Notes on Criminal Law

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Notes for the Criminal Law Syllabus for the University of London International Programmes

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Actus reus

The actus reus in criminal law consists of all elements of a crime other
than the state of mind of the defendant. In particular, actus reus may
consist of: conduct, result, a state of affairsor an omission.

Conduct - the conduct itself might be criminal. Eg. the conduct of lying
under oath represents the actus reus of perjury. It does not matter that
whether the lie is believed or if had any effect on the outcome of the case,
the actus reus of the crime is complete upon the conduct.
Examples of conduct crimes:

 Perjury
 Theft
 Making off without payment
 Rape
 Possession of drugs or a firearm

Result - The actus reus may relate to the result of the act or omission of
the defendant. The conduct itself may not be criminal, but the result of the

conduct may be. Eg it is not a crime to throw a stone, but if it hits a person
or smashes a window it could amount to a crime.Causation must be
established in all result crimes.
Examples of result crimes:

 Assault
 Battery
 ABH
 Wounding and GBH
 Murder & Manslaughter
 Criminal damage

State of affairs - For state of affairs crimes the actus reus consists
of 'being' rather than 'doing'. Eg 'being' drunk in charge of a vehicle (Duck v
Peacock [1949] 1 All ER 318 Case summary) or 'being' an illegal alien (R
v Larsonneur (1933) 24 Cr App R 74 case summary).

Omission - Occassionally an omission can amount to the actus
reus of a crime. The general rule regarding omissions is that there
is no liability for a failure to act. Eg if you see a child drowning in
shallow water and you don't do anything to save that child you will
not incur criminal liability for your inaction no matter how easy it
may have been for you to save the child's life. This general rule
however, is subject to exceptions:
1. Statutory duty:

In some situations there is a statutory duty to act. Eg to provide
details of insurance after a traffic accident or to notify DVLA when
you sell a vehicle.
2. Contractual duty:
If a person owes a contractual duty to act, then a failure to meet
this contractual duty may result in criminal liability:
R v Pittwood [1902] TLR 37 Case summary
3. Duty imposed by law
The actus reus can be committed by an omission where there exists a duty
imposed by law. There are three situations in which a duty may be imposed
by law. These are where the defendant creates a dangerous situation, where
there has been a voluntary assumption of responsibility and misconduct in a
public office. Additionally an omission may be classified as part of a
continuing act.

a). Creating a dangerous situation and failing to put it right:
R v Miller [1983] 2 AC 161 Case summary

b). Assumption of responsibility:
R v Stone & Dobinson [1977] 1 QB 354 Case summary

c). Misconduct in a public office:
R v Dytham [1979] Q.B. 722 Case summary

An omission can also be classed as part of a continuing act:
Fagan v MPC [1969] 1Q.B. 439 Case summary

Mens rea - Intention

Mens rea in criminal law is concerned with the state of mind of the
defendant. Most true crimes will require proof of mens rea.
Where mens rea is not required the offence is one ofstrict
liability. There are three main levels of mens
rea: intention, recklessness andnegligence.

Intention
Intention requires the highest degree of fault of all the levels
of mens rea. A person who intends to commit a crime, can
generally be said to be more culpable than one who acts recklessly.
Intention differs from motive or desire (Per Lord Bridge R v
Moloney [1985] AC 905. Thus, a person who kills a loved one dying from a
terminal illness, in order to relieve pain and suffering, may well act out of
good motives. Nevertheless, this does not prevent them having the
necessary intention to kill see R v Inglis [2011] 1 WLR 1110 Case
summary .

Intention can be divided into direct intent and oblique intent.

Direct intent:
The majority of cases will be quite straight forward and involve direct intent.
Direct intent can be said to exist where the defendant embarks on a
course of conduct to bring about a result which in fact occurs. Eg D intends
to kill his wife. To achieve that result he gets a knife from the kitchen,
sharpens it and then stabs her, killing her. The conduct achieves the desired
result.

Oblique intent:
Oblique intent is more complex. Oblique intent can be said to exist where
the defendant embarks on a course of conduct to bring about a desired
result, knowing that the consequence of his actions will also bring about
another result. Eg D intends to kill his wife. He knows she is going to be on a
particular aeroplane and places a bomb on that aeroplane. He knows that his
actions will result in the death of the other passengers and crew of the
aeroplane even though that may not be part of his desire in carrying out the
action. In this situation D is no less culpable in killing the passengers and
crew than in killing his wife as he knows that the deaths will happen as a
result of his actions.

The courts have struggled to find an appropriate test to apply in cases
of oblique intent. In particular the questions which have vexed the courts
are:
1.

Should the test be subjective or objective?

2.

What degree of probability is required before it can be said that the
defendant intended the result?

3.

Whether the degree of probability should be equal to intention or
whether it is evidence of intention from which the jury may infer
intention

Subjective or objective test
A subjective test is concerned with the defendant's perspective. In relation
to oblique intentit would be concerned only with whether the defendant did
foresee the degree of probability of the result occurring from his actions.
An objective test looks at the perspective of a reasonable person. Ie Would
a reasonable person have foreseen the degree of probability of the result
occurring from the defendant's actions.

It is arguable, that since intention requires the highest degree of fault, it
should be solely concerned with the defendant's perception. In addition,
intention seems to be a concept which naturally requires a subjective
inquiry. It seems somehow wrong to decide what the defendant's intention
was by reference to what a reasonable person would have contemplated.
However, originally an objective test was applied to decide oblique intent:
DPP v Smith [1961] AC 290

Case summary

This position was reversed by statute by
s 8 Criminal Justice Act 1967

S. 8 Proof of criminal intent

A court or jury, in determining whether a person has committed an offence,—
(a)shall not be bound in law to infer that he intended or foresaw a result of his actions by reason only
of its being a natural and probable consequence of those actions; but
(b)shall decide whether he did intend or foresee that result by reference to all the evidence, drawing
such inferences from the evidence as appear proper in the circumstances.

The effect of s.8 was considered in:
R v Hyam [1975] AC 55

Case summary

The House of Lords accepted a subjective test was applicable.
However, the majority decision of the House of Lords was out of line
with s.8 in that it was accepted that foresight of consequences being
highly probable was sufficient to establish intent.(Lord Hailsham
dissenting) a point which was taken and rectified in R
v Moloney [1985] AC 905
Lord Bridge's test on oblique intent:
"First, was death or really serious injury in a murder case (or whatever relevant
consequence must be proved to have been intended in any other case) a natural
consequence of the defendant's voluntary act? Secondly, did the defendant foresee that
consequence as being a natural consequence of his act? The jury should then be told that if
they answer yes to both questions it is a proper inference for them to draw that he intended
that consequence."

However, R v Moloney left a problem with regards to the degree of
probability required Case summary. This was considered in:

R v Hancock & Shankland [1985] 3 WLR 1014
summary

Case

The degree of probability was still causing problems and the cases of R
v Maloney and R vHancock and Shankland were reviewed by the Court of
Appeal in R v Nedrick which reformulated the test.

R v Nedrick [1986] 1 WLR 1025

Case summary

Lord Lane CJ:
"the jury should be directed that they are not entitled to infer the necessary
intention, unless they feel sure that death or serious bodily harm was a virtual
certainty (barring some unforeseen intervention) as a result of the
defendant's actions and that the defendant appreciated that such was the
case."

The authority of this test was questioned in Woollin. The House of Lords
largely approved of the test with some minor modifications setting the
current test of oblique intent:

R v Woollin [1999] AC 82

Case summary

The current test of oblique intent:

"Where the charge is murder and in the rare cases where the simple direction is not enough,
the jury should be directed that they are not entitled to find the necessary intention, unless
they feel sure that death or serious bodily harm was a virtual certainty (barring some
unforeseen intervention) as a result of the defendant's actions and that the defendant
appreciated that such was the case."
The decision is one for the jury to be reached upon a consideration of all the evidence.

Mens rea - Reckless

In general terms, being reckless refers to the taking of an unjustified
risk. Recklessness in criminal law has given rise to more difficulty. In
particular the question as to whether asubjective test should apply
to recklessness or whether an objective test should apply.

In the context of criminal damage, originally the leading case in this area
of R v Cunninghamheld that a subjective test applied to
determine recklessness:

R v Cunningham [1957] 2 QB 396 (Case summary)
This gave rise to Cunningham recklessness which asks: did the defendant
foresee the harm that in fact occurred, might occur from his
actions, but nevertheless continue regardless of the risk.

Cunningham recklessness was followed in R v Briggs [1976] 63 CAE

215. However, the subsequent case of R v Parker (1976) 63 CAS
211 modified the test to include closing one's eyes to an obvious
risk. These cases were reviewed by the Court of Appeal in R
vStephenson where it was held a subjective test applied:

R v Stephenson [1979] QB 695

Case summary

However, this was followed by:

MPC v Caldwell [1982] AC 341

Case summary

This introduced Caldwell recklessness:
A person is reckless as to whether property is destroyed or damaged where:
(1) he does an act which in fact creates an obvious risk that property will be destroyed or damaged
and
(2) when he does the act he either has not given any thought to the possibility of there being any
such risk or has recognised that there was some risk involved and has nonetheless gone on to do it.

Caldwell recklessness radically altered the law and received
widespread criticism. The tension between subjective and
objective tests of recklessness continued with each test being
problematic. The difficulty with a subjective test is that it is based
entirely on the defendant's state of mind and it is for the
prosecution to prove that the defendant did foresee a risk of harm.
It is difficult to prove a state of mind. It allows too many defendants
to escape liability by simply claiming they did not foresee a risk.
However, Caldwell recklessness is capable of causing injustice as
it criminalises those who genuinely did not foresee a risk of harm
including those who are incapable of foreseeing a risk as the
following case illustrates:

Elliot v C [1983] 1 WLR 939

Case summary

Subjective recklessness was held to apply to non-fatal offences against the
person:
R v Spratt [1990] 1 WLR 1073

Case summary

DPP v Morgan [1976] AC 182

Case summary

R v Parmenter [1991] 94 Cr App R 193

Case summary

In addition to causing injustice other criticisms of Caldwell reckless:


Whilst criminal damage was subject to Caldwell
recklessness, Cunningham recklessness applied to offences
against the person and thus property was given a greater level of
protection.



The precise limits as to which offences required which type of
recklessness were not fully understood or defined



Having two definitions for the same word was confusing



The test was difficult for juries to understand



Having an objective test blurs the distinction between negligence and
recklessness



There was uncertainty as to whether the Caldwell lacuna existed.

Caldwell recklessness was eventually overruled by the House of Lords:

R v G & R [2003] 3 WLR

Case summary

The House of Lords held a subjective standard now applies to
criminal damage:
"A person acts recklessly within the meaning of section 1 of the Criminal Damage
Act 1971 with respect to (i) a circumstance when he is aware of a risk that it exists or will exist;
(ii) a result when he is aware of a risk that it will occur;
and it is, in the circumstances known to him, unreasonable to take the risk."

Negligence in criminal liability

Negligence plays a minor role in criminal liability. It used to form the basis
of some driving offences but this has largely been superseded by
recklessness. Negligence adheres to anobjective standard. This is strictly
applied as can be seen in McCrone v. Riding [1938] 1 All ER 137 where

it was held that a learner driver must meet the standard of a
qualified driver.
The main role for negligence in criminal law is with regards to
gross negligence manslaughter. This requires the prosecution to
establish that the defendant owed a duty of care, was in breach of
duty which resulted in death. The current test for establishing
liability for this offence was set out in:

R v Adomako [1994] 3 WLR 288 Case summary
Adomako test:
"whether the conduct of the defendant was so bad in all the
circumstances as to amount in their judgment to a criminal act
or omission."

(The coincidence of actus reus and mens rea)

It is a principle of English law that the actus reus and mens
rea must coincide. That is they must happen at the same time.
This is sometimes referred to as the contemporaneity rule or
the coincidence of actus reus and mens rea. However, the
courts often apply a flexible approach in holding that the actus
reus is a continuing act. See:
DPP v Ray [1974] AC 370

Case summary

Thabo-Meli v R [1954] 1 WLR 228

Case summary

criminal act or omission."
Transferred Malice

The doctrine of transferred malice applies where the mens
rea of one offence can be transferred to another. For
example, suppose A shoots at B intending to kill B, but misses and
hits and kills C. Transferred malice can operate so that the mens
rea of A (intention to kill B) can be transferred to the killing of C.
Consequently A is liable for the murder of C, despite the fact that
he did not actually intend to kill C.
An early illustration of transferred malice:
R v Saunders (1573) 2 Plowd 473

Case summary

A further example of transferred malice:

R v Latimer (1886) 17 QBD 359

Case summary

Transferred malice does not operate where the crime which
occurred was different from that intended:

R v Pembliton (1874) LR 2CCR 119
A-G Ref NO. 3 OF 1994

Case summary

Case summary
Strict Liability

Strict liability crimes are crimes which require no proof of mens rea in
relation to one or more aspects of the actus reus. Strict liability offences
are primarily regulatory offences aimed at businesses in relation to health
and safety. Also many driving offences are crimes of strict liability eg.
speeding, driving without insurance. The use of strict liability in criminal
law is controversial as it means a person may be liable where they are not at
fault or have taken all reasonable care to ensure compliance of the law (See
in particular Callow v Tillstone). However, the harshness of strict liability in
criminal law is generally tolerated as it brings practical benefits and is
often used to provide a greater level of protection to the public in areas
where it is perceived that there is a need to provide such protection.
As strict liability has the potential to create injustice and operate harshly
there is a general presumption that mens rea is required to impose criminal
liability:

Gammon (Hong Kong) Ltd v Attorney-General of Hong Kong [1985] AC
1
Case summary

According to Gammon, this presumption may be rebutted where:

1. The crime is regulatory as oppose to a true crime; or
2. The crime is one of social concern; or
3. The wording of the Act indicates strict liability; or
4. The offence carries a small penalty.
There is some overlap with the categories in that where a crime is regulatory
it is often one of social concern and carries a small penalty.

1. The crime is regulatory as oppose to a true crime

Where the crime is regulatory as oppose to a true crime, the presumption
of mens rea gives way to a finding of strict liability. Conversely where there
is a true crime the presumption ofmens rea prevails. This was seen in Sweet
v Parsley [1970] AC 132 where it was held that the offence in question was
a true crime and therefore mens rea was required:
Sweet v Parsley [1970] AC 132 Case summary

Examples of regulatory offences include healthy and safety regulations
eg pollution and sale of unfit meat:

Alphacell v Woodward [1972] AC 824 Case summary

Callow v Tillstone (1900) 64 JP 823 Case summary

It was thought that there existed a rule on age related offences, ie that strict
liability applied in relation to the age and that it was no defence if the person
held a reasonable belief that the person was over the specified age:

R v Prince (1875) LR 2 CCR 154 Case summary

However, this was later held not to apply and if any such rule did exist, it did
not survive the decision in Sweet v Parsley in relation to true crimes. See:

B v DPP [2000] 2 AC 428 Case summary

R v K [2001] UKHL 41 Case summary

2. The crime is one of social concern

Where the crime is one of social concern then the presumption of mens
rea may be rebutted. This is based on the assumption that strict liability
imposes higher standards of care and provides greater levels of protection to
the public. Examples of offences of social concern include driving offences
eg R v Williams [2011] 1 WLR 588 (case summary) and health and safety
regulations. See Alphacell v Woodward and Callow v Tillstone above.

3. The wording of the Act indicates strict liability
The presumption of mens rea is rebutted by express provision in the statute
excluding the requirement of mens rea. Where the statute is silent as to the
requirement the general presumption remains, however, the courts may look
at other offences created under the same Act. If the other offences expressly
require mens rea, the courts may well take the view that the omission to
refer to such a requirement was deliberate and that Parliament intended to
create an offence of strict liability. This approach was taken in the following
cases:

PSGB v Storkwain Ltd [1986] 2 All ER 635 Case summary

Cundy v Le Cocq (1884) 13 QBD 207 Case summary

However, a different approach was taken in the following case in which the
court was considering the same statute which applied in Cundy:

Sherras v De Rutzen [1895] 1 QB 918 Case summary

4. The offence carries a small penalty
Generally where an offence carries a small penalty, this will indicate that it
is not a true crime and therefore one of strict liability. For example in the
case of Williams [2011] 1 WLR 588 (Case summary) the offence of causing
death by driving without a licence was considered to be one of strict liability
as the penalty was max 2 years imprisonment whereas the offence of
causing death be reckless driving carried a max sentence of 14 years.
However, just because an offence carries a heavy penalty does not mean
that it is one requiring mens rea:

R v Prince (1875) LR 2 CCR 154 Case summary

R v Howells [1977] 3 All ER 417 Case summary

Arguments for allowing strict liability

Protection of the public

Strict liability raises standards where the health and safety of the public is at
stake and forces those in a position of responsibility to take extra
precautions.
For example:
Sale of unfit meat - Callow v Tillstone
Pollution - Alphacell v Woodward
Possession of firearms - R v Howells

Dangerous buildings - Gammon
Driving offences

Promoting enforcement of the law

Strict liability ensures more convictions are secured and does not allow
people to escape liability through a fabricated account of their state of mind.

Deterrence/raising standards
It is often argued that imposing strict liability will lead to people taking more
care and act as a deterrent to others.

Easier to Administer
The majority of strict liability offences are dealt with administratively often
through the post without the need for a court hearing. Other agencies of
enforcement may be involved such as the Health and Safety Executive and
Environmental Agencies. If mens rea was required to proved in every case
for such offences, the courts would be unable to cope with the workload.

Arguments against strict liability

Injustice

A person may be liable where they are not at fault and have exercised all
reasonable care. This offends the natural sense of justice as illustrated in the
following cases:

Callow v Tillstone - The butcher was liable despite doing everything possible
to have the meat checked out.

R v Howells - The defendant was liable despite being unaware that he
required a licence and had no intention to use the gun as a weapon

PSGB v Storkwain - The pharmacist had a genuine belief the prescription
was valid.

Strict liability does not necessarily act as a deterrent

In order to act as a deterrent, a person must have knowledge of what they
are doing is wrong before being able to take steps to prevent it. In many
cases the defendant is unaware of the circumstances leading to liability –
see Callow v Tillstone, Alphacell v Woodward, PSGB v Storkwain.

Also speeding, which is arguably a crime which is committed more than any
other, is one of strict liability. If strict liability was an effective deterrent then
we would have no speeding cars on the roads.

Stigma

Any criminal offence carries a stigma and needs to be declared for
employment purposes. It can cause immense damage to a person's or a
business' reputation and therefore proof of fault should always be a
requirement in establishing criminal liability.

Causation in criminal liability
Causation refers to the enquiry as to whether the defendant's conduct (or
omission) caused the harm or damage. Causation must be established in
all result crimes. Causation in criminal liability is divided into factual
causation and legal causation. Factual causation is the starting point and
consists of applying the 'but for' test. In most instances, where there exist
no complicating factors, factual causation on its own will suffice to
establish causation. However, in some circumstances it will also be necessary
to consider legal causation. Under legal causation the result must be
caused by a culpable act, there is no requirement that the act of the
defendant was the only cause, there must be no novus actus
interveniens and the defendant must take his victim as he finds him (thin
skull rule).

Factual causation
Factual causation is established by applying the 'but for' test. This asks, 'but
for the actions of the defendant, would the result have occurred?' If yes, the
result would have occurred in any event, the defendant is not liable. If the
answer is no, the defendant is liable as it can be said that their action was a
factual cause of the result.

R v White [1910] 2 KB 124

Case summary

Legal Causation
1. Legal causation requires that the harm must result from a culpable act:

R v Dalloway (1847) 2 Cox 273

Case summary

However, this does not apply where the offence is one of strict
liability:
R v Williams [2011] 1 WLR 588

Case summary

2. The defendant's action need not be the sole cause of the resulting harm,
but it must be more than minimal:
R v Benge (1865) 4 F. & F 504

Case summary

3. There must be no novus actus interveniens.

A novus actus interveniens is a new intervening act which breaks the
chain of causation. Different tests apply to decide if the chain has been
broken depending on the intervening party.

a). Act of a third party
The act of a third party will generally break the chain of causation unless the
action was foreseeable:

R v Pagett (1983) 76 Cr App R 279 Case summary

b). The act of the victim

Where the act is of the victim, the chain of causation will not be broken
unless the victim's actions are disproportionate or unreasonable in the
circumstances:
R v Roberts [1971] EWCA Crim 4

Case summary

R v Williams & Davis [1992] Crim LR 198

Case summary

c) Medical intervention

Where medical intervention contributes to death, the courts have been
inconsistent in their approach.
R v Jordan (1956) 40 Cr. App. E. 152 Case summary

R v Smith [1959] 2 QB 35 Case summary

R v Cheshire [1991] 1 WLR 844

Case summary

4. Thin skull rule (egg shell skull rule)
Under the thin skull rule, the defendant must take his victim as he finds
him. This means if he has a particularly vulnerable victim he is fully liable for
the consequences to them even if an ordinary person would not have
suffered such severe consequences. For example if D commits a minor
assault on V who has a heart condition and V suffers a heart attack and dies.
D is liable for the death of V even though such an attack would result in no
physical harm to some one without a heart condition.

This rule applies irrespective of whether the defendant was aware of the
condition.

R v Hayward (1908) 21 Cox 692 Case summary

The thin skull rule also applies where the victim has refused medical
treatment which would have saved them:

R v Holland (1841) 2 Mood. & R. 351 Case summary

R v Blaue [1975] 1 WLR 1411 Case summary

Non-fatal offences against the person - Criticisms











The Law Commission in Legislating the Criminal Code: Offences
Against the Person and General Principles criticised NFOAPs on
three main issues: firstly the language used is complicated, obscure
and out dated, secondly the structure of the offences and thirdly the
Law Commission was critical of the effectiveness of the current law on
NFOAPs. The Law Commission proposed to repeal Ss 18, 20 & 47 and
replace them with new provisions.
The Language used in the OAPA 1861 is no doubt out dated. For
example the words ‘grievous’ and ‘malicious’ are not generally used in
modern times and have required interpretation by the courts.
Grievous has been interpreted as meaning really serious (DPP v
Smith), however, malicious has been given an interpretation quite
unrelated to what one might expect. In general parlance the word
malicious is perhaps related to evil or hatred whereas in legal terms
malicious means intention or reckless.
There exist further problems with misleading language used. For
example, in every day usage, the word ‘assault’ generally conjures up
an image of physical attack whereas in legal terms no physical contact
is required.

The term ‘battery’ in general usage suggests a higher level of force
than is actually required by law. The use of the word bodily harm
under s.18, 20 and 47 includes psychiatric harm according to R
v Ireland, R v Burstow & R v Constanza yet it is highly unlikely the
Victorian Draftsmen would have had this type of harm in mind.











Use of the word ‘inflict’ has caused the courts considerable problems.
It was first interpreted as requiring proof of an assault or battery (R v
Clarence). In R v Wilson it was stated all that was required was the
direct application of force, however, in R vMartin the defendant was
liable where the force was indirectly applied. The current meaning was
established in R v Burstow as simply meaning cause.

The structure of the offences can also be criticised. There is no
statutory definition of assault or battery and there are no clear
boundaries between the offences.
Any intentional touching of another without consent will amount to a
battery (Faulkner v Talbot) whereas any hurt or injury calculated to
interfere with the comfort of the victim amounts to ABH (R v Miller).
There seems little difference between the two other than interference
with comfort, yet battery carries a maximum penalty of 6 months
whereas for ABH it is 5 years.
Similarly there is no clear boundary between ABH and GBH it is for the
jury to decide what amounts to really serious harm and different juries
will differ in their opinions.

ABH and GBH can have very different levels of severity of injury and
yet an offence of GBH under s.20 carries the same max penalty as an
offence of ABH under s.47. Yet for GBH the punishment jumps from 5
years to life for an offence under s.18 which could involve the same
injury as an offence under s.20.







It is illogical to have a separate offence of wounding which is
considered alongside GBH. A breaking of the 7 layers of the skin
constitutes a wound (Moriarty v Brookes). Thus a pin prick could
suffice which is clearly far removed from really serious harm.
A further criticism is the effectiveness of the offences. Many NFOAPs
will go unpunished. Many will not be reported and many that are
reported may not be prosecuted. This has been a particular problem in
the past with regards to domestic violence. Prosecutors will generally
charge under the lesser offence in order to secure a conviction and
plea bargaining is often used.
Also there is a practice in some areas of not prosecuting assault and
battery as the costs involved outweigh the benefits

Common assault
Common assault is a summary offence. Assault and battery have no
statutory definition. The definition and all elements of the offence
of assault are set out in case law. The punishment (maximum 6 months
imprisonment) is set out in statute under s.39 Criminal Justice Act 1988.

Definition of assault

Fagan v MPC [1969] 1Q.B. 439

Case summary

The House of Lords set the definition of assault as:
"an assault is committed where the defendant intentionally or
recklessly causes the victim to apprehend immediate unlawful personal
violence."

Actus reus of assault:
 The victim must apprehend
 Immediate
 Unlawful
 Personal violence

Apprehend
The victim need not be put in fear but must be aware that they are about to
be subjected to violence. If the victim does not anticipate unlawful personal
violence there is no assault:

R v Lamb [1967] 2 QB 981

Case summary

Where the victim apprehends immediate unlawful personal violence an
assault will be committed even if there was no actual threat of violence:

Logdon v DPP [1976] Crim LR 121

Case summary

The actions of the defendant must cause the victim to apprehend immediate
unlawful personal violence. Originally it was thought that only conduct could
amount to an assault:

R v Meade and Belt (1823) 1 Lew. C.C. 184

Case summary

However in R v Wilson [1955] 1 WLR 493 (Case summary), it was stated
obiter that words could amount to an assault. Later case law has accepted
that words can amount to an assault:

R v Constanza [1997] Crim LR 576 Case summary

In the following case the court went further and held that silence can
amount to an assault:

R v Ireland [1997] 3 WLR 534

Case summary

Words can also negate an assault:

Tuberville v Savage (1669) 1 Mod Rep 3

Immediate

Case summary

Threats of future violence will not amount to an assault. Smith and Hogan's
Criminal Law (4th ed.), p.351 states, "There can be no assault if it is obvious
the complainant the defendant is unable to carry out his threat, as where D
shakes his fist at P who is safely locked inside his car." However, the courts
have adopted a more liberal approach to the requirement of immediacy:

R v Constanza [1997] Crim LR 576 Case summary

Smith v Chief Constable of Woking (1983) 76 Cr App R 234
summary

Case

Unlawful

If the defendant has a lawful excuse to use force, the actions will not
amount to an assault. This includes:

 Reasonable punishment of a child S.58 Children Act 2004
 Where the victim consents
 Where the defendant acts in self- defence or prevention of a crime

Personal violence

The term personal violence can be misleading in that the victim need only
apprehend the level of force that amounts to a technical battery. Ie any
touching will suffice.

Mens rea of assault
The mens rea of assault is intention to cause the victim to apprehend
immediate unlawful personal violence or being reckless as to whether such
apprehension is caused.(MPC v Fagan[1969] 1Q.B. 439 case summary).
The case of R v Parmenter [1991] 94 Cr App R 193 (case summary)
established that subjective recklessness applies to non-fatal offences against
the person.

Battery
Battery is a summary offence. Assault and battery have no statutory
definition. The definition and all elements of the offence of battery are set
out in case law. The punishment (maximum 6 months imprisonment) is set
out in statute under s.39 Criminal Justice Act 1988.

Definition of battery
R v Ireland [1997] 3 WLR 534 Case summary
Lord Steyn defined battery as:
"unlawful application of force by the defendant upon the victim"

Actus reus of battery


Application



Unlawful



Physical force

Application

The application of force need not be direct.
DPP v K (a minor)[1990] 1 WLR 1067 Case summary
Fagan v MPC [1969] 1Q.B. 439

Case summary

Unlawful
If the defendant has a lawful excuse to use force the actions will not amount
to a battery. This includes:



Reasonable punishment of a child S.58 Children Act 2004



Where the defendant acts in self- defence or prevention of a crime



Where the victim consents

On the issue of consent specifically related to battery, see Goff LJ's
comments in the following case:
Collins v Wilcock [1984] 3 All ER 374 Case summary

See also:
Donnelly v Jackman [1970] 1 All E.R. 987 Case summary

Physical force
Physical force is perhaps a misleading phrase in that it suggests a high level
of force however, any touching will suffice:

Faulkner v Talbot [1981] 3 All ER 468
Lord Lane CJ defined unlawful physical force as
"any intentional [or reckless] touching of another person without the consent
of that person and without lawful excuse. It need not necessarily be hostile,
rude, or aggressive.”

Mens rea of battery


Intention to apply unlawful physical force or,



Being reckless as to whether such force is applied (Subjective reckless
applies R vParmenter [1991] 94 Cr App R 193 Case summary)

Actual Bodily Harm (ABH) under S.47

The offence of actual bodily harm is set out in S.47 Offences Against
the Person Act 1861. Which provides that it is an offence to commit an
assault occasioning actual bodily harm. Whilst the statute only refers to
assault, the offence may also be committed by a battery. In fact it is far
more common for offences under s.47 to be committed by battery rather
than by an assault. Actual bodily harm is a triable-either-way offence. The
maximum sentence for ABHis 5 years imprisonment.

Actus reus of ABH


Assault or battery



which causes



Actual bodily harm

Assault or battery
To constitute an offence under s.47 all the elements of
an assault or battery must be present. However, some factors which may
make an assault or battery lawful can not be applied to make an offence
under s.47 lawful in particular:
 Reasonable punishment of a child S.58 Children Act 2004

 Consent

A-G ref no 6 of 1980 [1981] QB 715 Case summary
It used to be lawful for parents or others in loco parentis to use reasonable force in order to
chastise children:
R v Hopley (1860) 2 F&F 202 Case summary

However, English law regarding lawful chastisement was held to be in breach of the European
Convention of Human Rights:

A v UK (1999) 27 EHRR 611 Case summary

 Lawful chastisement was abolished by s.58 of the Children Act 2004 and replaced

with reasonable punishment of a child. This can not be used as a defence in relation
to ABH, GBH or wounding but may be allowed in assault and battery only.

The assault or battery must cause actual bodily harm

This requires a consideration of both factual and legal causation.

Actual Bodily Harm


The meaning of actual bodily harm was considered in:

R v Miller [1954] 2 All ER 529 Case summary

Lynsky J:
 "Actual bodily harm includes any hurt or injury calculated to interfere with the health
or comfort of the victim"

R v Chan Fook [1994] 1 WLR 689

Case summary

LJ Hobhouse:
"The word "actual" indicates that the injury (although there is no need for it to be
permanent) should not be so trivial as to be wholly insignificant."

Bodily harm
Bodily harm can include psychiatric injury see:

R v Chan Fook [1994] 1 WLR 689

R v Ireland [1997] 3 WLR 534

Case summary

Case summary

Bodily harm also includes the cutting off of hair:

DPP v Smith [2006] EWHC 94 Case summary

Mens rea of Actual Bodily Harm

The mens rea of ABH is intention or reckless (subjective) as to the assault or battery.
There is no requirement that the defendant intended or was reckless as to the injury
inflicted:


R v Roberts [1971] EWCA Crim 4 Case summary

R v Venna [1975] 3 WLR 737

Case summary

R v Spratt [1990] 1 WLR 1073 Case summary
Wounding and GBH S.20 & S.18 OAPA 1861

The offences of wounding and GBH are found under two separate sections of
the Offences Against the Person Act 1861. GBH meaning grievous bodily harm. A
conviction ofwounding or GBH under S. 20 represents the lesser offence which
carries a maximum penalty of 5 years imprisonment. Wounding and GBH under
S.18 is a more serious offence and carries a maximum sentence of 25 years. There are
common elements of the two offences. The main difference between the offences
under s.18 and s.20 relate to the mens rea. Also the offence under s.20 is triable-eitherway, whereas the offence of grievous bodily harm under s.18 is indictable.

S.20 Offences Against the Person Act 1861
S.20 OAPA 1861 provides:
"whosoever shall unlawfully and maliciously wound or inflict any grievous bodily
harm on any other person, either with or without a weapon or instrument, shall be
guilty of a misdeamenour"

Actus reus of the s.20 offence



Unlawfully



Wound



or inflict GBH



on another person

Unlawfully
Some wounding or GBH may be classed as lawful. This covers those who are acting
in self defence or prevention of crime and in limited circumstances where the victim
has consented eg surgical interference and where the injury results from properly
conducted games and sports. For more detailed review of the circumstances in which
consent may operate see the lecture outline on consent. Lawful chastisement R v
Hopley (1860) 2 F&F 202 (Case summary) or reasonable punishment of a child is not
available to the offences of wounding or GBH (S.58 Children Act 2004).

Wound

A wound exists where there is a break in the continuity of the skin:

Moriarty v Brookes [1834] EWHC Exch J79 Case summary

An internal rupture of blood vessels will not constitute a wound:

C (a minor) v Eisenhower [1984] QB 331 Case summary

Grievous Bodily harm

Grievous bodily harm means really serious harm:

DPP v Smith [1961] AC 290

Case summary

If the victim is particularly vulnerable, the jury is entitled to take this into account
when assessing if the injury is really serious:

R v Bollom [2004] 2 Cr App R 6 Case summary

The question of what amounts to really serious harm is to be objectively assessed:

R v Brown and Stratton [1997] EWCA Crim 2255 Case summary

GBH includes psychiatric injury:

R v Burstow [1997] 3 WLR 534 Case summary

Inflict
The use of the word inflict in s.20 has given rise to some difficulty. It has been held to
include indirect application of force:

R v Martin (1881) 8 QBD 54 Case summary

Originally the courts interpreted inflict to mean that there must be proof of an assault
or battery:

R v Clarence (1889) 22 QB 23 Case summary

More recently inflict was interpreted to mean the direct or indirect application of
force:

R v Wilson [1984] AC 242 Case summary

In the context of psychiatric injury, the word inflict simply means cause. There is no
requirement of assault or battery or direct or indirect application of force:
R v Burstow [1997] 3 WLR 534 Case summary

Mens rea of wounding or GBH under s.20
The defendant must have the intention or be reckless as to the causing of some harm.
There is no need for the prosecution to establish that they intended or was reckless as
to causing serious harm:

R v Savage [1991] 94 Cr App R 193 Case summary

Subjective recklessness applies (the defendant must foresee the risk of causing some
harm):
R v Parmenter [1991] 94 Cr App R 193 Case summary

S.18 Offences Against the Person Act 1861

S.18 provides:

"Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause any
grievous bodily harm to any person, with intent, to do some grievous bodily harm to any person,
or with intent to resist or prevent the lawful apprehension or detainer of any person, shall be
guilty of felony."

Actus reus of the s.18 offence



Unlawfully



wound or cause GBH



on any person

Since the decision in Burstow there is little difference between in the actus reus under
s.20 and s.18. The one difference is that the offence under s.20 must be committed on
another person whereas s.18 can be committed on any person and thus would cover
those who intentionally wound or inflict GBH on themselves.
Mens rea
The mens rea under s.18 requires either:



Intention to cause GBH or
Intention to resist or prevent the lawful detainer of any person.


The law of murder


















The law of murder is set out in common law. The legal
definition of murder is 'the unlawful killing of a human
being in the Queen's peace, with malice aforethought'.
The actus reus of murder consists of the unlawful killing of a
human being in the Queen's peace. The mens rea of
murder is malice aforethought, which has been interpreted by
the courts as meaning intention to kill or intention to
cause GBH.
A murder conviction carries a mandatory life sentence. The
judge passing sentence can not pass a lesser sentence no
matter how mitigating the circumstances might be. There exist
three partial defences to murder which may reduce the
conviction to voluntary manslaughter which carries a
maximum sentence of life and thus allows the judge discretion
on sentencing. These partial defences are contained in
the Homicide Act 1957 and consist of diminished
responsibility, provocation and suicide pact.










The actus reus of murder



The actus reus of murder is the unlawful killing of a human
being in the Queen's peace.



























Unlawful killing

Unlawful killing can be committed by an act or an omission.
Therefore the case law relating to omissions found here will
also be relevant to the law of murder. All unlawful killings are
result crimes and thus causation must also be established.
Some killings may be classed as lawful. For example, killing in
self-defence. Also when the death penalty was implemented,
such state ordered executions would be classed as lawful.
Soldiers and police may kill in the course of their duties but will
be liable for murder if they go beyond their duty or use
excessive force:
R v Clegg [1995] 1 AC 482

Also doctors may lawfully kill in limited circumstances:
Administering pain relief see:






Dr Bodkin Adams 1957



Withdrawal of treatment see:



Case summary

Case summary

Airedale Hospital Trustees v Bland [1993] 2 WLR 316





summary





The defence of necessity:



Re A [2001] 2 WLR 480



Case summary

Case



Human being


 The second element of the actus reus of murder requires the victim

to be a human being. This obviously excludes animals from the remit
of murder but raises questions as to at what point does one become a
human being and at what point does one cease to be a human being.


 A foetus is not classed as a human being and therefore a person who
kills a foetus can not be charged with murder:




 A-G ref (No 3 of 1994) [1998] AC 245 Case summary

 A foetus becomes a human being when it has been fully expelled from
it mother and has an independent existence.


 A person ceases to be a human being when their brain stem ceases to
be active irrespective of whether they are being kept alive by artificial
means:




 R v Malcherek and Steel [1981] 2 ALL ER Case summary

 R v Inglis [2011] 1 WLR 1110
Case summary

 Disability now matter how extreme does not prevent a person
being a human being see R v Inglis above.


 In the Queen's Peace

 The third aspect of the actus reus of murder excludes the killing of
alien enemies in the time of war.



 Mens rea of murder



 The mens rea of murder is malice aforethought. However this term

is misleading in that it suggests some sort of ill will and pre-planning.
Malice aforethought has been interpreted in the courts as meaning
intention to kill and intention to cause GBH.



 R v Vickers [1957] 2 QB 664


Case summary






R v Cunningham [1982] AC 566

Case summary




The mens rea of murder covers not only direct intent, but
also extends to oblique intent where the current test
established in R v Woollin (case summary)applies. See further
the lecture on intention.

Constructive manslaughter








Constructive manslaughter is also referred to as unlawful act
manslaughter. Constructive manslaughter is a form
of involuntary manslaughter in that an unlawful killing has taken
place where the defendant lacks the mens rea of murder. There are
two types of involuntary manslaughter: constructive
manslaughter exists where the defendant commits
an unlawfuldangerous act which results in death; where the
defendant commits a lawful act which results in death this may
amount to gross negligence manslaughter.







Elements of the offence:



The offence of constructive manslaughter can be broken down into
three elements:





1. There must be an unlawful act





2. The unlawful act must be dangerous







3. The unlawful dangerous act must cause death









1. There must be an unlawful act



Originally any unlawful act would suffice for constructive
manslaughter even if it was only against civil law:









R v Fenton (1830) 1 Lew CC 179

Case summary



However, it was later established that only offences against criminal
law would suffice:











R v Franklin (1883) 15 Cox CC 163

Case summary



All elements of the unlawful act must be present. If there is no
unlawful act, there can be no conviction for constructive manslaughter
(although there may possibly be liability for gross negligence
manslaughter):






R v Lamb [1967] 2 QB 981

Case summary







R v Scarlett [1993] 98 Cr App 290 Case summary







R v Arobekieke [1988] Crim LR 314

Case summary







There must be an unlawful act, omissions will not suffice:






R v Lowe [1973] QB 702

Case summary







The unlawful act need not be directed at the victim:







R v Larkin (1942) 29 Cr App R 18 Case summary








R v Mitchell [1983] QB 741

Case summary







A-G Ref No 3 OF 1994 [1998] AC 245

Case summary



The unlawful act need not be directed against a person:






R v Goodfellow (1986) 83 Cr App R 23 Case summary









2. The unlawful act must be dangerous



The unlawful act must be dangerous, however, dangerous is not given
its ordinary and natural meaning. The specific meaning of dangerous
was given by Edmund Davies LJ in Church as:





"the unlawful act must be such as all sober and reasonable people
would inevitably recognise must subject the other person to, at least,
the risk of some harm resulting therefrom, albeit not serious harm."









R v Church [1965] 2 WLR 1220



The test is thus objective, concerned with what a sober and
reasonable person would regard as giving rise to some harm.
This is assessed as if the reasonable person were present at
the time of the unlawful act and observing. The reasonable
person will thus have only the knowledge of an observer any
special factors which would not be apparent to an observer will
not be taken into account.














Case summary

Compare the cases:

R v Dawson and others [1985] 81 Cr App R
150
Case summary

R v Watson [1989] 2 All ER 865

Case summary






To amount to dangerous for these purposes the sober and reasonable
person must recognise the act as inevitably resulting in physical
harm:














R v Carey & Ors [2006] EWCA Crim 17

Case summary

Any knowledge of the defendant, including a mistaken belief,
can not be imputed to the sober and reasonable person:








R v Ball [1989] Crim LR 730





3. The unlawful dangerous act must cause death



This has been particularly problematic for the courts in relation
to where a death occurs from taking drugs. The question arises
as to whether those who supply such drugs can be liable for
manslaughter. Where the defendant actually injects the drug to
another person resulting in death, the position is quite straight
forward. The defendant's unlawful act is administering a
noxious thing contrary to s.23 Offences Against the Person Act
1861 and this act causes death. The defendant is liable for
manslaughter notwithstanding the fact that the victim
consented to the injection. See:




Case summary





R v Cato [1976] 1 WLR 110

Case summary



However, Lord Widgery CJ's obiter comments lead to confusion
in the law. Lord Widgery stated had it not been possible to rely
on the unlawful act of administering a noxious thing, the








defendant would nevertheless be liable as he had committed
the unlawful act of possession. The difficulty being that
possession of drugs does not in itself cause death.
In R v Dalby it was recognised that the possession or supply of
drugs did not cause death:






R v Dalby (1982) 74 Cr App R 348

Case summary



However, the case of R v Kennedy proved problematic for the courts. It
was subject to two appeals to the Court of Appeal and an appeal to the
House of Lords. It concerned the position of a person who had
prepared a solution of heroin and handed it to the victim who then
injected himself. The first appeal was unsuccessful:










R v Kennedy [1999] Crim LR 65 Case Summary



His conviction was upheld on the grounds that he had assisted the
unlawful act of the deceased in self-injecting.








However, in the subsequent case of R v Dias it was pointed out that it
is not a crime to inject oneself:






R v Dias [2002] 2 Cr App R 5



This point was followed in R v Richards where the conviction was
quashed as it was based on the law as stated in Kennedy's first
appeal:







Case summary

R v Richards [2002] EWCA Crim 3175

Case summary










This lead to Kennedy's further appeal to the Court of Appeal:





R v Kennedy [2005] 1 WLR 2159



However, this was also unsuccessful. The court held, following the case
of R v Rodgers, that the unlawful act was his assisting in the
administration of the drug and thus amounted to an offence under
s.23.

Case summary











R v Rodgers [2003] 1 WLR 1374



However on appeal to the Lords, the House affirmed the decision in R
v Dias and held that it is never appropriate to convict a person of
constructive manslaughter, where he supplies a class A drug to a fully
informed and responsible adult who then freely and voluntarily self
administers the drug.







Case summary






R v Kennedy [2007] 3 WLR 612






Mens rea of constructive manslaughter?







Case summary

At one time it was thought that it must be shown that the
defendant had the intention to frighten or harm a person or
could foresee the risk of harm. This was based on an obiter
statement by Lord Denning in a civil case:










Gray v Barr [1971] 2 QB 554

Case summary

However, in the following case it was established that the
statement had no relevance in criminal case.








DPP v Newbury [1977] AC 500

Case summary

Consequently it need only be established that the defendant had the mens rea of the unlawful
act committed. There is no requirement that the of mens rea in relation to the ensuing death.

Gross negligence manslaughter
Gross negligence manslaughter is a form of involuntary
manslaughter where the defendant is ostensibly acting lawfully.
Involuntary manslaughter may arise where the defendant has
caused death but neither intended to cause death nor intended to
cause serious bodily harm and thus lacks the mens rea of
murder. Whereas constructive manslaughter exists where the
defendant commits an unlawful act which results in death, gross
negligence manslaughter is not dependant on demonstrating an
unlawful act has been committed. Gross negligence
manslaughter can be said to apply where the defendant commits a
lawful act in such a way as to render the actions criminal. Gross
negligence manslaughter also differs from constructive
manslaughter in that it can be committed by omission.

Gross negligence manslaughter was originally set out in:
R v Bateman 19 Cr App R 8

Case summary

This was followed in:
Andrews v DPP [1937] AC 576

Case summary

This was considered unsatisfactory as the test was circular in that
the jury were being told in effect to convict of a crime if they
thought a crime had been committed. Subsequently gross
negligence manslaughter was largely replaced with reckless
manslaughter:

R v Lawrence [1982] AC 510

R v Seymour [1983] 2 AC 493

Case summary

Case summary

Kong Cheuk Kwan v The Queen (1985) 82 Cr App R 18
summary

Case

However, the House of Lords in Adomako held that the law as stated
in R v Seymour [1983] 2 A.C. 493 should no longer apply since the
underlying statutory provisions on which it rested have now been
repealed by the Road Traffic Act 1991.

R v Adomako [1994] 3 WLR 288

Case summary

Following Adomako it was necessary for the prosecution to establish
that the defendant:
1.

Owed a duty of care to the victim

2.

Was in breach of duty

3.

The breach of duty caused death

4.

The defendant's conduct was so bad in all the circumstances as to amount in the jury's opinion
to a crime.

The following case confirmed that R v Adomako required no proof of mens
rea on behalf of the defendant:

A-G ref no 2 of 1999 [2000] 2 Cr App R
207
Case summary

This was affirmed in the following case where it was ruled that the
CPS were wrong to base a decision not to prosecute on the lack of
subjective recklessness of the employer:
R v DPP ex parte Jones [2000] IRLR 373
Case summary

The following case suggests a fifth ingredient to Adomako of criminality or
badness:

Rowley v DPP [2003] EWHC 693

Case summary

Lord Mackay, in R v Adomako, made it clear that civil law concepts of duty of
care should apply in deciding the criminal liability of a person for gross
negligence manslaughter. This has proved problematic outside the realm of
medical negligence and driving cases. In particular, the question of whether
a drug dealer owes a duty of care to one whom he has supplied seems to be
illogical although the courts have not ruled out the possibility:

R v Khan & Khan [1998] Crim LR 830

Case summary

A woman who supplied drugs to her sister was held to owe a duty of care to
summon help for her when she displayed symptoms of an overdose. The
duty arose not from her familial relationship, nor from her acceptance of
duty but through her supplying the drugs and thus creating a dangerous
situation:

R v Evans [2009] 2 Cr App R 10 Case summary

In addition it has been held that the defence of ex turpi causa, which
operates in civil law to negate a duty of care where the victim is acting is
acting in the course of a joint criminal enterprise when injury is inflicted, has
no application in criminal law:

R v Wacker [2002] EWCA Crim 1944 Case summary

R v Willoughby [2004] EWCA Crim 3365

Case summary

The problem relating to the circularity of the test for gross negligence
manslaughter remained ie the jury were to find the defendant liable of a
crime if they thought his actions amounted to a crime. This was challenged
as being in breach of Art 6 & 7 of the European Convention of Human Rights.
However, the Court of Appeal held that the test was sufficiently certain to
comply with Convention rights:

R v Misra & Srivastava [2005] 1 Cr App R 328 Case summary

Voluntary Manslaughter - Diminished responsibility

Diminished responsibility is one of three special defences which
exist solely for the offence of murder. It is contained in
the Homicide Act 1957 as modified by the Coroners and Justice
Act 2009. Where the defence of diminished responsibility is

successfully pleaded, it has the effect of reducing a murder
conviction to manslaughter. The three special defences
ofdiminished responsibility, loss of control and suicide pact differ
from general defences in that they do not apply to all crimes and
also the effect is to reduce criminal liability rather than to absolve
the defendant from liability completely.
Diminished responsibility is set out in s.2 of the Homicide Act
1957 as ammended by s.52 of the Coroners and Justice Act
2009. To rely on the defence, the defendant must be able to
demonstrate the following:
1. An abnormality of mental functioning caused by a
recognised medical condition.
2. Which provides an explanation for the defendant’s acts
or omissions in being party to the killing.
3. Which substantially impaired his/her mental ability to
either:
a)

Understand the nature of their conduct or

b)

Form a rational judgment or

c)

Exercise self–control

1. Abnormality of the mental functioning caused by a
recognised mental condition.

Prior to the Coroners and Justice Act 2009, the Homicide Act 1957
referred to abnormality of the mind. The change of wording in this
respect was simply to clarify the law and is not expected to make
any changes to the applicability of the defence. Thus the case law
under the Homicide Act is still helpful in determining what may
count as an abnormality of the mental functioning. The question of
whether the defendant is suffering from an abnormality of
the mental functioning is for the jury to decide after hearing medical
evidence. The jury are not bound to follow medical opinion it is
ultimately their decision as to whether the defence should succeed.
A notorious example of the jury ignoring medical
opinion was present in the trial of Peter Sutcliffe (the
Yorkshire ripper) where the medical opinion was unanimous that the
defendant was a paranoid schizophrenic, yet the jury refused to
allow him the defence. Abnormality of the mental functioning is
assessed by reference to what a reasonable man would regard as
abnormal. It has a wide meaning and encompasses the inability to
exercise will power and control.
R v Byrne (1960) 2 Q.B. 396

Case summary

Some examples of what has been held to constitute an abnormality
of the mind include:



Jealousy (R v Miller 1972,even unfounded jealousy R v
Vinagre 1979)



Battered woman syndrome (R v Hobson 1997, R
v Ahluwalia 1993)



Pre-menstrual tension (R v Smith 1982, R v Reynolds 1988)



Epilepsy (R v Campbell 1997)



Chronic depression (R v Seers, R v Gittens 1984)

In each case the defendant must demonstrate that the
characteristic was excessive when compared to that experienced by
a reasonable person.
2. The abnormality must provide an explanation for D’s act or
omission in being party to the killing.
This is an issue of causation - S. 1B Homicide Act 1957 states that
an abnormality of the mental functioning provides an explanation
for D's Conduct if it causes or is a significant contributory factor in
causing D to carry out that conduct. This follows from the old law
under S.2 Homicide Act 1957 which required the abnormality to
be caused by an arrested or retarded development of the mind or
any inherent causes or induced by disease or injury.
This was interpreted by the courts as meaning that the abnormality
must be caused by an inside source and that outside factors causing
the abnormality such as alcohol or drugs could not be taken into
account unless the abnormality was as a result of the disease of
alcoholism or drug addiction or long term damage caused by the
intake of such intoxicants:

R v Tandy [1989] 1 WLR 350

R v Wood [2009] 1 WLR 496

Case summary

Case summary

R v Stewart [2009] 1 WLR 2507 Case summary

The same approach is applied where the defendant is intoxicated by
prescription drugs:

R v O'Connell 1997 Crim LR 683

Where there exists an abnormality of the mind in addition to intoxicants,
the legal position was stated in R v Gittens and affirmed in R v Dietschmann:

R v Gittens (1984) 79 Cr App R 272

Case summary

R v Dietschmann [2003] 1 AC 1209 Case summary

Acute voluntary intoxication (binge drinking) alone is not capable of founding
the defence of voluntary intoxication:

R v Dowds [2012] EWCA Crim 281

Case summary

3.Which substantially impaired his/her mental ability

The defendant must show that the abnormality of the mind must
have substantially impaired his mental ability to either:

 Understand the nature of their conduct or
 Form a rational judgment or
 To exercise self –control

This is a question for the jury to decide after hearing medical
evidence. It is not necessary to show a complete loss of control,
however, any evidence of planning on the part of the defendant may
be used to show the defendant’s mental ability was not impaired.

R v Campbell [1997] 1 Cr App R 199

Case summary

Raising diminished responsibility on appeal

If the defendant did not raise the defence of diminished
responsibility at trial, the appeal courts are reluctant to admit
fresh evidence relating to diminished responsibility:

R v Andrews [2003] EWCA Crim 2750

Case summary

In the case of R v Ahluwalia [1993] 96 Cr App. R. 133

Case summary Lord

Taylor CJ stated:
"Ordinarily, of course, any available defences should be advanced at trial.
Accordingly, if medical evidence is available to support a plea of diminished

responsibility, it should be adduced at the trial. It cannot be too strongly emphasised
that this court would require much persuasion to allow such a defence to be raised
for the first time here if the option had been exercised at the trial not to pursue it.
Otherwise, as must be clear, defendants might be encouraged to run one defence at
trial in the belief that if it fails, this court would allow a different defence to be raised
and give the defendant, in effect, two opportunities to run different defences.
Nothing could be further from the truth. Likewise, if there is no evidence to support
diminished responsibility at the time of the trial, this court would view any wholly
retrospective medical evidence obtained long after the trial with considerable
scepticism.

In deciding whether to admit fresh evidence the court must have regard to
S. 23 of the Criminal Appeal 1968 which provides:
"(1) For purposes of this Part of this Act the Court of Appeal may, if they think it necessary
or expedient in the interests of justice -(c) receive any evidence which was not adduced in the proceedings from which the appeal
lies.
(2) The Court of Appeal shall, in considering whether to receive any evidence, have regard
in particular to -(a) whether the evidence appears to the Court to be capable of belief;
(b) whether it appears to the Court that the evidence may afford any ground for allowing
the appeal;
(c) whether the evidence would have been admissible in the proceedings from which the
appeal lies on an issue which is the subject of the appeal; and
(d) whether there is a reasonable explanation for the failure to adduce the evidence in those
proceedings."

The court is particularly reluctant to allow fresh evidence if the
decision not to raise the defence of diminished responsibility was
made for tactical reasons as oppose to reasons relating to the
capacity to instruct the defence:
R v Erskine [2009] EWCA Crim 1425

Case summary

R v Neaven [2006] EWCA Crim 955

Case summary

R v Diamond [2008] EWCA Crim 923 Case summary
R v Hendy [2006] EWCA Crim 819

R v Martin [2002] 2 WLR 1

Case summary

Case summary

The courts are more willing to admit fresh evidence relating to diminished
responsibility where there have been advances in medical opinion since the
time of trial:

R v Ahluwalia [1993] 96 Cr App. R. 133
R v Hobson [1997] EWCA Crim 1317

R v Campbell [1997] 1 Cr App R 199

Case summary

Case summary

Case summary

The defence of Loss of Control - Voluntary
manslaughter
The loss of control defence was introduced by s.54 of the
Coroners and Justice Act 2009and came into force in October
2010. Killings committed prior to this date continue to be governed
by the defence of provocation. The defence of loss of control is a
partial defence that may reduce liability for murder to manslaughter.
It does not operate to absolve the defendant of liability
completely. It is not a general defence and exists only for the
offence of murder. The loss of control defence was introduced in
response to concerns in relation to the defence of provocation. The
defence of provocation proved problematic and was subject to much

consideration by the appeal courts. The appeal courts were not
always consistent in the interpretation and application of the
defence of provocation as set out in s.3 of the Homicide Act. The
defence was also considered to have a gender bias in that it was too
favourable to those who killed as a result of losing their temper
(generally male defendants) but did not provide a tailored response
to those who kill out of a fear of serious violence (often women in
domestic violence). The extent to which the new legislation
addresses these issues is a moot point. The new defence of loss of
control is broadly similar to the defence of provocation in the
requirements, however, it is far more restrictive in its application.
The Ministry of Justice Impact Analysis of 2009 estimated that the
changes would result in a further 10-20 murder rather than
manslaughter convictions per year at a cost of £4-8M in the prison
and court systems.

S.54 Coroners and Justice Act 2009

S.54(1) A
person who kills or was party to a killing may be convicted of
manslaughter rather than murder where there exists:

(a) a loss of self-control,
(b) the loss of self-control had a qualifying trigger, and

(c) a person of D's sex and age, with a normal degree of tolerance
and self-restraint and in the circumstances of D, might have reacted
in the same or in a similar way to D.

Burden of proof
S.54 (5) - if sufficient evidence is adduced, the jury must assume
that the defence is satisfied unless the prosecution proves beyond
reasonable doubt that it is not.

1. Loss of self-control

There is no requirement that the loss of self-control be sudden (s.
54(2)). This represents a change from the law of provocation
which required the loss of control to be sudden and temporary (R v
Duffy [1949] 1 All ER 932 Case summary) which was a seen as a
significant barrier to victims of domestic violence. See, R
v Ahluwalia [1992] 4 All ER 889 Case summary,R v Thornton [1996]
1 WLR 1174 Case summary. However, in each of those cases there
was no loss of control, sudden or otherwise and thus the cases
would have the same outcome under the new defence. The Law
Commission had recommended that there should be no requirement
of loss of control as this was the element of the defence of
provocation that operated against women.
By virtue of s. 54(4), if D acted in a considered desire for revenge
they can not rely on the defence. This upholds the principle seen in:
R v Ibrams & Gregory (1982) 74 Cr App R 15 Case summary.

2. Qualifying trigger

Under the old law of provocation virtually any act was capable of
being used as evidence of provocation. This was considered
problematic in that it was too wide. The provocative action did not
have to be deliberate or aimed at the victim: R v Davies [1975] 1
QB 691 Case summary . Even a baby crying was accepted as a
provocative act (R v Doughty (1986) 83 Cr App R 319 Case summary).
The introduction of qualifying triggers have narrowed the ambit of
the new defence quite dramatically.

The qualifying triggers are set out in s. 55 Coroners and Justice
Act 2009. A qualifying trigger may only relate to:

S.55 (3) Where D's loss of self-control was attributable to D's fear
of serious violencefrom V against D or another identified person.
or
S.55 (4) Where D's loss of self-control was attributable to a thing
or things done or said(or both) which—
(a) constituted circumstances of an extremely grave
character, and
(b) caused D to have a justifiable sense of being seriously
wronged.

Limitations on qualify triggers
Despite the restrictive wording used to establish a qulaifying
trigger, S. 55(6) Coroners and Justice Act 2009 provides two further
limits as to what may be classed as a qualifying trigger:
S.55(6)(a) The fact that a thing done or said constituted
sexual infidelity is to be disregarded.
S.55(6)(b) A person may not raise a qualifying trigger if they
incited the thing done or said or the violence.

Sexual infidelity
The limitation based on sexual infidelity represents a major change
from the defence of provocation which was largely seen as an
excuse for crimes of passion. This change is based on the view that
in a civilised society there can be no excuse for killing due to
infidelity. Whilst this sentiment is commendable its inclusion has
received widespread criticism as to its workability in practice. This
provision has already been subject to interpretation by the Court of
Appeal:
R v Clinton [2012] EWCA Crim 2 Case summary
Incitement
The limitation based on incitement represents a move away from the law of
provocation where self–induced provocation could be relied upon:

R v Johnson [1989] 1 WLR 740

Case summary

3. Degree of tolerance and self-restraint
S.54(1)(c) requires that a person of the defendant's sex and age, with
a normal degree of tolerance and self-restraint and in the
circumstances of the defendant, might have reacted in the same or
similar way. This is a question for the jury to decide. It replaces the
reasonable man test which existed under the law of provocation which
attracted widespread criticism and was subject to much conflicting
interpretation in the courts culminating in the landmark case of Attorney
General for Jersey v Holley [2005] 3 WLR 29 Case summary. Reference to
sex and age represents the position with regards to provocation established
inDPP v Camplin [1978] AC 705 Case summary.

Problems with the reasonable man test related to the characteristics
which could be attributed to the reasonable man. S.54(1)(C) makes
explicit reference to just age and sex however, characteristics may
be relevant when assessing the circumstances of the defendant
although under s.54(3) circumstances which relate to the
defendant's general capacity to exercise tolerance and self-restraint
are to be disregarded. According to R v Clinton [2012] EWCA Crim
2Case summary, sexual infidelity may be considered when looking
at the circumstances under s.54(1)(c) in an appropriate case.

The defence of provocation required some degree of proportionality
test in that the jury were required to assess the gravity of the
provocation in deciding if a reasonable man would have done as the
defendant did. The new defence of loss of control does not have
such a balancing exercise. The gravity of the provocation, or trigger
event, is assessed at stage two and must meet the specified
thresholds of either fear of serious violence (s.55(3), extremely
graveor seriously wronged (s.55(4). There is no requirement that
this is weighed against the conduct of the defendant. Also rather
than the jury assessing whether the provocation would have made
a reasonable man do as the defendant did, the jury are required to
consider if a relevant person might have reacted in the same or
similar way. The third element of the defence, is thus perhaps more
generous to defendants.

The defence of consent in criminal law

The defence of consent in criminal law may operate to defeat an
element of the actus reus of a crime and thus render the action
lawful as oppose to unlawful. For example the offence ofbattery
requires the application of 'unlawful' physical force, where
the person consents to being touched the application of force is
'lawful'. The defence of consent does not apply to all crimes.
Indeed it can never be used for murder. In relation to theft, the
courts have held that an appropriation may take place
notwithstanding the consent of the owner of the property.
SeeLawrence v MPC [1972] AC 626 Case summary, DPP
v Gomez [1993] AC 442 Case summary. However, the issue
of consent may demonstrate that the defendant is not dishonest. In
some crimes, consent will absolve the defendant of criminal liability.
For example rape, assault and battery. In other crimes such
as ABH, GBH and wounding a restrictive approach is taken with
regards to consent. The defendant's belief in consent is relevant to
the mens rea of crimes such as theft, criminal damage and rape.
However, the mens rea element is not concerned with whether or
not the victim in fact consented, but whether the defendant
honestly believed the victim consented. There is no requirement

that the belief is reasonably held (DPP v Morgan [1976] AC
182 Case summary).
Effective consent
In order to constitute valid consent absolving the defendant from
criminal liability the consent must be:


Positive



Genuine

Positive
Consent is positive, it is not a matter of the victim not objecting or
saying no. Consent differs from submission:
R v Olugboja [1982] QB 320

Case summary

Consent may be express or implied:
Collins v Wilcock [1984] 3 All ER 374 Case summary
Donnelly v Jackman [1970] 1 All E.R. 987 Case summary
Genuine
The consent must be genuine. This consists of two requirements:
1.

The person giving consent must comprehend the nature of the
act to which they are consenting

2.

The consent must not be vitiated by fraud

1. Comprehend the nature of the act
Children
Burrell v Harmer [1967] Crim LR 169

Case summary

Where there is no statutory prohibition from children giving consent,
they may nevertheless lack capacity to give consent if they are not
capable of comprehending the nature of the act. The Gillick
competence test and Fraser Guidelines are used to establish
whether a particular child is capable of giving consent for a
particular action:
Gillick v West Norfolk and Wisbeck AHA [1986] AC 112 Case
summary
Adults
Adults may lack the mental capacity to appreciate the nature of
what they are consenting to. There is a presumption of capacity
under the Mental Capacity Act 2005. However, a person may be
found to lack capacity if at the material time they are unable to
make a decision in relation to the matter because of a temporary or
permanent impairment or a disturbance in the functioning of the
mind or brain.
2. Consent vitiated by fraud
Fraud will only vitiate consent where it relates to either:
i) The identity of the person or
ii)The nature and quality of the act
i) The identity of the person

Fraud as to the identity of the person will vitiate consent:
R v Elbekkay [1995] Crim LR 163 Case summary
It must be the identity of the person, not their attributes:
R v Richardson [1998] 2 Cr App 200

Case summary

Fraud as to qualifications may relate to the nature and quality of the
act and therefore vitiate consent.
R v Tabassum [2000] 2 Cr App R 328 Case summary

ii) The nature and quality of the act
Originally a restrictive approach was taken in relation fraud as to
the nature and quality of the act:
R v Clarence (1889) 22 QB 23 Case summary

The courts would only recognise that fraud vitiated consent in
extreme cases:
R v Flattery (1877) 2 QBD 410 Case summary
R v Williams [1923] 1 KB 340

Case summary

A more relaxed approach has been evident in recent years
R v Tabassum [2000] 2 Cr App R 328 Case summary

R v Dica [2004] 3 ALL ER 593 Case summary
R v Konzani [2005] EWCA Crim 706 Case summary
However, a restrictive approach still appears to be present in relation to rape
cases:

R v Dica [2004] 3 ALL ER 593 Case summary
R v Jheeta [2007] EWCA Crim 1699 Case summary
R v Linekar [1995] 2 CR App R 49 Case summary

Consent in Non-Fatal Offences Against the Person
As a matter of public policy, generally a person can not consent to
being harmed. Thus if two people willingly engage in a fist fight,
their consent to being harmed (at a level greater than assault and
battery) by their opponent will not be recognised in law. However,
there are some exceptions to this as stated in:
A-G ref no 6 of 1980 [1981] QB 715 Case Summary
Excluded categories where consent will be valid include:
1. Properly conducted games and sports
R v Coney (1882) 8 QBD 534 Case summary
However not where the aggressor acts outside the rules:

R v Billinghurst [1978] Crim LR 553 Case summary

2. Reasonable surgical interference
A medical professional that treats a patient without consent may incur
criminal liability
3. Cosmetic enhancements including tattoos, branding and piercings
R v Wilson [1996] Crim LR 573

Case summary

4. Horseplay -consent may be implied
R v Jones [1987] Crim LR 123

Case summary

R v Aitken [1992] 1 WLR 1006

Case summary

Consent to being harmed for sexual pleasure will not be valid:

R v Brown [1993] 2 All ER 75 Case summary

Defence of Duress
There exist two defences of duress: duress by
threats and duress of circumstances.Duress of
circumstances is the most recent development and
is closely linked to duress by threats and
the defence of necessity. Duress by threat and
duress of circumstances are largely governed by
the same criteria thus many of the cases are
authority for either type of duress. Where the
defence of duress is successfully pleaded it
absolves the defendant of all criminal liability. The

rationale behind the defence of duress is that
whilst the defendant clearly has the mens rea of
the crime, in committing the crime, they are acting
out of compulsion and are therefore not exercising
freedom of choice. In this respect the defence of
duress differs from most defences which seek to
demonstrate the defendant lacked the mens
rea for example,intoxication, insanityand mistake.
The defence of duress also differs from the
defences of self-defence and prevention
of
crime which perhaps provide a justification for
committing a crime. Duress operates to provide an
excuse for criminal behaviour. In this respect
thedefence of duress has often been described as a
concession to human frailty. Whilst thedefence of
duress is a general defence, there are some limits
on its application. In particular the defence of
duress cannot be raised in crimes of murder,
attempted murder or by those who participate in
killing. Recent case law suggests a narrowing in its
application.
Duress by threat
Duress by threat was defined in A-G v Whelan [1993] IEHC 1 Case
summary as being available when the accused was told to commit
an offence and was subject to:

“Threats of immediate death or serious personal violence so great
as to overbear the ordinary powers of human resistance.”
It is for the jury to decide whether the threat was sufficiently
serious to warrant the defence of duress which will be balanced
against the seriousness of the offence. The elements of the defence
were more recently stated by Lord Bingham in the House of Lords
decision of R v Hasan [2005] 2 WLR 709:
R v Hasan [2005] 2 WLR 709

Case summary

Elements of the defence of duress by threat:
Specified crime
Immediate threat
Threat of death or serious injury
Threat of violence must be to the defendant or a person for whom
he has responsibility
Threat must be so great as to overbear the ordinary powers of
human resistance.
Specified crime
The threat must be accompanied by an order to commit a specified
crime. It is not sufficient that the defendant has felt the need to
commit a crime to meet a demand for money.
R v Cole 1994 Crim LR 582 Case summary
Threat of immediate death or serious injury
The immediacy requirement is not strictly applied:

R v Hudson & Taylor [1971] 2 QB 202 Case
summary

See also (in relation to duress of circumstances):
R v Abdul–Hussein [1999] Crim LR 570
summary

Case

However, statements in R v Hasan suggest that the
courts should be more restrictive particularly
where there is opportunity of evasive action and or
obtaining police protection:
R v Hasan [2005] 2 WLR 709

Case summary

Threat of death or serious injury
Threats to reveal sensitive information alone are
insufficient to raise the defence, but may be taken
into account if accompanied by threats of death or
serious personal violence:
R v Valderamma-Vega [1985] Crim LR 220 Case
summary

Persons for whom the defendant has responsibility

The threat of violence must be to the defendant or a person for
whom he has responsibility or persons for whom the situation
makes him responsible:
R v Shayler [2001] EWCA Crim 1977

Case summary

This includes threats against family members:
R v Martin [1989] 88 Cr App R 343

Case summary

Passengers in a car:
R v Conway [1989] QB 290

Case summary

Whilst threatened suicide of another may be sufficient (R
v Martin [1989] 88 Cr App R 343 Case summary) a person can not
rely on their own suicidal tendency to constitute the threat of death:

R v Rodger & Rose [1998] 1 CAR 143
summary

Case

The threat must be so great as to overbear the ordinary
powers of human resistance.
The test established in R v Graham applies to determine whether
the threat was so great as to overbear the ordinary powers of
human resistance:
R v Graham [1982] 1 WLR 294 Case summary

The elements of the Graham test:

The defendant must have a reasonable
belief in the circumstances;
2. This belief must have lead the defendant to
have a good cause to fear death or serious injury
would result if he did not comply; and
3. A sober person of reasonable firmness,
sharing the characteristics of the defendant, might
have acted as the defendant did.
1.

All three elements are objective in nature.
The characteristics that may be taken into account were considered
in:

R v Bowen [1997] 1 WLR 372

Case summary

R v Flatt [1996] Crim LR 576

Case summary

Limits on the defence
The defence of duress is not available:
1. For crimes of murder, attempted murder or for an accessory to
murder
2. For crimes of treason
3. Where the defendant voluntarily, with knowledge of its
nature, joined a violent criminal gang
4. Where the defendant voluntarily joined a terrorist organisation
5. Where the defendant became indebted to drug dealers
6. Where the defendant could reasonably have taken evasive action

Murder related offences
The defence of duress is not available to murder:

Abbott v The Queen 1977 AC 755
Originally the defence
accessory to murder:

was

Case summary
allowed

for

an

DPP v NI v Lynch [1975] AC 653 Case summary

However, this was overruled in Howe &
Bannister which also stated obiter that the defence
of duress should not be available to attempted
murder:
Howe & Bannister [1987] 2 WLR 568 Case summary
The obiter from R v Howe & Bannister was followed by the Court of
Appeal in R v Gottswhich held that the defence of duress was not
available to attempted murder:
R v Gotts [1992] 2 AC 412

Case summary

Voluntarily joining a criminal organisation
Where the defendant voluntarily, with knowledge
of its nature, joined a violent criminal gang they
will be denied the defence:
R v Sharp 85 Cr App R 212

Case summary

The defence may be allowed where the criminal organisation is not
known to be violent:
R v Shepherd (1988) 86 Cr App R 47 Case summary

Voluntary joining a terrorist organisation
A person who voluntarily joined a terrorist organisation will not be
allowed the defence where they are subjected to threats:
R v Fitzpatrick [1977] NILR 20

Case summary

Indebtedness to drug dealers
Where the defendant became indebted to drug dealers and is
subjected to threats if they do not commit an offence, they are
taken to have put themself in the position and the defence of duress
is denied:
R v Ali [1995] Crim LR 303

Case summary

R v Flatt [1996] Crim LR 576 Case summary

It was considered that the defendant must foresee the type of
offence that he may be coerced into committing:
R v Baker and Ward [1999] 2 Cr App R 335

Case summary

However, this point was overruled by the House of Lords in R v
Hasan:
R v Hasan [2005] 2 WLR 709

Case summary

Where the defendant could reasonably have taken evasive
action

If the defendant could reasonably have obtained police protection or
acted in some way to avoid the crime they would be expected to
take that action rather than commit the crime. The defence of
duress is therefore denied in these situations. This matter was
discussed in:

R v Hudson & Taylor [1971] 2 QB 202 Case
summary
R v Abdul–Hussein [1999] Crim LR 570 Case
summary
R v Hasan [2005] 2 WLR 709

Case summary

Duress of circumstances

Duress of circumstances differs from duress by
threat in that the circumstances dictate the crime
rather than a person. It may well be a person that
creates the circumstances, but there is no
requirement that a person specifies that a crime
must be committed. Although there must still be a
sufficient nexus between the threat and the crime:
R v Cole 1994 Crim LR 582 Case summary
The defence of duress of circumstances grew out of the inflexibility
afforded in thedefence of necessity. It is often referred to as
necessity by another name. It will often allow a defence where
the defence of necessity would deny one. The defence of duress of
circumstances came about largely as a mistake in the case of R v
Willer in which the defendant raised the defence of necessity. The
Court of Appeal allowed his appeal and stated that he should have
used the defence of duress. However, he had not been told to
commit a crime, the threat came from the circumstances:
R v Willer (1986) 83 Cr App R 225

Case summary

This then set a precedent which was followed in R
v Conway where the Court of Appeal noted that
there was no threat in R v Willer but recognised
the existence of the new defence and named it
duress of circumstances:
R v Conway [1989] QB 290 Case summary

The later case of R v Martin affirmed the defence
and held that it was governed by the same rules as
duress by threat:
R v Martin [1989] 88 Cr App R 343 Case summary

R v Pommell established that it is available to all
crimes except murder, attempted murder and
those who assist murder:

Pommell [1995] 2 Cr App R 607 Case summary

The circumstances are judged as the defendant
believed them to be:
R v Cairns [1999] EWCA Crim 468

Case summary

Other examples of cases involving duress of
circumstances:

R v Abdul–Hussein [1999] Crim LR 570 Case
summary

R v Shayler [2001] EWCA Crim 1977 Case summary

R v Quayle [2005] 1 WLR 3642

Case summary

Defence of Mistake
Where the defendant acts under a mistaken belief of the
circumstances they may be afforded the defence of
mistake. Where a defendant acts under such a mistake, the
mistake prevents them forming the mens rea of the crime and
thus mistake is not really a defence as such, but relates to the
absence of the elements of establishing liability. The defence of
mistake was first recognised in R v Tolson (1889) 23 QBD 168 but
has developed since then. Often the defence of mistake is
complicated by being combined with other defences such as
intoxication or self-defence (or both).
Initially a defence would be allowed if the mistake was both honest
and reasonably held:
R v Tolson (1889) 23 QBD 168 Case summary
A mistake as to law will not generally suffice, for the defence of
mistake, since ignorance of the law is no excuse (Ignorantia juris
non excusat)
R v Lee [2000] EWCA Crim 53

Case summary

Although a mistake of civil law may be sufficient to find a defence of
mistake:

R v Smith [1974] QB 354

Case summary

A mistake of fact will suffice provided the mistake was such as to
prevent the defendant forming the mens rea of the offence. Whilst
initially the mistake was required to be both honest and reasonably
held, in DPP v Morgan the House of Lords held that the mistake
need only be honest. There was no requirement that it was
reasonable for the defendant to make the mistake:
DPP v Morgan [1976] A.C. 182 Case summary
The defence of mistake in relation to public/private defence
The defence of mistake may be raised in conjunction with selfdefence and prevention of crime where for example the defendant
mistakenly believed he was under attack or using reasonable force
in the prevention of crime. The same principle applies that the
mistake must be honest, but need not be reasonably held:

R v Gladstone Williams (1984) 78 Cr App R 276 Case summary
Beckford [1987] 3 WLR 611 Case summary
Implications where the mistake is induced by intoxication
Where the mistake is induced by voluntary intoxication, and the
crime is one of basic intent, the defendant is not allowed the
defence of mistake:

R v Fotheringham (1989) 88 Cr App R 206 Case summary
R v O'Grady [1987] QB 995 Case summary
R v Hatton [2006] 1 Cr App R 16 Case summary
If, however, the crime is criminal damage and the defendant is
relying on the special defence in S.5(2) Criminal Damage Act, a
mistake induced by voluntary intoxication will not bar the
application of the defence.
Jaggard v Dickinson [1981] 1 QB 527 Case summary

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