser and so could not be
harm. guilty of burglary.
Since both s.9(1)(a) and s.9(1)(b) have ‘entry of a Since Collins, it has also been decided that those
building as a trespasser’ as common features for who enter premises in excess of authority are
burglary these will be dealt with first before we trespassers on those premises. This covers those
cover the specifics of the two offences. who may have permission to be in the property but
exceed the permission by doing something which
12.2.1 Actus reus: burglary they were not invited to do. So, in Jones and
In order to be guilty of burglary, D must enter a Smith [1976] 1 WLR 672, it was burglary for a son
building or part of a building as a trespasser. The to enter his father’s house intending to steal a TV.
following questions must be asked, therefore, in Although he had general authority to enter the
connection with both forms of the offence. premises, that authority was vitiated by entering in
excess of the presumed terms of his father’s
consent.
 Was there an entry? If yes,
 did the person entering enter as a
Was the entry to a building or part of a building?
trespasser? If yes,
A building is not defined in the Theft Act 1968,
 was the entry to a building or part of a although s.9(4) states that it includes ‘a vehicle or
vessel constructed or adapted for human
building? habitation’ – for example, houseboats, canal barges
and caravans. A consensus holds that a building
What counts as entry? must be some form of structure with a degree of
To enter premises, entry of the whole person is not permanence capable of being entered. This would
necessary; however, the entry must be ‘effective’. cover barns, churches, shops, warehouses and
even portable cabins such as freezer containers,
In Brown [1985] Crim LR 212, it was confirmed and also outbuildings, but probably not tents
that, contrary to the earlier authority (B and S v Leathley [1979] Crim LR 314).
of Collins [1973] QB 100, the entry need not be
substantial. So D’s conviction for burglary was
upheld on the basis of him having smashed the Mens rea: burglary
window of a shop and having leant in, feet still on
the pavement, to take goods from inside the
For both offences of burglary, the defendant must - Aggravated burglary under s .10 of
know they are a trespasser or be reckless as to the Theft Act 1968
whether they are trespassing at the time of entry.
They must also have the relevant mens rea for the Under s.10(1):
crime they commit or intend to commit: for
example, dishonesty and the intention to (1) A person is guilty of aggravated burglary if he
permanently deprive in the case of theft. commits any burglary and at the time has with him
any firearm or imitation firearm, any weapon of
- Section 9(1)(a) burglary offence, or any explosive; and for this purpose –

The s.9(1)(a) offence requires intention to commit (a) ‘firearm’ includes an airgun or air pistol,
one of the ulterior offences. It will be charged when and ‘imitation firearm’ means anything which
there is evidence that D had entered with the has the appearance of being a firearm,
relevant intent but had not yet consummated the whether capable of being discharged or not;
proposed crime. In everyday language, a person and
can be a burglar without actually stealing anything
or causing any harm. (b) ‘weapon of offence’ means any article
made or adapted for use for causing injury to
It is important to remember that it is not necessary or incapacitating a person, or intended by the
for the prosecution to prove entry with intent to person having it with him for such use; and
steal, although, of course, this will usually be the
case. A person who enters with intent to commit (c) ‘explosive’ means any article manufactured
any of the offences specified commits burglary. By for the purpose of producing a practical effect
s.9(2) these are offences of: by explosion, or intended by the person having
it with him for that purpose.
 stealing anything in the building or part of
The mere fact that the defendant has with them at
the building in question, or the time of the burglary an object that could be
used as a weapon of offence, such as a crowbar or
 inflicting on any person therein any grievous knife, does not mean the offence is committed. The
bodily harm, or prosecution must either show that the article’s
primary purpose is for causing injury, such as a
 doing unlawful damage to the building or gun or hunting knife, or has been adapted for such
use, or, in the case of articles such as crowbars,
anything therein. knives, etc. that it was intended for such use by
the defendant. See R v Eletu and White [2018]
It is not burglary, therefore, to enter premises as a EWCA Crim 599.
trespasser with intent to commit fraud, rape or
cause actual bodily harm. In O’Leary (1986) 82 Cr App R 341, D entered a
house without a weapon. Once inside he took a
- Section 9(1)(b) burglary knife from the kitchen and took it upstairs to effect
the burglary. D’s conviction was upheld on appeal.
The s.9(1)(b) offence does not require proof of an
It was held that, since the offence was charged
ulterior intent at the time of entering as a
under s.9(1)(b), there was no requirement that he
trespasser. It is charged only where there is
had the knife at the time of entry.
evidence that the substantive offence has been
committed. It is committed where, having entered
as a trespasser, the entrant:

 steals or attempts to steal, or

 inflicts or attempts to inflict grievous bodily
harm.
TOPIC 13- FRAUD AND MAKING OFF  knew the representation was or might be
WITHOUT PAYMENT
false, and
 acted intending to make a gain or cause a
1. Fraud by false representation loss, and
The essence of this form of fraud is some form of  acted dishonestly.
deception. Section 2 of the Fraud Act 2006 reads
as follows:

(1) A person is in breach of this section if he – Actus reus: fraud

(a) dishonestly makes a false representation,

and It requires proof that D made a representation and
that representation was false. There is no need to
(b) intends, by making the representation – prove that V acted to their detriment in reliance on
the representation. Indeed, there is no need for it to
(i) to make a gain for himself or another, be communicated to V so long as it is made. 
or

(ii) to cause loss to another or to expose

another to a risk of loss. - Meaning of representation
The simplest meaning of representation is ‘stating
(2) A representation is false if – something’, ‘pretending something’, ‘professing
something’ or ‘creating an impression’. So a seller
(a) it is untrue or misleading, and who tells a buyer that the car he is selling is in good
condition makes a ‘representation’ that it is in good
(b) the person making it knows that it is, or condition. 
might be, untrue or misleading.

(3) ‘Representation’ means any representation as

to fact or law, including a representation as to the
state of mind of –
Note, for exam purposes, the most important
abilities you should be able to display in the
(a) the person making the representation, or context of fraud are:
(b) any other person.
1. being able to identify the representation that
(4) A representation may be express or implied.
you think is the basis of the fraud charge,
(5) For the purposes of this section a and
representation may be regarded as made if it (or
anything implying it) is submitted in any form to any 2. being able to explain why in relation to that
system or device designed to receive, convey or
representation it is false.
respond to communications (with or without human
intervention).
# Can one make a representation by saying or
doing nothing?
Elements of the offence
As a general rule, the answer is no, since making a
The actus reus requires proof that D made a false
representation means to state something or do
representation. The mens rea requires proof that D:
something.

Illustration 2
A sells B a car, the odometer of which he knows In both cases, Adam’s silence is impliedly telling
carries a false reading. the other party that nothing relevant to their
agreement has changed since the first
A cannot be guilty of fraud as he has made no false representation was made. Put another way, in both
representation as to the mileage. It would be cases, the statement that Adam has made which
different if, upon being asked, A confirmed the was once true is now false. The change in
reading or said that it was genuine (express circumstances has made it so.
representation of fact) or that he believed it to be
genuine (express representation as to his state of # Representations and machines
mind).
The Fraud Act 2006 s.2(5) now makes it possible to
In two situations, silence may constitute a false commit fraud via a machine, since a representation
representation. In both cases, the silence creates a is regarded as having been made:
false impression.
This would include putting false information in an
online tax or insurance form, or computer
‘phishing’, as in the case of those who place viral
# Where there exists a duty of disclosure (also sob stories on the internet which are intended to
covered by s.3) cause naive recipients to transfer money to the
phisher.

A person who puts a foreign coin in a slot machine,

(Firth (1990) 91 Cr App R 217). such as a car park ticket machine or chocolate
machine, also commits fraud, whether or not the
By not telling the hospital, when he is under a duty ruse is successful, not because of subs.2(5) but
of disclosure, Adam is creating a false impression because, by inserting the coin, they are making a
that Eve is a national health service (NHS) patient representation in the usual way. ‘This is a £1 coin’,
rather than the private patient she actually is. ‘this is a $2 coin’, as the case may be.
Because of his duty of disclosure, the hospital is
entitled to assume that all patients operated on are
NHS patients unless Adam tells them otherwise.

Where the circumstances giving rise to a

representation change, so that the original The representation must be false
representation no longer accurately describes
the true state of affairs By subs.2(2) of the Fraud Act 2006, a
representation is false if (a) it is untrue or
Illustration 4 misleading, and (b) the person making it knows that
it is, or might be, untrue or misleading. This is a
very inclusive definition.
Adam truthfully tells his local authority that
Eve, his mother, is bedridden and so in need of
a downstairs bathroom. On the strength of this
representation, the local authority agrees to
Mens rea: fraud
install a new bathroom. Before the work is
The core mens rea element for fraud, is the
started, Eve dies. Adam fails to tell the local defendant’s intention, by making the
representation, to make a gain for themselves or
authority of her death (the facts of Rai [2000] 1 another, or to cause loss to another or to expose
Cr App R 242). another to a risk of loss.

If D knows that their representation will cause loss

to V or expose V to the risk of loss, D intends that
consequence. Gain and loss are defined by s.5(2)
and (3) of the act: 2. The intention to make a gain for someone
else: for example, giving a false reference to
(2) ‘Gain’ and ‘loss’ –
secure someone a job or a loan.
(a) extend only to gain or loss in money or 3. The intention to cause a loss to another.
other property;
Usually this will go hand-in-hand with an
(b) include any such gain or loss whether
temporary or permanent; intention to make a gain, either for oneself
or for another, but it will include cases
and ‘property’ means any property whether
real or personal (including things in action and where the representor’s purpose is purely
other intangible property).
destructive. Here is an example.
(3) Gain’ includes a gain by keeping what one has,
Illustration 5
as well as a gain by getting what one does not
have.
Janice, a committed vegetarian, places an
advertisement in the Daily Globe newspaper
1. Adam promises to marry Eve in order to implying that the hotdogs of HotdiggetyDog
hotdog manufacturers actually contain dog
encourage her to agree to sexual meat. The representation, which is false, is
made in an attempt to damage sales of
intercourse.
HotdiggetyDog meat products.
2. Adam tells people in a queue for a concert
This is fraud, because of Janice’s intention to cause
that he has a bad back in order to gain a financial damage to HotdiggetyDog.
better place in the queue.
4. The intention not to cause a loss to the
3. Eve misrepresents her golf handicap in representee but to expose them to the risk of
loss (this is more unusual).
order to be permitted to join a top club.
Illustration 6
Note: The gain or loss can be temporary or
permanent, so making a misrepresentation to
induce a loan of a car or money, or to gain time to a. A, a mortgage broker, puts false
pay a debt, would be covered. In this latter
example, fraud is constituted, since ‘gain’ includes earnings particulars on clients’ mortgage
a gain by keeping what one has, as well as a gain
forms to induce the lender to lend to her
by getting what one does not have. ‘Loss’ includes
a loss by not getting what one might get, as well as clients.
a loss by parting with what one has.
b. B, a financial adviser, advises his client,
There are four possible cases of this mens C, to invest a large amount of money in X
rea requirement.
company, telling him it is a good
1. The intention to make a gain for oneself by investment. He knows that the
false representation (this will be the most investment is risky but hopes that the
usual case). investment pays off and will advance his
reputation as an adviser.
A is guilty of fraud. Her liability turns on the fact Mens rea: failing to disclose information
that, although she does not intend to cause the
lender any loss, she does intend to expose the The mens rea for s.3 of the Fraud Act is the same
lender to the risk of loss, namely the risk that the as for s.2.
borrowers may default (Allsop (1977) 64 Cr App R
29). B is also guilty of fraud for the same reason. Section 3 states:

Dishonesty (1) A person is in breach of this section if he –

The final mens rea element is dishonesty. (a) dishonestly fails to disclose to another

Dishonesty, in this context, is Ivey dishonesty. person information which he is under a legal
There is no equivalent to s.2 of the Theft Act 1968 duty to disclose, and
in the Fraud Act 2006. This means that a person
who makes a false representation in order to gain (b) intends, by failing to disclose the
what they believe they are in law entitled to is not information—
automatically to be acquitted: it will be a matter for
the jury. This was made clear in the pre-2006 Act (i)  to make a gain for himself or another,
case of Woolven (1983) 77 Cr App R 231 and one or
must assume the position is unaltered.
(ii) to cause loss to another or to expose
another to a risk of loss.

Fraud by abuse of position

2. Fraud by failing to disclose (1) A person is in breach of this section if he –
information
(a) occupies a position in which he is expected
to safeguard, or not to act against, the
Actus reus: failing to disclose information financial interests of another person,

(b) dishonestly abuses that position, and

The important aspect of s.3 is the requirement that (c) intends, by means of the abuse of that
the defendant be under a legal duty of disclosure: a position –
moral duty is not enough. The concept of ‘legal
duty’ is explained in the Law Commission’s (i)  to make a gain for himself or another,
Report on Fraud, which said: or
A duty can come from different sources like laws (ii) to cause loss to another or to expose
(for example, rules about company prospectuses), another to a risk of loss.
or because of the nature of the agreement (like
insurance contracts, where both parties have to be
(2) A person may be regarded as having abused
completely honest with each other). It can also
his position even though his conduct consisted of
come from the terms of a contract, trade customs,
an omission rather than an act.
or a special relationship between the people
involved (such as a person acting as an agent for
someone else). The Law Commission described the type of
relationships intended to be covered by fraud
by abuse of position as follows:
So, an art dealer would not commit the offence if
they bought a painting at a car boot sale knowing
that the painting was worth a thousand times the There are certain relationships that automatically come
asking price, as they have only a moral duty of with fiduciary duties, like between a trustee and
disclosure. beneficiary, director and company, or agent and
principal. However, this kind of relationship can also
exist in other situations, like within a family, voluntary
work, or any situation where the parties are not
a. Adam parks his car in a pay and display
completely separate. Even if it's not a typical fiduciary
relationship, the law can still recognize it as such. But, car park. Eve, who is about to leave the
the authors believe that it's not necessary for these
car park, gives Adam her unexpired
duties to exist in all situations.
ticket. Adam places the ticket on his
windscreen.
Adam is guilty under s.11. He is also guilty
of fraud by false representation. By putting
the ticket on his windscreen, he is impliedly
representing that he has paid for it. The gain
he makes is keeping the fee due.
3. Obtaining services dishonestly

Section 11 of the Fraud Act 2006 states

What conduct does ‘obtaining services’ cover?
(1) A person is guilty of an offence under this
section if he obtains services for himself or another Subsection 11(2) clarifies what is meant by
– ‘obtaining services’.

(a) by a dishonest act, and (2) A person obtains services in breach of this
subsection if –
(b) in breach of subsection (2).
(a) they are made available on the basis that
payment has been, is being or will be made for
or in respect of them,
Actus reus: obtaining services dishonestly
(b) he obtains them without any payment
Under the previous law it was an offence only having been made for or in respect of them or
where there was a deception. Now any dishonest without payment having been made in full, and
act will be covered. The difference in coverage can
be seen in the following example. (c) when he obtains them, he knows –
Illustration 7 (i) that they are being made available on
the basis described in paragraph (a), or
D parks her car in a pay-and-display car park.
She does not pay for a ticket, hoping that she (ii) that they might be, but intends that
will return before a ticket inspector arrives. payment will not be made, or will not be
made in full.
Under the Theft Act 1978, this would not be an
offence under s.2, as no false representation has Subsection 11(2) makes it clear that only services
been made. It is, however, an offence under s.11 made available on the basis that payment has
because D has obtained a service and her conduct been, is being or will be made for or in respect of
is dishonest. them are covered.
Illustration 9
Mens rea: obtaining services dishonestly
The offence requires Ivey dishonesty, knowledge
that payment is required or might be, and an
intention not to pay for the service or not to pay in Both theft and fraud by fraudulent
full. Section 2 of the Theft Act 1968 does not apply. misrepresentation

Actus reus: making off without payment

A person can be liable only if they
have made off from the spot where payment was
due. Liability turns therefore on whether payment is
due and, if so, where that spot is and whether D
has departed from it.

In the McDavitt 1981 case, a man had an argument with

a restaurant over his bill and tried to leave without
paying. The police were called, and he admitted that he
had intended to leave without paying. He was charged
with "making off without payment," but the court ruled
that this only applies if someone runs away from the
4. Making off without payment
place where they are supposed to pay, which in this
Section 3 of the Theft Act 1978, which is still in case was the restaurant. Therefore, the jury should
force, provides: have been told that they couldn't find him guilty of this
particular charge. However, they could still find him
(1) a person who, knowing that payment on the
guilty of "attempting" to leave without paying.
spot for any goods supplied or service done is
required or expected from him, dishonestly makes
off without having paid as required or expected and
with intent to avoid payment of the amount due Compare Moberly v Alsop [1992] COD 190, in
shall be guilty of an offence. which D travelled on a train without paying for a
ticket. She was apprehended, having gone through
(2) For purposes of this section ‘payment on the the ticket barrier, and charged with making off
spot’ includes payment at the time of collecting without paying. She argued that she had not made
goods on which work has been done or in respect off without paying because the spot for paying was
of which service has been provided. the ticket office and she had not made off from
there. Indeed, she had never been there! This
(3) Subsection (1) above shall not apply where the argument was rejected.
supply of the goods or the doing of the service is
contrary to law, or where the service done is such In the case of R v Wilkinson 2018, it was decided
that payment is not legally enforceable. that a taxi fare can only be charged if the
passenger has been taken to their destination or to
Study task 6 a place where they asked to get out of the taxi. If
the driver stops before reaching the destination and
While out shopping, Yuri sees a shirt priced tells the passenger to get out, the fare is not due.
£50. He swaps the price tag for one marked £30 However, in the case you mentioned, the
and pays the lower price. Yuri buys a DVD and passenger refused to get out when the driver
pays for it with a £10 note. The shop assistant offered to let her out of the taxi before reaching her
mistakenly gives him change for a £20 note. destination. This means that the driver still had to
Yuri realises this once he is outside the shop take the passenger to the original destination, and
but keeps the money. What offences, if any, the passenger had to pay the full fare for the
have been committed? journey.
  There must be property.
Mens rea: making off without payment
 That property must belong to another.
The mens rea for s.3 of the Fraud Act 2006 is
 D must damage that property.
dishonesty and an intention to avoid payment of the
amount due. Significantly, s.3 does not state that
- Property
the intention must be to make permanent default.
The commonsense view is this should not be the Indeed, the most common object of criminal
case because having to prove D intended to damage, as in arson, is land and buildings.
make permanent default will make the
prosecution’s burden of proof rather difficult. It is Section 10 states:
easy to claim that one intended to pay later and
difficult to disprove this beyond reasonable doubt. (1) in this Act ‘property’ means property of a
Nevertheless, in Allen [1985] AC 1029, the House tangible nature, whether real or personal, including
of Lords held that the offence was constituted only money and:
upon proof of an intention permanently to avoid
paying the amount due. So a hotel customer who
(a) including wild creatures which have been
checked out without paying did not commit the
tamed or are ordinarily kept in captivity, and
offence if he was temporarily financially
any other wild creatures or their carcasses if,
embarrassed and intended to pay later.
but only if, they have been reduced into
possession which has not been lost or
abandoned or are in the course of being
reduced into possession; but

(b) not including mushrooms growing wild on

any land or flowers, fruit or foliage of a plant
Topic 14 – Criminal damage growing wild on any land.

For the purposes of this subsection

‘mushroom’ includes any fungus and ‘plant’
# Simple criminal damage includes any shrub or tree.
Section 1(1) of the Criminal Damage Act 1971
Criminal damage therefore includes damage to
states:
land, including cultivated plants and domesticated
animals. A person who kills or injures a dog or cat,
A person who without lawful excuse destroys or therefore, commits criminal damage. It includes
damages any property belonging to another damage to things on the land, whether or not they
intending to destroy or damage any such property form part of the land. It also includes damage to
or being reckless as to whether any such property personal property such as cars, vases, carpets,
would be destroyed or damaged shall be guilty of food, drink, paper, clothes and so on.
an offence.
- Property belonging to another
The maximum punishment for a violation of s.1(1)
following a trial on indictment is 10 years’ By s.10(2) property for the purposes of the act
imprisonment (s.4(2)). Where the offence is belongs to any person:
committed by fire it will be charged as arson with a
potential maximum sentence of life imprisonment. (a) having the custody or control of it;

(b) having in it any proprietary right or interest

(not being an equitable interest arising only
1. Actus reus: simple criminal damage from an agreement to transfer or grant an
interest); or
As with theft, there are three elements of the actus
reus.
(c) having a charge on it.
Section 10 goes on to state that

(3) Where property is subject to a trust, the persons - Damaging property in order to protect a
to whom it belongs shall be so treated as including person’s own property or an interest therein
any person having a right to enforce the trust.
The simplest case of s.5(2)(b) is where D damages
(4) Property of a corporation sole shall be treated property in order to protect their own property (e.g.
as belonging to the corporation notwithstanding a shoots a dog worrying their sheep or sets fire to a
vacancy in the corporation. haystack to prevent a fire on neighbouring land
spreading to their house). The defence extends beyond
property to property interests. So knocking down a wall
blocking a right of way was held to be a lawful excuse
Mens rea: simple criminal damage
in Chamberlain  v Lindon  [1998] 1 WLR 1252.
The defendant must intend to damage property
Section 5(2)(b) has been held to apply only where the
belonging to another or be reckless in respect of
damage done is for the direct and immediate purpose
causing such damage. Intention carries its general
of protecting property. So, in Hunt  (1978) 66 Cr App R
meaning. The meaning of recklessness for the purposes
105, D argued that he set fire to a bed in an old people’s
of the Criminal Damage Act was for many years a
home to draw attention to the non-working fire alarm.
matter of controversy until the House of Lords’ decision
The Court of Appeal ruled that this was not a lawful
in G [2003] UKHL 50, which returned recklessness to its
excuse. D’s action was taken not to protect the old
previous (subjective) meaning.
people’s home from damage but to act as a warning. In
- LAWFUL EXCUSE short, the act must be for the direct purpose of
protecting property from harm.
Section 5 of the Criminal Damage Act 1971 provides
two defences for damaging property without lawful # Aggravated criminal damage
excuse: belief in the owner's consent and belief that it is
necessary to protect one's own property. These Section 1(2) of the Criminal Damage Act 1971
defences apply even if the defendant would not states:
normally have a lawful excuse. It is enough for the
A person who without lawful excuse destroys or
defendant to honestly believe that they had the owner's damages any property, whether belonging to
consent or that it was necessary to protect their own or himself or another –
another's property, without requiring the belief to be
reasonable. (a) intending to destroy or damage any
property or being reckless as to whether any
property would be destroyed or damaged; and
- Belief in the consent of the person or persons
(b) intending by the destruction or damage to
believed to be entitled to consent
endanger the life of another or being reckless
In Jaggard  v Dickinson  [1981] QB 527. D, after an as to whether the life of another would be
evening’s drinking, found that she had been locked out thereby endangered;
of her home. She broke into a house which, in her
shall be guilty of an offence.
drunken state, she thought belonged to a friend who
would consent. In fact, she was mistaken; it was the Simple criminal damage is a property crime.
house next door. The magistrates held that she could Aggravated criminal damage, however, is a hybrid
not rely upon s.5(2)(a), since her belief in consent was offence against property and against the person. Its
brought about by self-induced intoxication (see Topic core application is cases of dangerous arson. The kind of
10). The Divisional Court quashed the conviction, case covered by the aggravated offence is A-G’s
relying on s.5(3), which states: ‘For the purposes of this Reference (No 50 of 2005) [2005] EWCA Crim 2041, in
section it is immaterial whether a belief is justified or which the defendant used petrol to set fire to his room
not if it is honestly held’. in a hostel, in the hope that he would be rehoused. The
hostel was destroyed. The aggravated offence was imprisonment, D had to do more than prepare for
committed – D had committed arson and he was it. He had to have done things which formed part of
reckless as to whether life would be endangered by that the execution of the offence.
arson.

Eagleton (1855) 169 ER 826 case is known as the

Elements of the offence "proximity test" and it established the idea that in order
for an act to constitute an attempt to commit a crime,
there must be a sufficient degree of proximity between
 There must be intentional or reckless the act and the intended crime.
damage to property.
In the case of Eagleton (1855) 169 ER 826, the
 The property does not have to belong to defendant was given the job of delivering bread to the
poor, for which he was paid by the guardians of a
another person.
parish. The defendant, however, claimed the full
 The person must intend to endanger life by amount of the payment but delivered loaves of bread
which were underweight, and was subsequently
that damage, or be reckless as to whether
charged with attempting to obtain money by false
life would be endangered by that damage. pretenses.

Topic 15 – Criminal attempts

Since the defendant in Eagleton had committed the last
act needed on his part to commit the offence, his act
Introduction was clearly proximate (immediately connected) to it
and so he was guilty. In this case, the necessary
A person who acts, intending to commit a criminal
proximity was satisfied because Eagleton had
offence, will be guilty of that criminal offence if they
completed his attempt.
succeed in bringing about the actus reus of that offence.
So, a person who kills another person intending to kill
that person will be guilty of murder. If, for some reason,
The case of White [1910] 2 KB 124 is significant in the
the actus reus is not committed – for example, because
context of the law of attempts because it illustrates the
the aggressor missed the target with his gun – a
application of the proximity test to a case involving a
conviction for attempted murder will still lie. This topic
defendant's attempt to kill another person. In White,
examines the legal rules governing criminal attempts.
the defendant had administered small amounts of
poison to his mother over a period of time, with the
intention of eventually causing her death. The court
# Retribution or prevention?
held that this act was sufficiently proximate to the
completed offence of murder by poison to count as an
attempt.
D was found in a boy’s lavatory in a school, armed
with knife, rope and masking tape. He did this in
furtherance of an intention to falsely imprison a boy
with a view to committing a sexual assault. The The court in White also recognized that different tests
question was whether this could amount to an of proximity had been proposed in other cases, such as
attempt to falsely imprison the boy. The judge ruled the "crossing the Rubicon" test, which was referenced
that it could and it was for the jury to decide in the case of Stonehouse [1978] AC 55. In that case,
whether it did. The jury was in no doubt – D was the defendant had faked his own death in order to
convicted. The Court of Appeal, however, quashed allow his partner to fraudulently claim on his life
the conviction. To count as an attempt at false insurance policy. Lord Diplock in that case referred to
the fact that the defendant had "crossed the Rubicon" to give to a cashier. D was arrested before he entered
by leaving his clothes on a beach and going into hiding, the Post Office. The Court of Appeal, quashing his
meaning that he had gone so far towards achieving his conviction, held that these were acts of preparation. He
criminal objective that there was no turning back. had not embarked upon the crime proper.

Overall, the cases of White and Stonehouse illustrate A case falling on the other side of the line is Jones
the application of the proximity test and the various (1990) 91 Cr App R 351. In this case, D, who was jealous
ways in which it has been applied by the courts to of V, got into V’s car while it was stationary and handed
determine whether an act constitutes an attempt to over a letter. While V read it, D took a loaded sawn-off
commit a crime. The key factor in each case is the shotgun from his bag, pointed it at V at a range of some
degree of proximity between the defendant's acts and 10 to 12 inches and said, ‘You are not going to like this’
the completed offence, and the extent to which the or similar words. V grabbed the end of the gun and
defendant has gone towards achieving their criminal pushed it sideways and upwards. There was a struggle,
objective. during which V managed to throw the gun out of the
window. D’s conviction for attempted murder was
The Criminal Attempts Act 1981 s.1 defines the offence
upheld.
of attempting to commit a crime as follows: if a person
intends to commit a crime and does an act that goes
beyond just preparing to commit the crime, they can be
found guilty of attempting to commit the crime. In other
words, the act they do must be more than just planning
or preparing to commit the crime; it must be a direct
step towards actually committing the crime. Mens rea

Actus reus Section 1 of the Criminal Attempts Act 1981 states

that attempt is a crime of specific intent,
meaning the accused must intend to commit the
The "more than merely preparatory" test is used by specific criminal offence. For example, attempted
judges to determine whether a defendant's actions murder requires the intention to kill, not just to
constitute an attempt to commit a crime. If the judge cause harm. In the case of Whybrow (1951), the
decides that the defendant's actions are capable of Court of Appeal ruled that the trial judge's direction
being more than preparatory, then the jury will decide to the jury was a misdirection, but still upheld the
whether they are in fact. The test distinguishes between conviction because there was no miscarriage of
when the defendant is "on the job" and when they are
justice.
merely preparing for the crime. In the case of Gullefer,
the Court of Appeal held that the defendant's acts were - Attempted electric shock to wife
too remote from the offence he was charged with
attempting, as he had not yet embarked upon the crime
proper. The actus reus of attempt is satisfied when the In Mohan [1976] QB 1, D was driving his car and, in
defendant embarks upon the crime proper. response to a police officer’s signal to stop, accelerated
towards the police officer, who moved out of the way. D
drove off. D was charged with attempting to cause
This test was also adopted in Campbell (1991) 93 Cr bodily harm by wanton driving at a police constable.
App R 350, where D was charged with attempted The jury was directed that the prosecution had to prove
robbery of a Post Office. He had reconnoitered the that D realised that such wanton driving would be likely
place, bought a disguise and imitation firearm and had to cause bodily harm. The Court of Appeal quashed D’s
armed himself with a threatening note he was intending conviction, ruling that a conviction for an attempt to
cause bodily harm by dangerous driving requires proof
that D intended to cause harm by dangerous driving. It
was not sufficient to prove that D did not care whether
he hit the police officer when attempting to escape, nor Impossible attempts
that he knew it was likely.

Under common law, a person could be found guilty of

Circumstances an attempt even if their actions were unlikely to
succeed in committing the crime, but they couldn't be
guilty of an attempt if what they were doing wasn't a
One qualification is in order. Consider crimes which crime in the first place.
require proof not only that a particular result has
occurred but also that certain circumstances exist. An
example is rape. The result which must be proved for In the case of Shivpuri, the defendant was paid to
the substantive offence is sexual intercourse; the transport a package that he believed contained drugs.
circumstance which must be proved is absence of the However, the package actually contained a harmless
victim’s consent. The corresponding mens rea for rape vegetable substance. The defendant was convicted for
is an intention to have intercourse and knowledge that attempting to be involved in dealing with drugs. The
V is not consenting or absence of reasonable grounds House of Lords upheld the conviction and clarified that
for believing that V is consenting. What is the the key questions in such cases are whether the
corresponding mens rea for attempted rape? defendant intended to commit the offense and whether
the acts he did were more than merely preparatory to
the commission of the offense. In this case, the
There are two possibilities. The first is that, in addition defendant's acts were deemed more than preparatory,
to an intention to have intercourse, D also has to intend leading to the conclusion that he was rightly convicted.
(i.e. know for a fact) that V is not consenting. This would
acquit of attempted rape any person who tried to have
intercourse with a person and simply did not care
whether the person was consenting or not (the vast
majority). In Khan [1990] 1 WLR 813, it was held, at a
time when recklessness as to consent was the minimum
mens rea requirement, that recklessness as to the
circumstances was also enough for attempted rape:
that is, it was sufficient that D tried to have intercourse
with V, not caring one way or the other whether she
was consenting or not.

The Khan approach to attempts has been expanded to

other crimes. For example, in A-G’s Reference (No 3 of
1992) [1994] 2 All ER 121, in relation to a charge of
attempted aggravated arson contrary to s.1(2) of the
Criminal Damage Act 1971, it was held that it was
sufficient for the prosecution to establish a specific
intent to cause damage by fire and that D was reckless
as to whether life would thereby be endangered. It was
not necessary to prove that D intended that the lives of
others would be endangered by the damage.