Irish Criminal Law Notes

 TO PERPETRATE A CRIME MEANS TO COMMIT ITS ACTUS REUS WITH THE REQUISITE MENS REA

•
•

Conduct v. Circumstance – Rape (Act of sex v. absence of
consent)
Result crime – murder (x stabbed victim v. the death was
caused by x’s conduct)

1

PAGE 3

ACTUS REUS

•

•
•

Every Criminal Prosecution must
be proof of the actus reus.
•

Actus Reus = Conduct + Circumstances
Can include an omission (A failure to act/ Omission
can create criminal liability)

PAGE 2

External and Physical Elements
of a crime

This occurs when:
1. A breach of duty to Act in a particular manner.

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
1
 Haughton
 v.
 Smith
 [1975]
 AC
 
2
 Mitchel
 &
 Anor
 v.
 Glasgow
 City
 Council


 [2009]
 

2

[An omission does not ordinarily attribute criminal liability. It only does when
there is some “additional feature“ transforming a mere omission into a breach
of legal duty to take reasonable steps to try and safe guard the person from harm
or injury may arise due to the accused playing a causative link in the train of
events leading to this, a duty then arises to minimize or avert risk. Sometimes it’s
a relationship between the victim and accused or a relationship between the
defendant and the place where risks arises, sometimes it’s the assumption by the
defendant of responsibility for the person at risk or injury.]

2. Actus reus of an offence is defined as including an omission

Actus Reus of offence legislated to
include omission

•

R v. Dytham [1979] – Common Law Duty on Police Officer

•

DPP v. Bartley Criminal Court [1997] – if a public

•

Section 19(1) of the Criminal Justice Act 2001 – a

to perform a duty and fails to intervene
official does so without lawful excuse
duty not to with hold information 1) to prevent the commission
of a crime, 2) failing to give information regarding apprehension
of a suspect

Where omissions don’t create a duty – Withholding Life Support
•
•

Airedale NHS Trust v. Bland [1993] – Discontinuing life support allows a patient to die
as a result of a pre-existing condition. Lawful as long as he does not commit such a breach of a
duty to patient.
Re: Ward of Court [1995] – Discontinuing life support allows a patient to die as a result
of a pre-existing condition. Lawful as long as he does not commit such a breach of a duty to
patient.

OMISSION LIABILITY
1)
2)
3)
4)

Blood or Familiar Relations –
Parents and Children R v. Gibbons & Anor [1918] – withholding food and neglect
Spouses – DPP v. O’Brien [1998]- There lies a duty to a man cohabiting with his wife and mother of his children
Siblings – R v. Stone and Anor [1977] – Duty arose due to sibling relationship. [See also voluntary assumption of
risk]

5) Siblings – R v. Evans [2009] – Duty arose due to sibling relationship regarding heroin overdose where sister knew
she was overdosing.

6) Voluntary Assumption of Responsibility - R v. Stone and Anor [1977] – Duty arose as they had given
7)
8)

sister food and looked after her but then neglected her and she then dies, they assumed the risk for her.
See Also – R v. Nicholls – She looked after grandchild who dies as a result of her neglect
Contract – R v. Pitwood [1902] – Duty arose as the an employee had a contractual duty to open and close a gate,
cart went through gate after he forgot to close it and people were killed.
Creation of Danger – R v. Miller [1983] - Fell asleep and left a cigarette burning which caused damage to
property – he awoke saw mattress was smoking and then did nothing about it.

Factual Causation
Causation is not necessary in conduct
offences – Where the accused conduct
caused a result
R v. Nette [2001] distinguishes factual
causation and legal causation
Factual Causation is “But for” test and
includes the medical, mechanical or
physical elements of the crime

CAUSATION

Legal Causation
In order to attribute legal causation there
needs to have contributed to the result in
more than a mere factual way.
R v. Maybin (2012) - Two people punched a
victim and it was undetermined which blow
caused the death

Break in the chain of causation -Novus Actus Interveniens (Must be voluntary conduct/ Extreme
Negligence)
Medical Intervention –
Withdrawal of life support
1) R v. Steel [1981] – The withdrawal of life support does not break the chain of causation provided doctor is competent
and careful .
2) DPP v. Dunne [2014] - As long as decision to switch off life support is lawful and proper it does not break the
chain of causation
Medical Negligence (Must be extremely negligent in order to qualify)
1) R v. Jordan [1956] – death resulting from any normal treatment employed to treat an injury flowing from a felonious
act may be regarded as having been caused by the felony.
2) R v. Smith [1959] – Court found that the treatment was wrong but that the “wound” created during the felony was an
operating and substantial cause of the death and thus it did not break the chain of causation. The second cause must be
so overwhelming for it to break the chain of causation.
3) R v. McKechnie (1991) – Only an “extraordinary and unusual decision” by doctors would break the chain of
causation.
Non - Medical Negligence (Is the intervening Act so powerful)
1) AG v. McGrath [1960] – Third party intervention does not break the chain if it formed part of the normal link.
2) R v. Pagett [1983] - Using your GF as a shield against bullets does not break the chain of causation, as the conduct was
involuntary, they acted in self defense and in the discharge of a lawful duty.
3) Impress v. Rees [1971] – So powerful a force that the conduct of the defendant was not the cause but a surrounding
circumstance
4) Environmental Agency v. Empress Co. – Only a circumstance that can be considered as extraordinary would break the
chain in causation.
5) In murder – Smithers v. Queen [1978] Approved in R v. Maybin– Was the accused’s conduct a significant
contributing cause to the deceased’s death (2 tests to consider – (Reasonable foreseeability) and (intentional,
independent act) ( should the accused be punished for his actions or is it punishing the morally innocent)
Natural Events – (Event occurring in the ordinary course of nature wont break chain of causation)
1) R v. Hallet [1969] – A tide coming in caused the victim to drown after he was assaulted – not an extraordinary
operation of natural forces)
Victims Conduct –
Negligence of Victim1) AG v. Gallagher [1972] – Negligence of victim does not break the chain of causation provided the accused’s act is one
of the causes which contributed in a “real or substantial” way to the death. (Real contribution test)
2) In DPP v. Davis [2001] (Approved in DPP v. Dunne)– Contribution to the death in more than a minimal way – the
chain is not broken.
Neglecting an injury
1) R v. Flynn [1867] – Neglecting an injury and failing to seek medical attention does not break the chain of causation.
Refusing Medical Treatment (R v. Blaue) – Egg-Shell Skull Rule in criminal cases)
1) R v. Holland (1841) followed (R v. Blaue) – The refusal of treatment does not break the chain of causation.
Escaping Attack
1) R v. Roberts (1972)– Woman jumped from her bf’s moving car to escape– victims reaction reasonably foreseeable.
Victims Own Voluntary Act
1) R v. Kennedy (2008)– Supply of drugs – freely and voluntarily administered – broke the chain of causation.

Conduct and Circumstances –
require proof of corresponding
mens rea.
In order for mens rea there must
be proof that conduct was –
1) Voluntary Conduct or
2) Reckless Conduct or
3) Intentional
Transferred mens rea – that intention was
Transferred to different victim.
i.e. intended to shoot X but shot Y.

Mens Rea – “Guilty Mind”

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Hyam v. DPP – although a particular result is not his
aim or purpose, a person intends to cause it if he
foresees it as a highly probable consequence of his
actions. Here, the appellant must have foreseen death
or grievous bodily harm as a highly probable
consequence of her actions. Accordingly, she intended
to kill or to cause grievous bodily harm.
 

Recklessness – A person acts recklessly if (1) he takes a risk (2) taking a risk is unjustified, (3) he is aware of the risk.
( taking an unjustified risk of causing that result, which he is aware of)
Recklessness is a subjective in the accused’s awareness of the risk. A person is objectively reckless if he takes an unjustified risk
of which he is unaware, but of which he should have been aware.
People (DPP) v. Murray [1977]- Spotted off duty Garda after a robbery, he gave chase at which stage he was on duty. He was
apprehending the husband. Wife shot him – The question in their conviction of murder was there an onus on proving he was an
on duty Garda. – Court held person acts recklessly with respect to s material element of a crime to be reckless when he
consciously disregards a substantial and unjustifiable risk that a material element exists or will result from his conduct.
To be reckless requires a conscious taking of risk.
People (DPP) v. Cagney[2008]- Test for recklessness is Subjective irrespective of the crime. An Accused is reckless if he would
foresee the the risk that his conduct would bring about the relevant result.
People DPP v. Clifford [2008] – Recklessness in respect of rape [i.e reckless as to whether there was consent or not] – test as
held in Murray.
Law in England and Wales
Subjective Test for recklessness in England and Wales was established in cases like R v. Cunningham [1951], and R v.
Mowatt
Test changed in R v. Cadwell [1982]- included elements of both subjective and objective variety – Deciding to ignore risk of
harmful consequences resulting from ones acts that one has recognized as existing and failing to give any thought to whether or
not any there are any such risks in the circumstances where if it were given it would be obvious.
Intention – sometimes it is necessary to prove that the accused intended the result.
R v. Moloney [1985] – person may intend to achieve something without desiring to do so.
R v. Lewis – a person may intend to achieve something without having a motive for doing so. Proved absence of a motive is an
important fact in favour of the accused conversely proved motive is may be an important factual ingredient. See also (Clifford v.
DPP).
A person may have intended to achieve something without premeditating it. Intention can be formed on the spot.
R v. Walker and Anor [1989] - A person intends to achieve something if it is his aim or purpose. (Direct purposive intention sees
(DPP v. Murray) (Not only did he foresee but willed the consequences of his actions)
DPP v. Douglas and Anor [1985] – Unless accused has expressed intent, it can only be ascertained from a consideration of his
actions and surrounding circumstances.
“The recklessness principle” – the more reckless a person is as to whether or not he causes a particular result , the more likely
he intended such a result.
An accused is presumed to have intended the natural and probable consequences of his actions
It’s a rebuttable presumption which prosecution must prove has not been so rebutted beyond reasonable doubt – see DPP v.
McBride [1997]
Hyam v. DPP [1975] – Circumstances which give rise to intention even if it is not the intention or purpose – Accused set fire
to a house with intention to scare – people died – a person intends a result if the consequences of it are highly probable
House of lords in R v. Maloney [1985] departed from this strict approach and held there was a difference between intent and
foreseeability but that intent may be inferred from certain foresight. In R v. Hancock v. Shankland – reverted to the position the
greater the probability of a consequence the more likely it is that the consequence was foreseen, and if the consequence was
foreseen the greater the probability it was intended.
R v. Nederick [1986] - jury can infer intention when they feel sure that death or serious injury was a virtual certainty of the
accused’s conduct and the accused appreciated it.
R v. Woollin [1998] – Test ( 1) A result is intended when it’s the actors purpose (2) a result is intended although not the
purpose when the result is virtually certain consequence of the act, the actor is aware it is a virtual certainty of the act.
Clifford v. Dpp [2008] – court endorsed – indirect/oblique intention to mean – the closer the conduct comes to inevitably
causing the consequence the more likely the court will accept it is the intention and the more obscure the consequence the less
likely the court will infer an intention.

Strict Liability

Minister of Justice v. Dolney [2008] – Consent is not
a Defense to Assault causing Harm in terms of
Section 3
Assault causing harm is a strict liability offence.
 

The general rule requires conduct, circumstances and result to coincide with mens rea. The conduct must always be voluntary.
Stricy liability offences do not require the corresponding proof of mens rea. If the actus reas has been proved the accused is
guilty of the offence.
Whitehouse v. Lemon Gay News [1979] - Blasphemy is a crime of strict liability.
Corway v. Independent Newspapers [2000] - Whitehouse not followed in Ireland.
Gibson v. Sylviere [1991] Outraging public decency- strict liability no need to prove recklessness or intention. Only voluntary
display.
Kelly v. O’Neil [2000] – criminal contempt was previously strict liability – held mens rea would be necessary now.
Legislation is the most common place where an offence is one of strict liability –where it is silent it is presumed it carries both
(DPP v. Murray[1977])
The presence of mens rea as an ingredient of crime is a rebuttable presumption. Sherras v. De Rutzen [1895]
People DPP v. Ebbs [2011] – Absence of mens rea an important feature and the absence of it
THE OBJECT OF THE LEGISLATION– Madam v. Dublin United Tramways [1929] –overloading of train – did not
have to prove intention to overload or recklessness – strict liability – as the intention of legislation was to protect
public.(intention considered in sentencing) (this case also only attracted a result which did not carry the stigma of a
criminal conviction)
Maguire v. Shannon Regional Fisheries [1994] – Strict liability to offence of pollution – would create greater vigilance on
societies part.
Shannon v. Regional Fisheries – knowingly discharged sewerage into river as funding was not forthcoming – court said it was
undesirable for such offences to be strict but this case mens rea existed anyways. ( a fine of 25000-00 or 5 years imprisonment
are clearly not trivial or not strictly criminal they clearly are)
THE MORE SERIOUS THE OFFENCE THE LESS LIKELY IT WILL BE ONE OF STRICT LIABILITY
See- Sweet v. Presely [1970] – scandal to imprison someone for a serious crime who was not blameworthy.
R v. Brown [2013] – court held that where a crime carries serious punishment or stigma there is a need for a requisite mens
rea.
THE INTENTION OF THE LEGISLATION Court will decide what Oirachtas intended and consider the legislation as a whole together with other wording within the
legislation. If other sections include mens rea and the one under consideration does not then it will be an offence of strict
liability.
CC v. Ireland and Others – S(1) 1 of the Criminal Law Amendment Act 1935 – is inconsistent with the Constitution - a man
who engages in sex with a girl under 15 years old should not attract an approach which is one of strict liability – The court held
one year after deciding CC v. Ireland that the Act was inconsistent with the Constitution in respect of Article 40 (The right to
liberty and fair treatment of their good name) Therefore the consequence was that there is little chance an offence under strict
liability which carries a serious penalty will pass constitutional scrutiny.
In B(a minor) v. DPP [2000] court it necessary to consider the reasonable and honest belief test to determine girls age (
committing act of indecency) upheld in R v. K [2002]
The useful definition in Gammon v. Attorney General (Hong Kong) – 1985 1) Presumption that mens rea is required before a
person is guilty of a crime, 2) presumption is strong where offence is truly criminal 3) Applies to statutory offences and can be
displaced only if it clearly or is necessary to give effect to the statute.4) can only be displaced when it is for an issue of social
concern or public safety 5) Even where a statute is concerned with such an issue the the presumption of mens rea stands unless it
can be shown that the creation of strict liability will be effective to the promotion of the statute by encouraging greater vigilance
to the commission of a prohibited act.

Accomplices

Criminal liability may extend to those that assist in
or participate in a crime

Innocent Agent - a different person commits the actus reus of
the crime without intention or any willingness to do so.
A person is an innocent agent if he 1)lacks requisite mens rea
2)has a defense 3)lacks criminal responsibility.
R v. Cogan and Leak –[1976] – man procured a person to have
non consensual sex with his wife – did not know she wasn’t
willing husband guilty of committing offence – other man only
committed actus reus.
R v. Bourne[1952] – coerced his wife to have sex with a dog –
wife not guilty innocent agent.
Children Under 12 years may be innocent agents – Children
under 10 are completely innocent agents.

Accessories and their criminal liability is governed by Section 7(1) of the Criminal Law Act 1997 or
s22
 Petty
 sessions
 (Ireland)
 Act
 1851
 
Any person who procures, aides, abets or counsels the commission of an indictable offence is liable as a
principal offender. (guilty of an offence of “murder” as an accessory)
The Actus Reus which must be proved:
Aids- A person aids the commission of an offence if he assist in its commission –wide variety of form
i.e. lookout, providing murder weapon.
Abets – Incite, instigate or encourage similar to Counsel – in fact the same only that abets may be at
the time of the crime where as counsel may be prior to its commission.
The SMALLEST ENCOURAGEMENT constitutes abetting or counseling – R v. Giannetto [1997]
THERE must be a causative link between encouragement or incitement and the commission of
the offence.
Generally Speaking the mere presence at a scene where a crime is committed will not be sufficient to
demonstrate a causative link – R v. Coney [1882] If however someone is merely present and their
presence is not accidental it will be for the jury to decide whether such presence can be attributed to
some causative link.
In AG v. Ryan (1966)- mere presence did suffice as there was a causative link between commission of
the offence and Ryans presence i.e. he was the leader of the gang. “Knowingly lend him support in his
enterprise i.e. the man slaughter is sufficient to mean he is abetting” Meaning that if he is present and he
knows his presence will assist in the commission of the crime it will suffice. – See in this regard R v.
Charkson [1971] – heard a rape did not participate or encourage were found not guilty – not sufficient
that the accused derived assistance from their presence but that they intended their presence to assist.
In DPP v. Joran and Ano [2006] – The encouragement need not be express and can be implied – but
mere presence cannot be successful to secure a conviction.
DPP v. Boyle [2010] – upheld accused must encourage or incite mere presence does not suffice.
Procures – procure an offence when you for example place alcohol in another persons drink causing
them to commit the offence of drink driving.

COMMON DESIGN - PAGE 7
Accessory After the Fact –
Section 7(2) of 1997 Act – 1)a person has committed an arrestable
offence 2) any other person who knowing or believing him to have
committed such an offence or of some other arrestable offence
3) does without reasonable excuse act with intent to impede his
apprehension or prosecution shall be guilty of an offence
Must be proved that all three factors were present.
It does not have to be proved that X knew the exact crime Y
committed it is enough to prove that he believed Y had committed
some arrestable offence.
Concealing an arrestable offence for reward –
Section 8 of the 1997 Act – x says to y if he catches him breaking
into house – give me 20k and I wont tell anyone – unlawful – if he
says I wont tell anyone if you giver me money for window- not
unlawful – reasonable compensation fine.
Withholding Information – Section 19 of the 1997 Act – guilty
of offense if they have info that could prevent crime or have info
that prevents
Note also Section 2 and 3 of Criminal Justice Act 2012 – a crime
to withhold info for crimes against children and vulnerable
people.

Common Design Cont.
Common Design – An agreement between two or more persons to commit a crime (only applies if
something went wrong)
R v. Stewart and Schofield [1995] – Is there a difference between being guilty as an accessory or parties
to the common design? Court said it is not the same thing.
A person who is a mere accessory is only a secondary party to the commission of the crime although he
may be charged as a principal offender. Where the crime is joint design – the allegation is that the
defendant participated in the criminal act of another.
R v. Gnango [2012] – man shot a person who was not intended victim whilst in a gun-fight. Court could
not decide whether the party who did not fire the shot was a party tyo common design or a mere
accessory.
Any offense involving an agreement may be considered as a crime by means of common design.
R v. Anderson and Morris [ 1966] – Parties who embark in criminal enterprise jointly may be liable for
consequence which are unusual. i.e. X and Y rob a bank. X shoots Z. Y is liable.
DPP v. Murray [1977] – going beyond the scope of the common design – need to determine what the
agreement is and was and the communication between the parties. i.e. recklessly shoot Garda. If you
go beyond common design may not be liable.
AG v. Ryan [1966] – mere contemplation sufficient not only an agreement (where accused realized if his
men carried gun and met rival - gun likely to be used and outcome would be to injure)
DPP v. Eccles [1986] - overcoming resistance of Garda force would be used – meant that firearms and
shooting Garda would be part of common design.
DPP v. Cumberton - accused arranged for party to be a particular place on a particular day – accused
maintained he was going to get a good hiding not going to be killed ( however cause of intention to cause
serious harm part of common design) – responsible for the outcome of what may be reasonably
contemplated within the scope of the plan.
R v. Powell and R v. English [1999]– may be liable for the act which he contemplates may be carried
out by the other in the course of an enterprise even if not expressly or tacitly agreed.
R v. Powell and R v. English [1999]– ought to be in the manner the accused foresaw – death was by
knife not club and so murder conviction quashed.
However the consideration in Powell and English not favored in Ireland – I.e. DPP v. Doohan [2002] –
hired hit man to cause serious injury to him – hit man shot and killed him with gun – the method did not
exceed scope. All that is necessary is an agreement to cause serious injury is all that is necessary,

Abandonment of Common Design
X, Y and Z are going to rob a bank. that morning, X decides not to
go and the others do it without him May be guilty as an accessory
or under doctrine of common design but he may be able to use the
defence that he abandoned/withdrew from the common design
R v. Whitehouse [1940] – for defense - Must
 be
 the
 absence
 of
 
exceptional
 circumstances,
 
 something
 more
 than
 mere
 mental
 
change
 of
 intention
 and
 physical
 change
 of
 place
 by
 those
 
associated
 who
 wish
 to
 dissociate
 themselves
 from
 the
 
consequences
 attendant
 upon
 their
 willing
 assistance
 up
 to
 the
 
moment
 of
 the
 actual
 commission
 of
 the
 crime.
 
 Accused
 must
 
have
 indicated
 intention
 to
 withdraw
 in
 a
 timely
 fashion
 (what
 
constitutes
 timely
 communication
 will
 depend
 on
 facts
 of
 case)
 if
 
communication
 is
 impossible,
 the
 guarda
 should
 be
 informed.
 
 
R
 v.
 Jansen
 and
 Ward
 [1980]–
 sometimes
 positive
 act
 required
 
such
 as
 telling
 police.
 
 
People
 v.
 Ryan
 [1966]
 –
 need
 to
 communicate
 withdrawal
 of
 
common
 design
 not
 satisfactory
 to
 tell
 parties
 not
 associated
 
with
 the
 common
 design.
 
 
R
 v.
 Gauthier[2013]
 –
 1)
 there
 was
 intention
 to
 withdraw
 
from
 unlawful
 purpose
 2)
 timely
 communication
 of
 
withdrawal
 3)
 communication
 served
 unequivocal
 notice
 4)
 
took
 steps
 reasonable
 to
 the
 accused
 to
 neutralize
 or
 cancel
 
out
 participation
 
 

 

 


 

MURDER

Homicide

Section 4, Criminal Justice Act, 1964 - Where
 a
 person
 kills
 another
 unlawfully
 the
 killing
 is
 not
 murder
 unless
 the
 accused
 
intended
 to
 kill
 or
 cause
 serious
 injury
 to
 some
 person
 whether
 the
 person
 was
 actually
 killed
 or
 not
 
To secure a conviction for murder it must be proved that 1) The accused conducts caused the victim’s death – actus reus 2) The
accused intended to kill or seriously injure some person – mens rea The killing was unlawful (absence of any defense)
R v. Gnango [2012] – It does not have to be proved that the accused intended to kill or seriously injure the victim – doctrine of
transferred malice
DPP v. McBride [1997] -
 prosecution must prove beyond all reasonable doubt that the accused intended the natural and probable
consequences of his actions and does not have to prove that he intended to kill specific victim – i.e. if I intend to shoot and kill y but
kill x then I am guilty transferred malice.
Punishment - Mandatory sentence of life imprisonment
Murder under s 3 of 1990 Act -on duty guard or prison officer, foreign head of state etc., murders involving the furtherance of
aims of certain illegal organizations [previously carried death penalty – this has been abolished]
MANSLAUGHTER - Competent alternative to murder (Sec. 5 of Offences against the person Act 1861 - Maximum punishment – life imprisonment – mandatory
in murder)
Two Types of Manslaughter - Voluntary and Involuntary Manslaughter
Voluntary Manslaughter – Is the unlawful and intentional killing of a person where at the time of the killing the following facts are present: 1) Whilst acting in self
defense the accused exercised more force than should be reasonably exercised although no more than he honestly believed necessary 2)He had lost sudden, temporary
and total control of himself as a result of having been provoked – See provocation 3) responsibility for his conduct diminished.
Involuntary Manslaughter – means Accused did not intend to kill or cause serious injury to deceased.
Assault Manslaughter- R v. Holzer [1968] – 1) Accused assaulted deceased, 2) Accused caused deceased’s death 3) At the time of the assault the accused intended to
cause less than serious injury but more than trivial or negligible injury.
Criminal and Dangerous Act Manslaughter - R v. Kennedy [2008] 1) Accused committed an unlawful act 2) Such act was a crime – R v. Crosbie and Anor [1966] 3)
The accused’s act was a significant cause to the deceased’s death. 4) The accused’s act was objectively dangerous – R. v. Larkin [1943] ( Where a person engaged in
some form of criminal act and the act is dangerous i.e. likely to injure another person, and quite inadvertently causes death he is guilty of manslaughter)
DPP v. Horgan [2007] – unlawful and dangerous act manslaughter arises where – 1) act causing death constitutes a criminal offense and poses a risk of bodily
harm to another 2) the act is one which an ordinary reasonable person would consider dangerous and likely to cause bodily harm 3) dangerous is to be judged
objectively. See Also Attorney Generals Reference [1997] – man stabbed woman in womb – baby died 121 days later.
Criminal Negligent Manslaughter - People AG v. Dunleavy [1948] – requirement that criminally negligent conduct can be considered to be manslaughter – but
negligence of a high degree – Dunleavy vehicular manslaughter driving wring side of road at night with no lights killed cyclist – negligence must be high and
conviction not upheld.
DPP v. Callagh [1999] – rust at funfair – question what duty of care was owed – question of degree of care owed – i.e. negligence.
Joel v. DPP [2012] – death of another is caused where there is a very high degree of negligence caused the death – in the circumstances in question any reasonable
person would have seen that the risk was so serious which was unjustifiably taken with the life of another.
Dangerous Driving – If x knocks down y and kills him while driving – criminal negligent manslaughter if cannot prove criminal negligence sill may be guilty under
Section 53 of the Road Traffic Act 1961 – People v. Quinlan [1963] – driving in a manner of a prudent motorist , having consideration to all circumstances, would
clearly recognize as involving a serious and direct risk to the public - 10 years
Infanticide – Mother who is imbalanced kills her child under 12- Section 1(3) of the Infanticide Act 1949 - and amended by S22 of the Criminal Law Act 2006. ( what
reduces the crime from murder to infanticide is the imbalanced mind)
Destruction of unborn life - Article 40.3.3. – means a person may be guilty of murder or manslaughter if it kills the unborn child see also Roche v. Roche [2010]
SUICIDE – Flemming v. Ireland – Offence contrary to Section 2(2) of the1993 Act - precludes assisted suicide as upheld in Flemming. However if you commit actus
reus of offence with mens rea of murder may be guilty of murder.

Non – Fatal Offences
Against the Person

NON-FATAL OFFENCES AGAINST THE PERSONS – governed predominately by Non Fatal Offences Against the Persons Act 1997 – NB this act
will be provided during exam – so question will come up from this chapter.
ASSAULT (fine or six months imprisonment)– Section (2)(1) – Actus Reus – A person who without lawful excuse voluntarily 1) directly applies
force to or causes impact on the body of another, 2) causes another to believe on reasonable grounds that he or she is likely immediately to be
subjected to force or impact without the consent of the other. (slightest touch constitutes force) applying force directly or indirectly- heat, light,
electric current, noise. See DPP v. K (a minor) -Boy went to toilet had acid poured it into a dryer – next person using it was hurt – boy liable.
R v. Ireland [1998] - proposition that a gesture may amount to assault but words can never suffice is unrealistic as a thing said is a thing done. A thing said
could cause an apprehension of immediate personal violence. In this case a court said a person who suggested to a woman come with me or ill stab you is
assault as are silent phone calls depending on the facts. It depends on the impact of the person accosting a person – requires immediate apprehension of
imminent danger.
Without lawful excuse – Sec. 18 of the 1997 Act. – lawful excuse means with a defense – 1) self defense – defend person or property 2) prevent a crime,
effect or assist with a lawful arrest conduct reasonable in circumstances as he honestly believed them to be.
Must be proved that accused did not consent to assault – certain times assault is consented to in an implied way - Consent – Collins v. Wilcock
[1984] - i.e. at a party or in a supermarket consent to jostling or a handshake would not be an assault as persons are aware in society by attending such
places there might be some contact. Sec. 2 of 1997 Act – Implied consent
Mens Rea of Assault is intention or recklessness.
Assault causing harm Sec. 3(1) – (12 months/or 5 years on indictment plus unlimited fine) prove- 1) assaulted another person and 2) the assault caused
harm to that person.
must be unbroken chain of causation between assault and the harm.
In assault causing harm – consent is not a defense to crime and consent will not negate criminal liability- See R v. Brown and Others [1994] – Sadomasochistic ritual of beating and bodily harm in UK same as Assault causing harm – House of Lords said consent did not negate criminal liability.
Consent is valid in lawful activity like a doctor operating on you, sporting activity etc. - law has an obligation to restrict society harming themselves and
others. Activity involved a real danger and corruption of young men and in this case was good luck rather than good judgment that prevented serious injury.
– Applied in R v. Emmett [1999]
Laskey v. UK [1997] – Did not breach article 8 – right to privacy.
R v. Wilson [1996] –distinguished – hot knife on buttocks – no more dangerous than tattooing.
Assault causing harm – strict liability offence - Law Reform v. Dolney [2008] – consent not a defense and no need to prove mens rea of intention or
recklessness!
Causing Serious Harm (Sec 4(1)) 1997 Act (life imprisonment/ undefined fine) – a person who intentionally or recklessly causes serious harm to
another is guilty of an offense. 1)Accused caused the harm 2) serious harm was intentionally or recklessly caused. Injury does not have to be permanent to
constitute serious harm. DPP v. Kirwan [2005] – an injury does not require proof of an injury with protracted or long term consequences. (“Serious
harm” does not include harm of the mind which is the case of “harm”) Section 1 defines serious harm. Treatment of injury may transform harm into
serious harm. No protracted impairment of the body is necessary.
Threat to Kill or cause serious harm – Section 5 (12 months / 10 years on indictment)
Coercion (Section 9 (1) (12 months/5 years)– engaging in certain specified conduct for the purpose of forcing another to 1) do something that he has a
lawful right not to do 2 not to do something he has a lawful right not to do. No need to prove he achieved purpose to convict.
Harassment / Stalking (12 months/ 7 years) (Section 10 (1)) persistently watching, following pestering, besetting, or communicating. DPP v. Lynch
[2010] (masturbation watching children on separate occasions – still persistent) –requires mens rea to act intentionally or recklessly and seriously
interferes with the others peace or privacy or causes alarm , distress or harm. That these acts are such that a reasonable person viewed objectively would
realize that the acts would seriously interfere with the others peace or privacy, cause alarm, distress or harm.
Demands for debt and payment - Section 11 (1) of the 1997 Act (Class C Fine) – the demand by reason of their frequency are calculated to subject the
detor or his family member to be alarmed, distressed, or humiliated, or he falsely misrepresents there are criminal proceedings pending for non payment, or
he misrepresents he has some lawful right to enforce such debts.

Non – Fatal Offences
Against the Person

NON-FATAL OFFENCES AGAINST THE PERSONS –
Poisoning - Section 12 (1) of the 1997 Act (12 months/ 3 years)– intentionally or recklessly administers to or causes another to take a substance which they
know to be capable of interfering substantially with the others body functions. (Sleep or unconsciousness is satisfactory) – consider date rape drugs …
2 offences – 1) administering poison (R v. Gillard (1988) sprayed poison in face) 2) causing a poison to be taken by another person.
Mens Rea of poisoning – the administration of poison was intentional or reckless, that the accused knew the victim did not consent and that the accused knew that
the substance was a poison.
Endangerment – Section 13 of the 1997 Act (12 months/ 7 years)- a person who intentionally or recklessly engages in conduct, which creates a substantial
risk of death or serious harm to another. (Serious harm defined in S 1 of the Act) – DPP v. Cagney [2008] – may be unconstitutional as it may be foul of
doctrine of vagueness. (Art. 38.1) ( Doctrine confirmed in AG v Cunnigham [1932] // King v. AG [1981])
Endangering Traffic – Section 14 (1) – more specific – 12 months / 7 years. Intentionally places or throws dangerous obstruction onto railway, road street etc.
or affects machinery etc and is aware that injury to person or damage to property may be caused or is reckless in this regard.
False Imprisonment – Section 15 of the 1997 Act. (12 months/life) - Taking or detaining or causing someone to be taken or detained or otherwise restricting the
personal liberty of someone without consent.
Bird v. Jones [1845] – Surrounding person on three sides does not amount to false imprisonment – total restraint of the liberty of another. (Not law as S15 of the
Act does not require this)
Kane v. Govoner of Mountjoy Prison [1988] – following a person around and keeping them under surveillance may amount to false imprisonment. – must be
specific justification for it. (this case was not imprisonment as they had a right to do so).
False imprisonment may be momentarily – Dullaghan v. Hilton and King [1957] (consent dealt with in Sec. 15(2).
Child abduction – means child under 16 years.
Applies only to parent ,guardian etc – must be appointed by court or an actual guardian.
Removal of children from persons entitled to lawful control – S17 of the Act.
SEXUAL OFFENCES S2(1) Criminal law (rape)act 1981
Gender specific – man’s penis penetrating a vagina who at the time of the intercourse does not consent to it
-at that time he knows she does not consent to it or is reckless about the consent
Sexual intercourse= penetration of vagina by penis. Penetration of mouth or anus by a penis is not sexual intercourse
-the slightest penetration is intercourse (The People (AG) v. Dermody [1956] - the complainant said the accused’s penis entered her vagina a ‘wee bit’) -a woman
can revoke her consent at any stage during sexual intercourse, if she does so and the man continues to have sex with her = rape ( it is a contuning act)) Kaitamaki
v R [1985]
DPP v. Morgan [1976] – THE MORGAN PRINCIPAL – Honest belief that there was consent even if such belief is unreasonable. (however in this case
they were convicted)
The more unreasonable a belief is the less likely it is honestly held. (Section (2)(2) 1981 RAPE ACT – applicable to all crimes involving consent.
Sexual Assault- Common law offence =- involves the accused assaulted the alleged victim and the victim did not consent accompanied by circumstances
of indecency and the accused intended the assault to be indecent. R v. Court – defines Assault – usually any intentional touching of another without the
consent of that person and without lawful excuse. There must be an element of something sexual in nature. Person does not need to be awake or conscious. i.e.
was there a basis that a jury could conclude that it was so irresistible that there was some act of indecency. Must have intended it to be sexual! R v. Bernier
[1998] intend an assault to be indecent without sexual gratification – playing with patients balls for his amusement is indecent assault.
Aggravated sexual assault
3(1)-using or threat of serious violence -is such to cause injury, humiliation or degradation of a grave nature to the person assaulted. It does not have to be proved
that a reasonable person would have been gravely humiliated or degraded.
Rape under Section 4- 1990 Act
-penetration (however slight) of an anus or mouth by a penis
Or
-the penetration (however slight) of a vagina by any object held or manipulated by another person
Only the above acts are included under section 4, this DOES NOT INCLUDE digital penetration of a vagina/anus or penetration of anus by an object


 

Non – Fatal Offences
Against the Person

NON-FATAL OFFENCES AGAINST THE PERSONS –
Rape under Section 4- 1990 Act
-penetration (however slight) of an anus or mouth by a penis
Or
-the penetration (however slight) of a vagina by any object held or manipulated by another person
Only the above acts are included under section 4, this DOES NOT INCLUDE digital penetration of a vagina/anus or penetration of anus by an object
Section 9 of the 1990 Act – Lack of resistance does not mean that consent is present.
Section 14 of the Criminal Law Amendment Act 1935- only applies to three sexual assaults (which is consent not a defense for child under 15)
Capacity
R v Camplin [1845]– a person can be so intoxicated to be incapable of consenting to sex. Immaturity, age, mental impairment may negate consent.
A person who is asleep or unconscious cannot consent - R v. JA [2011]
A threat of force does negate consent –
A threat by a garda to report a crime does not Rv. Kirby /Neither does a threat to false imprisonment.
Fraud – (Fraud as to identity) R v. Elbekkay [1995] (X procures consent by impersonating a husband) Same as attending party climbing into bed
with another mans wife she has sex with you because she believes it to be her husband this is rape. DPP v. C [2001]
Fraud as to nature of transaction – i.e. a medical procedure – See R v. Flattery [1877] – Also R v.Williams [1923]
Hegerty v. Shine – state of venial consent does not vitiate consent.
In Papadimitropoulos v. R [1957] – false marriage did not negate consent.
R v. Linekar – not paying for sex after a promise did not vitiate consent.
Essential element of intercourse is known –
DPP v. C [2001] Haggerty would not be followed today as court held –all knowledge and understanding of the facts material to the act being
consented to are necessary for consent to be voluntary.
PG v. Ireland – Mistake as to age is a valid defense to mistake of someone’s age in all sexual assaults.
Sexual offences against children
Criminal law (sexual offences) Act 2006
Defines Sexual act- intercourse/buggery between those not married to each other
-an act in s3(1) or criminal law(rape) (amendment) act 1990 (aggravated sexual assault)
-an act described in s4(1) of criminal law (rape) amendment act 1990
Person in authority = parent, step-parent, guardian, grandparent, uncle, aunt, someone who is in loco parentis or responsible for education, welfare or
supervision of child. It shall be a defense for defendant to prove that he or she honestly believed that the child was 15 at the time of the offence
The more unreasonable a belief is the less likely it is honestly held
Section (3) Child under 17 Years – same rules apply . Section 5 exempts a girl being prosecuted for sexual intercourse
Sexual offences against mentally impaired
Criminal law (sexual offences) act 1993
5(1)-an offence for a person to have or attempt buggery or sexual intercourse with a person who is mentally impaired OTHER than a person to whom he
is married or reasonably believes he is married to. Sec. 5(2) governs a gender specific offence – a male person who commits or attempts an act of gross
indecency with another male who is mentally impaired will be guilty of an offence
Mentally impaired = suffering from a disorder through mental handicap or mental illness which is of such a degree or nature that it renders them
incapable of living an independent life or of guarding against serious exploitation
It shall be a defence against 5(1) and 5(2) to show that the accused (at time of offence) did not know and had no reason to suspect that the person was
mentally impaired
(Remember a person can be so mentally impaired that they are incapable of consent, so rape could also be a possible charge in some cases)
Incest
Ss1 and 2 Punishment of Incest Act 1908 - Close blood relations engage in intercourseS1 offence for a male person to have sex with someone he knows
is his granddaughter, daughter, sister or mother S2
 an
 offence
 for
 a
 woman
 over
 17
 to
 consent
 to
 sex
 with
 a
 male
 she
 knows
 to
 be
 her
 grandfather,
 
father,
 brother
 or
 son Brother
 and
 sister
 also
 refer
 to
 half-­‐brother
 and
 half
 sister.

Offence Against
Property

OFFENCES AGAINST PROPERTY – CRIMINAL JUSTICE (THEFT AND FRAUD OFFENCES ACT 2001)
Theft : 4(1) dishonestly appropriating property without owners consent and with intention of depriving its owner of it
It must be proved owner did not consent. (Actus reusof theft is non-consensual appropriation of someone else’s property - conduct – taking property,
circumstances – no consent – mens rea – dishonestly i.e. intentionally or recklessly) Dishonesty means without a claim of right made in good faith..
Property means – money or any other property including things in action and may be tangible or intangible (R v. Morris) possession means to have control
over it. mens rea requires evidence that the accused deprived either temporarily or permanently. Secondly that it was dishonest. Dishonest means without a
claim made in good faith. Proving he did not honestly believe that he was entitled to do what he did. The more unreasonable a belief the less likely it is
going to be held. Exceptions – picking mushrooms or fungus for self consumption- bona fida purchaser – land cannot be stolen. Cant steal wild animals
unless you kill them.
Robbery: is Theft aggravated by the use or threat of force. Theft transformed to robbery if one of following is proved
1) the accused used force on the person 2) the accused put any person in fear of being immediately subjected to force 3) the accused attempted to put any
person in fear of being immediately subjected to force. ( Slightest touch constitutes robbery – see R v. Dawson – stole wallet but jostled him)
Resistance not necessary – R v. Coulden. Breaking into a car and stealing a handbag scaring someone may be robbery – DPP v. Mangan.
Threat or force must have been used at time of or during theft else no robbery. It must also be used for the purpose to enable the theft.
Making a gain or loss by deceptions Section (6) 1 of 2001 Act - Could be constitutionally challenged under doctrine of vagueness. Induces someone to act
or not to act. Must prove accused acted dishonestly.
Obtaining service by deception – Section 7.
Making off without payment – Section 8 of the Act.
Burglary – Section 12 of the 2001 Act. Entering any building or part of a building as a trespasser with intention to commit an arrestable offence.
Rv. Collins – Effective and substantial entry. R v. Brown – effective i.e. breaking window and leaning in to get goods – effectiveness. Rv.Ryan – got stuck
burglary upheld. Building means any temporary inhabited item moveable or immovable. Including vehicle and vessel.– See Section 12(2) of the Act.
Trespass –enter without permission. Permission to enter can be limited to a particular purpose. (enters a property as a trespasser to commit an arrestable
offence , when a person enters building and commits an arrestable offence whilst inside.
Aggravated burglary 13(1) Burglary (must be armed at moment of entry in terms of the first type of burglary or at the time of the commission of the offence
in the second type.) + firearm, imitation firearm, weapon of offence , explosive The accused must have been armed at moment of entry to be guilty of first
type of burglary (this type is committed at moment of entry)The second type is committed after entry when the arrestable offence is committed or attempted.
To be aggravated burglary the offender would have to have been armed at that time. R v. Murray [1972]. Must possess item using your hand is not
sufficient to constitute an imitation. – R v. Bentham [2005]
Handling and possessing stolen property Section 17(1) Guilty if , other than in the course of stealing, you know property is stolen or are reckless as to
whether it was stolen, dishonestly receives or arranges to receive it OR undertakes or assists in its retention, removal, disposal for the benefit of another
person or arranges to do so. Must take place otherwise than in the course of stealing it – thief not guilty of handling stolen property. To secure a conviction
someone other than the person handling it must have stolen it. DPP v. Fowler – DPP v O’Neil. Property must in fact be stolen. If x steals a car and sells it to
y for 10 euros and then uses the 10 euros to buy cd the cd is stolen property. Mens rea – intention or recklessness.
Forgery and using a false instrumentSect25(1) Actus reus is making a false instrument, it does not need to be proved that the accused ever used it.
Instrument = any document of formal or informal character including maps, plans, graphs, photographs, plan etc etc. Non exhaustive list of documents in
statute It is false if it purports 1) to have been made by a person who did not make 2) to have been made on authority of someone who did not authorize 3)to
have been altered by a person who did no alter it 4) to have been altered on authority of someone who did not authorise an alteration. 4) to have been made or
altered in circumstances in which it was not in fact made or altered 6)to have been made or altered by an existing person where that person does not exist .It is
not a defense to forgery that the instrument was already false by the time the accused altered it. Damaging Property 2(1) Intending to damage someone elses
property or being reckless as to whether or not it is damaged Property = real or personal including money, animals, data Lawful excuse if at the time of the
act the person believed that the owner of the property would have consented to the damage if they had known about the damage and the circumstances OR If
you damage property in order to protect yourself or someone else, your property or someone else’s property It is immaterial if a belief is justified or not if it is
honestly held.
Damaging Property- Section 2(1) – without lawful excuse damage property of another, reckless or intends to cause damage.
Damaging property – endangering life2(2) Offence to damage property INCLUDING YOUR OWN without lawful excuse if you intend to damage
property or are reckless about it AND you intend the damage to endanger the life of another or you are reckless as t whether or not the life of another would
be endangered It does not have to be proved that another’s life was endangered.
Damaging property with an intention to defraud2(3)Proof that the accused was aware of a risk of defrauding does not suffice to secure a conviction . It
must be proved that their purpose was to defraud. Recklessness defined in section 2(6)

DEFENSES:
.

Defense – Strict Liability – Reasonable Care –
M’Adam v. Dublin Tramway – Reaoanble Care not a defense
in strict liability offences
McGuire v. Shannon Fisheries – only considered at
sentencing.

Defenses

The People (DPP) v. Kelly, ‘the onus on the prosecution is not only to prove its case beyond reasonable doubt
but also to negative beyond reasonable doubt any defence raised by the accused’
The general rule does not apply in respect of the defences of insane automatism (insanity), diminished responsibility,
and unconstitutionality. If an accused raises any of these defences he bears the burden of proving it on the balance of
probability.
In the scenario outlined, the 9 year old boy, if charged with an offence in respect of his conduct, would be acquitted on
the ground that ‘ he was under 12 years of age’. Nevertheless, as s 18(3) of the 1997 Act makes clear, X would be able
to raise s 18(1)(d) and (e) of the 1997 Act in his defence.
Force must be Reasonable in the Circumstances as the Accused Honestly Believes them to be.
S 18(1) of the 1997 Act further provides that non-fatal force used by a person for any of the specified purposes must
be ‘reasonable in the circumstances, as he believes them to be’
The application of this ‘test’ is a 2 step process.
First, it must be asked: what were the circumstances as the accused believed them to be? The circumstances as they
existed in fact are irrelivant.
Secondly, it must be asked: was the non-fatal force used reasonable in those circumstances, ie, the circumstances as
the accused believed them to be?
Consider the following scenario:
X has been threatened with death by members of a notorious criminal gang. He has started to carry a knife on his
person solely for the purpose of protecting himself should the need to do so arise. One day, as he is walking on the
street, he is approached by Y. Believing that Y is a member of a criminal gang and the he, X, is about to be shot or
knifed, X produces his knife and stabs Y, who sustains a non-fatal injury. It subsequently transpires that Y was
approaching X to ask for directions. He was not a member of a criminal gang.
There is a special provision governing the use of non-fatal force against a guard, namely s 18(6) of the 1997 act:
“a person who believes circumstances to exist which would justify or excuse the use of force under that subsection has
no defence if he... knows that the force is used against a member of the Garda Siochana.
Section 18 of the 1997 Act does not apply to a person who sets out to create a situation in which it will become
necessary for him to use non-fatal force.

SELF DEFENSE CONTINUED
Duress
A threat emanating from another person necessitated my conduct, which, but for the necessity, would have been a crime.
Type of threat – only a threat of death or serious personal violence against a person can constitute duress. So, a threat merely to damage property or ruin someone’s reputation
does not constitute duress in criminal law.
The Immediacy Requirement – The threat must be one of immediate death or serious personal violence.
If the accused had resisted the threat and had not committed the crime, would the threat have been executed immediately or almost immediately after the accused’s resistance.
If the answer is ‘yes’, then the immediacy requirement is satisfied.
A person who is threatened with immediate death or serious personal violence is expected to display reasonable firmness in the face of it. As Murnaghan J said in The People (AG)
v. Whelan, the threat must of immediate death or serious personal violence must be ‘so great as to overbear the ordinary power of human resistance’.
Obligation to counteract the threatA person who is subjected to duress is obliged to avail of an opportunity that is reasonably open to him to counteract the threat. Practically
speaking, this obligation means that the protection of the guards should be obtained if there is a reasonable opportunity to do so.
Generally speaking, if such an opportunity is not taken, the defence of duress will not be available. Clearly, the more immediate a threat is, the less likely it is that there is such a
opportunity.
Self-Induced Duress
X vonuntarily joins a criminal gang. Some years later, he indicates to his comrades that he wants to leave the organisation. They tell him that, if he does leave it, he will be killed.
X continues to participate in the organisations criminal activities and now stands charged with various offences.
The court of Criminal Appeal was confronted with a similar scenario in R. V. Fitzpatrick. The case is authority for the proposition that if a person voluntarily exposes himself to a
situation in which it is likely that he will be subjected to duress, he may not rely on the threat as a defence to any criminal charge.
Types of Duress
There are two types of duress. Dures by threats and Duress of circumstance.. Both types of duress involve a threat emanating from a person.
Consider the following scenario which is an example of duress by threat:X says to Y, ‘Y, I will kill you unless you rob the bank’. Consequently, Y robs the bank and is charged
with robbery.
Consider the following scenario which is an example of duress by circumstance:
X says to Y, ‘Y, I will kill you unless you give me €10,000 by the weekend.’ Consequently Y robs a bank and is charged with robbery.
Note: Duress is a threat emanating from another person
N.o.C. – Not from another person but from a certain set of circumstances a person finds themself in.
• Necessity of Circumstances
If necessity of circumstances is successfully raised as a defence, the accused is entitled to and acquital.
Where necessity of circumstances is raised as a defence to a criminal charge, the accused is arguing as follows:A threat emanating from the particular circumstances in which I
found myself necessitated my conduct, which, but for the necessity, would have been a crime.
Case: R v. Dudley and StephensBrooke LJ identified the ‘three necessary requirements for the application of the doctrine of necessity’ as being:(i) The act is needed to avoid
inevitable and irrepereble evil(ii) No more should be done than is reasonably necessary for the purpose to be achieved
(iii) The evil inflicted must not be disproportionate to the evil avoided.
In Re A (Children) (Conjoined Twins: Surgical Seperation) demonstrates that necessity of circumstances can, albeit in exceptional circumstances, be a defence to a charge of
murder.

The general rule regarding the onus and standard of proof applies to the defence of provocation. There is no onus on the accused to prove it on the balance of probability or
otherwise. Rather, the prosecution bears the onus of disproving it beyond reasonable doubt.
Provocation is a defence to a charge of murder only, and operates to reduce the homicide to (voluntary) manslaughter.
Provocation – is conduct that causes a person to lose self-control.
In most cases the provocation relied upon will be a single incident, eg, an argument. However, cases can involve cumulative provocation. This is where the accused was
subjected to provocation over a period of time. In such cases the jury will be instructed to have regard to the while picture. The final provocative incident will not be looked at
in isolation - R v. Thornton (1992).
The Test for Provocation
In R v. Duffy (1949), Devlin J defined provocation as “some act, or series of acts, done by the dead man to the accused which would cause in an reasonable person, and
actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him… for the moment not master of his
mind.”
In The People (DPP) v. MacEoin (1978), Kenny J for the Court of Criminal Appeal said that n order to defeat the defence of provocation, the prosecution would have to
prove, beyond a reasonable doubt, either that:
(i) ‘the accused was not provoked to such an extent that, having regard to his temperament, character and circumstances, he lost control of himself at the time of the wrongful
act.
(ii) the force used by the accused was unreasonable and excessive having regad to the provocation.
Loss of Self-Control
The loss of self-control must be sudden, temporary, total and operating at the time at which the person provoked commits a crime.
The requirement of the loss of self-control being ‘sudden’ does not mean that such loss has to occur immediately after the provocation.
In determining whether or not the accused was so provoked as to have lost his self-control at the time of the killing, regard must be had to his temperament, character and
circumstances.
The People (DPP) v. Davis (2001) Hardiman J:
“There is a minimal degree of self-control which each member of society is entitled to expect from his fellow members”
The Force used by the Accused
In The people (DPP) v. Mac Eoin (1978), the Court of Criminal Appeal said “if the prosecution can prove beyond reasonable doubt that the force used was unreasonable and
excessive having regard to the provocation, the defence of provocation fails”
Since The people (DPP) v. Mac Eoin (1978), the Court of Criminal Appeal has been at pains to stress that this limb of the test is entirely subjective also.
Delayed Reaction
The significance of an “interval between the provocative conduct and the reaction of the defendant to it was explained by the Court of Criminal Appeal in R v. Ahluwalia
(1992).
The Court of Appeal accepted, ‘such an interval may wholly undermine the defence of provocation; that, however, depends entirely on the facts of individual cases and isn’t a
principle of law.
Self-Induced Provocation
An accused person may not rely on provocation if he was responsible for it. As the Court of Criminal Appeal explained n The People (DPP) v. Kelly (2000) ‘the reaction…
must be genuine in the sense that the accused did not delibritly set up the situation which he now invokes as provocation’.
Automatism – General Observations

I involuntarily engaged in conduct, which, but for the involuntariness, would have been a crime.
A person engages in involuntary conduct if (i) he does not know the nature and quality of his conduct, ie, if he does not know what he is or is not doing, or (ii) he has no
control over his conduct
Conduct can be involuntary for a variety of reasons.
f it is involuntary due to a defect of reason caused by a mental disorder, the defence of insane automatism (insanity) applies.
If it is involuntary for any other reason, the appropriate defiance is non-insane automatism.
Insane Automatism
The criminal law on the defense of insanity is governed by s 5(1), Criminal Law (Insanity) Act, 2006. This Act simply placed the rule in common law on a legislative footing.
The McNaghten Rules
According to the McNaghten Rules, a person is insane if ‘at the time of committing the (alleged) offence, (he is) laboring under such a defect of reason from disease of the
mind either (i) as not to know the nature and quality of his act, or (ii) if he did not know that his act was wrong. According to the McNaghten Rules, proving the defense of
insanity entails proving that:
(a) the accused was suffering from a disease of the mind at the time of the alleged offence
(b) such disease caused a defect of reason.
Disease of the mind
In R v. Kemp [1957], the accused suffered from arteriosclerosis. This condition causes arterial walls to thicken and harden. This thickening and hardening can result in blood
congestion in the brain. This congestion can cause a state of automatism. When he attacked his wife with a hammer, Kemp was in a state of automatism.
In Bratty v. AG for Northern Ireland [1963], the accused’s epilepsy was regard as a disease of the mind. Lord Denning observed, ‘any mental disorder that manifests itself in
violence and is prone to recur is a disease of the mind’.
In R v. Hennessy [1989], the accused’s hyperglycemia (high blood sugar level) was regarded as a disease of the mind. Having failed to take his insulin, Hennessy entered a
hyperglycemic state, and, whilst in that state drove someone else’s car while disqualified.
From these authorities, the following definitions of ‘disease of the mind’ may be distilled:
1) Any condition that impairs the mental facilities of reason, memory and understanding 2) Any mental disorder that manifests itself in violence and is prone to recur.3)Any
disease that causes the mind to malfunction.
In R v. Burgess [1990], the accused’s somnambulism (sleepwalking) was regarded as a disease of the mind. There was evidence to the effect that somnambulism is a
pathological condition, susceptible to medical treatment.
Defect of Reason
It is not sufficient merely to prove that the accused was suffering from a disease of the mind at the time of the alleged offence. It must be further proved that the disease
caused a defect of reason.
(i) The accused did not know the nature and quality of his conduct.
X lights a bin on fire. The fire spreads, causing substantial damage to property. However, the evidence proves that, due to a disease of the mind, X believed that he was
lighting a fire in his hearth. X is charged with Arson.
Here, X would be entitled to an aquittal.
Y, sets a bin on fire. The fire spreads, causing substantial damage to property. Y knew that he was setting a bin on fire. However, the evidence proves that, due to a disease of
the mind, Y failed to appreciate the risk of the fire spreading. Y is charged with arson.

The court of Appeal was confronted with this scenario in R v. Dickie [1984]. The fact that he did not appreciate the risk inherent in his conduct was irrelevant. R v. Dickie
stands as the authority for the proposition that a person can know the nature and quality of his conduct even if he does not appreciate its consequences.
(ii) The Accused did know the nature and quality of his conduct but did know that it was wrong.
In The People (AG) v. Hayes, Henchy J equated ‘wrong’ with both ‘immorality’ and ‘illegality’. Accordingly, if a person knows that his conduct is either immoral or illegal,
he knows that it is ‘wrong’, and the defence of insanity would not be available to him.
R v. Windle [1952] – “I suppose I’ll be hanged for this” – The accused knew that his conduct was contrary to law.
Doyle v. Wicklow County Council [1974]
The third type of defect of reason arises where a person does know hat he is doing and that it is wrong, but is unable to refrain from acting.
The impulse must be irresistible, not merely unresisted.
The 2006 Act
‘Mental disorder’ is dfined in s 1 of the 2006 Act as including ‘mental illness, mental disability, demintia or any disease of the mind, but does not include intoxication.’
Previously, where the defence of insanity was successfully raised, the accused would have been found ‘guilty but insane.’
he new special verdict is ‘not guilty by reason of insanity’.
Diminished Responsibility
Diminished responsibility is a defence to a charge of murder only, and operates to reduce the homicide to (voluntary) manslaughter. This is so, even if the accused intended to
kill or cause serious injury to some person.
If there is evidence of diminished responsibility in a trial other than one for murder, it goes to mitigation of punishment only.
Non Insane Automatism
If the mind is caused to malfunction by an external factor, the appropriate defense to raise is non-insane automatism.
If non-insane automatism is successfully raised as a defense, the accused is entitled to an acquittal. He will not be transferred to the Central Mental Hospital in Dundrum.
Consider the following scenario:
As X is driving, his left hand is stung by a bee. As a result, he jerks the steering wheel to his right and knocks down and kills a pedestrian. X is charged with dangerous
driving causing death.
Accordingly, the appropriate defence for X to raise would be Non-Insane Automatism.
The first named accused in R v. Quick & Anor [1973] was a diabetic. Having taken his insulin, he failed to eat properly and consumed alcohol. This caused hypoglycemia
(low blood-sugar levels). Whilst in a hypoglycemic state, Quick attacked another person.
R v. Quick & Anor [1973] is to be contrasted with R v. Hennessy [1989]
In R v. Hennessy Lord Lane LCJ accepted that ‘stress, anxiety and depression can … be the result of the operation of external factors.’ However, ‘they are not … external
factors of the kind capable in law of causing or contributing to a state of [non-insane] automatism.
Crimes of Specific Intent
A crime is one of specific intent if the prosecution must prove an intention on the part of the accused. Murder is a crime of specific intent, as it requires proof of an intention
to kill or cause serious injury to some person. Similarly, theft is a crime of specific intent, as it requires proof of an intention to deprive an owner of his property.
The Dutch Courage scenario
Consider the following scenario:

X forms and intention to kill his wife. He lacks the courage to go through with the killing. He consumes a bottle of whiskey in order to give himself ‘Dutch Courage’ to go
through with it. Whilst intoxicated, X kills his wife. His intoxication was such that, at the time of the killing, X did not intend to kill or seriously injure anyone.
The House of Lords was confronted with this scenario in AG for Northern Ireland v. Gallagher [1961]. Upholding his conviction for murder, Lord Denning said:
The wickedness of his mind before he got drunk was enough to condemn him, coupled with the act which he intended to do and did do.
Crimes of Basic Intent
A crime is one of basic intent if the Prosecution does not have to prove an intention on the part of the accused.
This offence does not require proof of an intention on the part of the accused. So, a person could be guilty of a crime of basic intent if he ‘merely’ recklessly damaged
property and thereby recklessly endangered life.
The authorities demonstrate that self-induced intoxication is not a defence to a crime of basic intent.
In R v. Caldwell [1982], Lord Diplock, citing DPP v. Majewski [1976] as authority for the proposition, remarked ‘self-induced intoxication is no defence to a crime in which
recklessness is enough to constitute the necessary mens rea’.
Innocent Intoxication
There is no superior court judgment on the status of innocent intoxication as a defense to a criminal charge. However, in its report on intoxication the LRC recommended
‘innocent intoxication should always afford a defense on the lines indicated in the judgment in R v. Kingston.
Effect of successfully raising intoxication as a defense
If self-induced intoxication is successfully raised as a defense to a charge of murder, it merely operates to reduce the homicide to manslaughter.
If self-inducted intoxication is successfully raised as a defense to a crime of specific intent (other than murder), it entitles the accused to an acquittal unless the accused got
himself intoxicated for the purpose of giving himself Dutch Courage to commit the crime.
If innocent intoxication is successfully raised as a defense to a crime of specific or basic intent, it entitles the accused to an acquittal.

Chapter
 8
 -­‐
 Offences
 against
 the
 public
 order
 

 
 
Criminal
 justice
 (public
 order)
 act,
 1994
 

 
 
Intoxication
 in
 a
 public
 place:
 
Any
 drug
 including
 alcohol
 s4(4)
 
offence
 to
 be
 intoxicated
 in
 public
 to
 such
 an
 extent
 that
 it
 would
 give
 rise
 to
 reasonable
 apprehension
 that
 he
 might
 endanger
 himself
 
or
 someone
 in
 vicinity
 s4(1)
 
Offensive
 conduct
 in
 a
 public
 place
 
having
 regard
 to
 all
 the
 circumstances,
 conduct
 that
 is
 likely
 to
 cause
 serious
 offence
 or
 serious
 
annoyance
 to
 any
 person
 who
 is
 ,
 or
 is
 reasonably
 expected
 to
 be,
 aware
 of
 such
 behaviour
 

 
 
s5(1)
 makes
 it
 an
 offence
 for
 a
 person
 to
 engage
 in
 offensive
 conduct
 between
 12
 midnight
 and
 7
 am
 or
 at
 any
 other
 time
 having
 being
 
asked
 to
 stop
 by
 a
 
 guard
 

 
 
Threatening,
 abusive
 or
 insulting
 behaviour
 in
 a
 public
 place
 

 
 
s6(1)
 says
 it
 is
 an
 offence
 to
 do
 the
 above
 with
 an
 intent
 to
 breach
 the
 peace
 or
 being
 reckless
 about
 breaching
 the
 peace
 

 
 
the
 definition
 of
 threatening
 ,
 abusive
 ,
 insulting
 behaviour
 not
 defined
 but
 must
 amount
 to
 more
 than
 'offensive
 conduct'
 

 
 
Intention
 to
 breach
 peace
 must
 be
 proved
 

 
 
That
 the
 peace
 was
 breached
 does
 not
 have
 to
 be
 proved
 

 
 
Obscene
 displays
 in
 a
 public
 place
 

 
 
s7(1)
 offence
 to
 distribute
 or
 display
 things
 in
 public
 place
 that
 are
 threatening,
 abusive,
 insulting
 or
 obscene
 with
 intention
 to
 breach
 
peace
 or
 being
 reckless
 as
 regards
 the
 breach
 of
 peace
 


 
 
-­‐
 used
 against
 anti
 abortion
 campaigners
 using
 photos
 of
 aborted
 foetuses
 

 
 
R
 v
 Hicklin
 =
 test
 for
 obscenity
 =
 whether
 the
 tendency
 of
 the
 matter
 charged
 as
 obscenity
 is
 to
 deprave
 and
 corrupt
 those
 whose
 minds
 
are
 open
 to
 such
 immoral
 influences
 and
 into
 whose
 hands
 a
 publication
 may
 fall
 

 
 
Must
 be
 proved
 they
 intended
 to
 breach
 peace
 (or
 was
 reckless)
 but
 does
 not
 have
 to
 be
 proved
 that
 an
 actual
 breach
 of
 the
 peace
 
occurred
 

 
 
Affray
 

 
 
s16(1)
 
-­‐
 must
 be
 at
 least
 2
 people
 using
 or
 threatening
 to
 use
 violence
 against
 each
 other(Reid
 v
 DPP,Kirwan
 v
 DPP)
 
-­‐a
 threat
 cannot
 be
 made
 by
 words
 alone
 
-­‐at
 least
 one
 of
 these
 people
 must
 be
 using
 or
 threatening
 to
 use
 unlawful
 violence
 
-­‐the
 conduct
 of
 those
 persons
 taken
 together
 must
 be
 such
 as
 would
 cause
 a
 reasonable
 person
 present
 to
 fear
 for
 his
 or
 someone
 else's
 
safety
 
-­‐
 the
 person
 cannot
 be
 convicted
 of
 affray
 unless
 the
 person
 intends
 to
 use
 or
 threaten
 to
 use
 violence
 or
 is
 aware
 that
 his
 conduct
 may
 
be
 violent
 or
 threaten
 violence
 

 
 

 

 
Violent
 disorder
 

 
 
s
 15(1)
 
-­‐must
 be
 3
 or
 more
 people
 threatening
 to
 use
 unlawful
 violence
 
-­‐
 it
 is
 immaterial
 whether
 or
 not
 the
 people
 use
 or
 threaten
 to
 use
 unlawful
 violence
 at
 the
 same
 time
 
-­‐the
 conduct
 must
 be
 such
 that
 a
 reasonable
 person
 would
 fear
 for
 his
 or
 anothers
 safety
 
-­‐each
 person
 who
 threatens
 or
 uses
 violence
 can
 be
 guilty
 

-­‐a
 person
 cant
 be
 convicted
 unless
 they
 intended
 to
 use
 or
 threaten
 violence
 or
 is
 aware
 his
 conduct
 may
 be
 violent
 or
 threaten
 
 violence
 

 
 
Riot
 

 
 
14(1)
 
-­‐at
 least
 12
 people
 using
 or
 threatening
 unlawful
 violence
 for
 a
 common
 purpose
 
-­‐immaterial
 whether
 or
 not
 the
 12
 or
 more
 people
 use
 or
 threaten
 violence
 simultaneously
 at
 any
 place
 
-­‐the
 conduct
 of
 the
 people
 taken
 together
 must
 be
 such
 as
 would
 cause
 a
 reasonable
 person
 at
 that
 place
 to
 fear
 for
 his
 or
 someone
 else's
 
person
 (
 this
 reasonable
 person
 does
 not
 have
 to
 be
 present
 or
 be
 likely
 to
 be
 present)
 
-­‐each
 person
 involved
 can
 be
 guilty
 

 

 

 

 

 

 

 

 

 

 

 
Criminal
 Law
 –
 Chapter
 9
 –
 Inchoate
 Offences
 

 
Incitement
 –
 
 A
 person
 (the
 ‘incitor’)
 may
 be
 guilty
 of
 incitement
 if
 he
 tries
 to
 coerce,
 encourage,
 or
 persuade
 another
 person
 to
 commit
 
a
 crime.
 
Race
 Relations
 Board
 v.
 Applin
 1973-­‐
 
 

 

 

The
 actus
 reus
 of
 incitement
 is
 the
 conduct
 that
 constitutes
 the
 attempt
 to
 coerce,
 encourage,
 or
 persuade
 another
 person
 to
 commit
 a
 
crime.
 R
 v.
 Smith
 and
 Anor.
 
 

 
It
 does
 not
 have
 to
 be
 proved
 that
 the
 person
 who
 was
 incited
 (the
 ‘incitee’)
 committed
 the
 crime
 incited.
 If
 he
 did
 commit
 it,
 he
 would
 
be
 guilty
 of
 that
 offence
 as
 perpetrator.
 The
 incitor
 would
 also
 be
 guilty
 of
 it,
 but
 as
 an
 accomplice.
 

 
It
 does
 not
 even
 have
 to
 be
 proved
 that
 the
 incitee
 agreed
 to
 commit
 the
 crime
 incited.
 If
 he
 did
 agree,
 both
 he
 and
 the
 incitor
 would
 be
 
guilty
 of
 conspiracy.
 

 
Consider
 the
 following
 scenario:
 

 
One
 Monday,
 X
 says
 to
 Y,
 “Y,
 I
 will
 give
 you
 €10,000
 if
 you
 rape
 Z.”
 On
 Tuesday,
 Y
 telephones
 X
 saying,
 “X,
 I’ve
 thought
 about
 your
 
proposal.
 Ok,
 I’ll
 do
 it.”
 On
 Wednesday,
 Y
 rapes
 Z.
 

 
Here,
 X
 committed
 incitement
 (to
 commit
 rape)
 on
 Monday.
 On
 Tuesday,
 both
 X
 and
 Y
 became
 guilty
 of
 conspiracy.
 On
 Wednesday,
 both
 
X
 and
 Y
 became
 guilty
 of
 rape.
 Y
 is
 guilty
 of
 rape
 as
 a
 perpetrator.
 X
 is
 guilty
 of
 rape
 as
 an
 accomplice.
 

 
Expression
 of
 Desire
 

 
In
 The
 People
 (AG)
 v
 Capaldi
 (1949),
 the
 accused
 had
 been
 convicted
 of
 incitement
 to
 commit
 an
 offence
 contrary
 to
 s
 58,
 Offences
 
Against
 the
 Person
 Act
 1861.
 
-­‐
 Pregnant
 girlfriend
 case
 

 
Appealling
 his
 conviction
 the
 accused
 argued
 that
 he
 had
 merely
 expressed
 a
 desire
 that
 his
 girlfriend
 have
 an
 abortion
 and
 that
 a
 mere
 
expression
 of
 desire
 does
 not
 constitute
 incitement.
 The
 Court
 of
 Criminal
 Appeal
 accepted,
 obiter,
 that
 a
 mere
 expression
 of
 desire
 does
 
not
 constitute
 incitement.
 

 
A
 person
 would
 not
 be
 guilty
 of
 incitement
 if
 it
 was
 already
 occurring
 to
 the
 incitee
 to
 commit
 the
 crime
 incited.
 

 

Communication
 

 
Whilst
 it
 does
 not
 have
 to
 be
 proved
 that
 the
 incitor
 succeeded
 in
 coercing,
 encouraging
 or
 persuading
 the
 incitee
 to
 commit
 the
 crime
 
incited
 or
 even
 that
 he
 succeeded
 in
 obtaining
 the
 incitee’s
 assignment
 to
 commit
 the
 crime
 incited
 or
 even
 that
 he
 succeeded
 in
 
obtaining
 the
 incitee’s
 agreement
 to
 commit
 the
 crime
 incited,
 it
 does
 have
 to
 be
 proved
 that
 the
 incitor
 succeeded
 in
 communicated
 
with
 the
 incitee.
 

 
Consider
 the
 following
 scenario:
 

 
X
 sends
 a
 letter
 to
 Y,
 in
 which
 he
 writes,
 ‘Y,
 I
 will
 give
 you
 €10,000
 if
 you
 rape
 Z.”
 The
 Gardai
 intercept
 the
 letter
 before
 it
 reaches
 
Y.
 

 
Here,
 X
 is
 not
 guilty
 of
 incitment
 to
 commit
 rape.
 That
 is
 not
 to
 say
 that
 X
 would
 not
 be
 guilty
 of
 any
 offence.
 He
 would
 be
 guilty
 of
 
attempted
 incitement
 to
 commit
 rape.
 

 
Soliciting
 to
 Commit
 Murder
 

 
Section
 4
 of
 the
 Offences
 Against
 the
 Person
 Act
 1861
 makes
 it
 an
 offence
 to
 ‘solicit,
 encourage,
 persuade
 or
 endeavour
 to
 persuade
 or
 
propose
 to
 any
 person
 to
 murder
 any
 other
 person.
 
Incitement
 to
 Hatred
 

 
Incitement
 to
 hatred
 is
 governed
 by
 the
 Prohibition
 of
 Incitment
 to
 Hatred
 Act
 1989.
 

 
According
 to
 s1(1)
 of
 the
 1989
 Act,
 ‘hatred’
 ‘means
 hatred
 against
 a
 group
 of
 persons
 in
 the
 state
 or
 elsewhere
 on
 account
 of
 their
 race,
 
colour,
 nationality,
 religion,
 ethnic
 or
 national
 origins,
 membership
 of
 the
 travelling
 community
 or
 sexual
 orientation.’
 

 
Accordingly,
 it
 is
 not
 an
 offence
 to
 incite
 hatred
 against
 one
 person.
 

 
Conspiracy
 


 
According
 to
 Barry
 J
 in
 R
 v.
 Parnell
 (1881),
 a
 conspiracy
 is
 an
 agreement
 between
 at
 least
 two
 people
 ‘to
 commit
 a
 wrongful
 act
 with
 a
 
view
 to
 injure
 another…
 even
 though
 the
 act,
 if
 done
 by
 one,
 would
 amount
 to
 no
 more
 than
 a
 civil
 wrong’.
 

 
The
 ‘wrongful
 act’
 will
 usually
 be
 a
 crime,
 but,
 as
 Barry
 J’s
 remarks
 make
 clear,
 it
 does
 not
 have
 to
 be.
 

 
Consider
 the
 following
 scenario:
 

 

 
X
 publishes
 a
 leaflet
 that
 contains
 a
 false
 allegation
 that
 Z
 is
 a
 paedophile.
 

 
Here,
 X
 has
 committed
 the
 civil
 wrong
 of
 defamation.
 

 
Now,
 consider
 the
 following
 scenario:
 

 
X
 and
 Y
 publish
 a
 leaflet
 that
 contains
 a
 false
 allegation
 that
 Z
 is
 a
 paedophile.
 

 
Here,
 not
 only
 have
 X
 and
 Y
 committed
 the
 civil
 wrong
 of
 defamation,
 they
 have
 also
 committed
 a
 crime,
 viz,
 conspiracy
 to
 defame
 Z.
 

 
Spouses
 

 
At
 common
 law,
 a
 husband
 and
 wife
 cannot
 conspire
 with
 each
 other
 
-­‐ R
 v.
 Robinson
 (1746)
 
They
 are
 regarded
 as
 a
 single
 entity,
 and
 one
 cannot
 conspire
 with
 oneself.
 

 
Where
 one
 of
 the
 Conspirators
 Cannot
 be
 Guilty
 of
 the
 Crime
 

 
Consider
 the
 following
 scenario:
 

 
X
 is
 a
 woman
 who
 is
 not
 pregnant.
 Believing
 that
 she
 is
 pregnant
 she
 agrees
 with
 Y
 to
 procure
 an
 abortion.
 


 
Is
 X
 guilty
 of
 conspiracy
 to
 procure
 an
 abortion?
 

 
In
 R
 v.
 Whitechurch
 (1890),
 the
 court
 answered
 this
 question
 in
 the
 affirmative.
 This
 case
 suggests
 that
 a
 person
 can
 be
 guilty
 of
 
conspiring
 to
 commit
 an
 offence
 even
 though
 he
 is
 not
 capable
 in
 law
 of
 committing
 that
 offence.
 

 
Impossibility
 

 
Consider
 the
 following
 scenario:
 

 
X
 and
 Y
 agree
 to
 kill
 Z.
 Unbeknownst
 to
 X
 and
 Y,
 Z
 is
 already
 dead.
 

 
Here,
 it
 would
 in
 fact
 be
 impossible
 for
 X
 and
 Y
 to
 kill
 Z.
 The
 question
 arises:
 would
 such
 factual
 impossibility
 provide
 X
 and
 Y
 with
 a
 
charge
 of
 conspiracy
 to
 commit
 murder?
 

 
In
 DPP
 v.
 Nock
 &
 Anor
 (1978),
 the
 accused
 admitted
 that
 they
 had
 intended
 to
 extract
 cocaine
 from
 a
 particular
 batch
 of
 white
 powder.
 
Unbeknownst
 to
 them,
 it
 was,
 in
 fact,
 impossible
 to
 extract
 cocaine
 from
 the
 powder.
 The
 House
 of
 Lords
 held
 that
 such
 impossibility
 
provided
 the
 accused
 with
 a
 defence
 to
 a
 charge
 of
 conspiracy.
 Emphasis
 was
 placed
 on
 the
 specificity
 of
 the
 accuseds’
 agreement.
 Had
 
they,
 for
 example,
 agreed
 to
 enter
 into
 a
 general
 cocaine-­‐producing
 business
 together,
 a
 conviction
 for
 conspiracy
 could
 have
 been
 
sustained.
 

 
Conspiracy
 to
 Corrupt
 Public
 Morals
 

 
-­‐
 AG
 (SPUC)
 v.
 Open
 Door
 Counselling
 (1988).
 

 
-­‐ Knuller
 v.
 DPP
 (1973)
 –
 Lord
 Simon
 said
 ‘the
 words
 “corrupt
 public
 morals”
 suggest
 conduct
 which
 a
 jury
 might
 find
 to
 be
 
destructive
 of
 the
 very
 fabric
 of
 society”
 

 

 

Attempt
 

 
Actus
 Reus
 –
 The
 actus
 reus
 of
 an
 attempt
 is
 ‘proximate
 conduct’.
 This
 means
 that
 it
 must
 be
 proved
 that
 the
 accused
 had
 gone
 beyond
 
merely
 preparing
 for
 the
 substantive
 offence
 and
 that
 he
 had
 taken
 steps
 towards
 its
 commission.
 

 
It
 is
 not
 an
 offence
 for
 X
 merely
 to
 intend
 to
 commit
 a
 crime.
 As
 Haugh
 J
 explained,
 for
 the
 Court
 of
 Criminal
 Appeal,
 in
 The
 People
 (AG)
 v.
 
Thornton
 (1952),
 ‘a
 mere
 desire
 to
 commit
 a
 crime,
 or
 desire
 followed
 by
 an
 intention
 to
 do
 so,
 is
 not
 sufficient
 to
 prove
 an
 attempt’.
 

 
Abandonment
 

 
Consider
 the
 following
 scenario:
 

 
X
 intends
 to
 kill
 Y.
 Late
 one
 night,
 he
 breaks
 into
 Y’s
 house,
 creeps
 upstairs,
 and
 goes
 into
 Y’s
 bedroom.
 Y
 is
 lying
 peacefully
 in
 his
 
bed.
 X
 stands
 beside
 Y’s
 bed
 with
 an
 axe
 raised
 above
 his
 head.
 Suddenly,
 X
 has
 a
 change
 of
 heart
 and
 decides
 not
 to
 kill
 Y.
 

 
Here,
 X
 is
 guilty
 of
 attempted
 murder.
 His
 conduct
 was
 sufficiently
 proximate.
 At
 the
 time
 of
 such
 conduct
 he
 intended
 to
 kill
 Y.
 
Accordingly,
 all
 the
 ingredients
 of
 attempted
 murder
 are
 present.
 

 
Impossibility
 

 
Consider
 the
 following
 scenario:
 

 
X
 intends
 to
 kill
 Y.
 He
 breaks
 into
 Y’s
 house,
 creeps
 upstairs,
 and
 goes
 into
 Y’s
 bedroom.
 Y
 is
 lying
 peacefully
 in
 his
 bed.
 X
 
proceeds
 to
 decapitate
 Y.
 However,
 the
 post-­‐mortem
 establishes
 that
 Y
 was
 already
 dead.
 

 
Here,
 it
 was
 in
 fact,
 impossible
 for
 X
 to
 kill
 Y.
 Would
 such
 impossibility
 provide
 him
 with
 a
 defence
 to
 a
 charge
 of
 attempted
 murder?
 In
 
The
 People
 (AG)
 v.
 Sullivan
 (1964),
 Walsh
 J
 said,
 ‘the
 ultimate
 impossibility
 of
 achieving
 or
 carrying
 out
 the
 crime
 attempted
 is
 not
 a
 
defence
 to
 a
 charge
 of
 attempt.
 

 

Punishment
 –
 S3
 Criminal
 Justice
 Act
 1990
 is
 20
 years
 imprisonment