Criminal all cards

Causation

Factual: AR and MR must happen at the same time and correspond to each other

1. Continuing act [Fagan v MPC]

2. one series of acts [Thabo Meli]

3. duty to act [Miller] 1983

4. “But for” causation [R v White] 1910

Legal: Need not be the sole cause, but must be a cause [Benge] 

1. Even if D holds the reins, he could not have saved the child. He does not cause the death of  the child [Dalloway]

2. Must be more than merely de minimis [Smith] 1959

3. Must be (in some sense) culpable [Hughes] 

Intervening Act: Regardless of whether there is an intervening act, as long as D’s original act still making an  ongoing contribution, he is guilty of the offence as it is still a cause

1. Free, deliberate and informed act, regardless of foreseeability [Kennedy (No 2)]

   1. Not a free act if it is done in self-defence [Pagett]

   2. V is not informed of the dangerous situation [Field]

2. Unforeseeable intervention breaks the chain of causation

   1. An intervening natural event is a novus actus only if its occurrence is something  extraordinary [Empress Car]

   2. Foreseeable and innocent intervention does not break the chain of causation [Michael]

   3. If V’s reaction is within the range of responses expected (reasonably foreseeable), D remains  liable. However, if V’s reaction is daft and disproportionate to the threat, it becomes a voluntary intervening act [Williams]

3. Medical intervention may break the chain of causation, The original harm inflicted by D must no longer be contributing to the occurrence of the eventual result, conduct is palpably wrong [Jordan]

   1. Only when the negligent treatment was so independent from D’s act, and in itself so potent  in causing death, it will be regarded as an intervening act [Cheshire]

   2.  Switching off life-support is not an intervening act [Malcherek]

4. Omission cannot be a novus actus → “thin skull rule,” defendant’s actions are not protected by V’s disability [Blaue]

Omission

General principle: no liability for omissions unless a specific legal duty to act exists

Specific legal duty to act arise when:

1. D is in a special relationship with the victim [R v Stone and Dobinson]  

2. D caused the harm [Miller] 1983

3. D contributed to the harm [Evans]  

4. D is in a contract to act [Pittwood]  

5. Parents and children [Gibbins]  

6. Duty of care not to injure anyone whom we could reasonably foresee injuring [Winter]

For omission to be a cause, it needs to be a but for cause beyond reasonable doubt 

1. Prove that had D intervene, he would have saved the victim, not might have [Broughton]

Intention

1. Trial judge should avoid defining “intention” and rely on jury’s common sense [Moloney] 

2. If the result is a virtual certainty which D realised, jury have the discretion to find intention or not to find intention [Woollin]  

3. If D foresees an outcome, and indeed welcome it, but that outcome plays no part in her  decision to act, she does not intend it [Moloney]  

• Focus on aim or purpose, not motive and desire

Recklessnes

1. They are subjectively aware of a risk that a particular kind of harm might occur, they go on to deliberately take that risk anyway [Cunningham]

2. If D deliberately closed his mind to the obvious, he is being reckless [Parker]

3. Caldwell recklessness is abolished by R v G, now subjective awareness and unreasonableness for criminal damage

   1. Foreseen the harm, and gone on to take the risk unreasonably

Intoxication

If D have the required MR notwithstanding the intoxication, D is guilty of the offence  

1. A drunken intent is nevertheless an intent [Sheehan]  

2. If D has MR, notwithstanding the involuntary intoxication, D is liable [Kingston] 

3. If D is involuntarily intoxicated and does not have MR, D is acquitted  

If D is voluntarily intoxicated and does not have MR, he is liable for basic intent crime (as  recklessness) and not specific intent crime  

1. An underestimation of alcohol content and its effect is no defence [Allen] 

2. If D is voluntarily intoxicated, it is treated as if he is reckless, suffices the MR for basic intent  crimes [DPP v Majewski]

3. Had D been sober, would he foresee that his actions might cause injury? [Richardson] 

4. If D did not use a prescribed medicine according to prescription or if he knows the effect of  the medicine, he is considered as voluntarily intoxicated. However, if he does not know the  effect of the medicine, he is involuntarily intoxicated [Hardie] 

Homicide

1. Murder  

2. Voluntary manslaughter (have AR and MR of murder, but partial defence) 

3. Involuntary manslaughter (have AR of murder, but no MR)

Murder

1. AR of murder: [unlawfully] causing the death of a person in being under the King’s Peace [Lord Coke]  

2. MR of murder: intention to kill or cause grievous bodily harm [Cunningham 1982] 

   Only and always talk about murder if there is a dead body 

3. Establish cause of death

   1. If death is an incidental consequence and the primary purpose of the doctor to administer  medicine is to relieve pain, he does not cause the death. However, if his primary purpose is  to end life, he cause the death [R v Cox]

4. Check if the victim is a person in being  

   1. Foetus is never considered a person [AG Reference (No. 3 of 1994)]  

      1. If D intends to destroy a foetus in the womb, he lacks MR for murder 

      2. If D inflicts a pre-birth injury intending to cause the child to die after the birth or to be born with a serious injury, he has MR for murder

   2.  Brain-dead is considered death as a matter of law → ending life-support for brain-dead is  not murder. However, persistent vegetative state is still a person in being [Bland]

      1. It is an act of omission. In this case, doctor has a duty to act in patient’s best interest.  However, since the patient is in persistent vegetative state and shows no sign of  recovery, prolonging life is not in the patient’s best interest → not murder by  withhold life-extending treatment  

5.  Check if the victim is under the King’s Peace

   1. Applies to victim, not killer  [R v Adebolajo and Adebowale]  

6. Transferred malice/MR

   1. If D intended to kill A but in doing so caused B’s death, D is liable for murder of B [Latimer] 

   2. MR must be for the same offence [Pembliton]

Voluntary Manslaughter – Loss of Control

Always refer to sections 54 and 55 of the Coroners and Justice Act

1. Establish if D had lost self-control [Section 54(1)(a) of CJA]  

   1. Loss of the ability to act in accordance with considered  judgment or a loss of normal powers of reasoning [Jewell]  

   2. Frenzied attack does not necessarily equate to lost self-control [Dawson 2021] 

   3. Evidence of premeditation and appearence of planning may not necessarily be incompatible with a finding  of loss of self-control → loss of control need not be sudden [Thornton] [Section 54(2) of CJA]

   4. Loss of control cannot be due to intoxication [Asmelash] 

2. Establish if the loss of self-control had a qualifying trigger [Section 54(1)(b) of CJA]

   1. Fear of serious violence from V against D or another identified person [Section 55(3) of CJA] 

   2. Attributable to things done or said (or both) which  

      1. Constituted circumstances of an extremely grave character, and [Section 55(4)(a)] 

         1. Unusual, not part of normal trial and disappointment in life [Dowes]  

      2. Caused D to have a justifiable sense of being seriously wronged [Section 55(4)(b)] 

   3. If it was caused by a thing which D incited for the purpose of providing an excuse, it is not a  qualifying trigger [Section 55(6)(a) and (b) of CJA]  

      1. Mere fact of behaving badly and provoking trouble is not sufficient [Dawes] Ending  relationship is not extremely grave 

   4. Sexual infidelity is not a qualifying trigger [Section 55(6)(c) of CJA]  

      1. But can be part of the circumstances to contextualise the qualifying trigger [Clinton]

3. 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 [Section 54(1)(c) of CJA]  

4. Prosecution has to prove beyond reasonable doubt [Section 54(5) of CJA]

Voluntary Manslaughter - Diminished Responsibility

AR: [unlawfully] causing the death of a person in being under the King’s Peace [Lord Coke] 

MR: intention to kill or cause grievous bodily harm [Cunningham 1982]

Always refer to section 2 of the Homicide Act

1. Abnormality of mental functioning which:

   1. Arose from a recognised medical condition, [Section 2(1)(a) of Homicide Act] 

   2. Substantially impaired D’s ability to understand the nature of his conduct; form a rational  judgment; and/or to exercise self-control, and [Section 2(1)(b)]  

      1. Substantial means less than total and more than trivial [Squelch] 

   3. Provides an explanation for D’s acts and omissions in doing or being a party to the killing  [Section 2(1)(c)]  

      1. Provides an explanation if it causes, or is a significant contributory factor in causing,  D to carry out that conduct [Section 2(1B)]  

   4. Abnormality of mental functioning normally requires expert evidence [Brennan]

   5.  ICD-11 and DSM-5 are merely indicative and not conclusive regarding what in law makes for  a recognised medical condition [Dowds] voluntary acute intoxication is not a recognised  medical condition capable to rely on  

   6. Have to differentiate which is the main influence, medical condition or voluntary intoxication [Foy]

Involuntary Manslaughter – Constructive/UDAM

1. AR (Church [1966]): A positive unlawful act, which a sober and reasonable bystander would recognise as exposing the victim to the risk of some harm, that causes death.

2. MR (Newbury and Jones [1976]): Intention to do the unlawful act itself — nothing more is required.

   1. Must have a criminally unlawful act (base offence) that requires subjective MR (more than  negligence) [Andrews v DPP]  

   2. All elements (AR + MR) of base offence is satisfied with no valid defence [Lamb] 

   3. Omission is insufficient [Lowe]

3. Unnecessary to prove that D foresee the harm [DPP v Newsbury and Jones]  

4. Only considers all the knowledge D knows, and no more [Dawson 1985] 

5. establishes that an act can become dangerous during its commission[Watson] 

6. Does not matter that the harm risked was not harm of the kind that occurred [JM and SM] 

Involuntary Manslaughter – Gross Negligence

1. D has a duty of care → breach the duty of care → breach caused death → risk of death is serious and obvious at the time of breach to a reasonable person (AR) → breach of duty was so gross as to  justify a criminal conviction (MR) [Adomako]  

   1. D’s action fell below the standard expected of a reasonable person, the specific condition,  experience and age of the defendant do not matter [Adomako]  

   2. Conduct must create a serious and obvious risk of death. If D has special skills/knowledge of  a danger, actions should be judged against a reasonable person with that attribute [Kuddus] In this case, D is a chef  

   3. An obvious risk is a present risk which is clear and unambiguous, not one which might  become apparent on further investigation [Rose]  

   4. Need to prove causation in a sense that had D intervene, he would have saved the victim,  not might have [Broughton]  

   5. Prove of state of mind is not necessary for conviction → risk of death need not be  foreseeable by the defendant [AG Reference (No.2 of 1999)]  

   6. Negligence must be so bad in all the circumstances as to amount to a criminal act or  omission. The negligence went beyond a mere matter of compensation between the  subjects and showed such disregard for the life and safety of others [Misra]  

Involuntary Manslaughter – Reckless Manslaughter

D killed V while subjectively foresees risk of death or grievous bodily harm, but does not  meet Woollin’s test for a conviction of murder [Lidar]

Offences Against a Person

1. Common law assault  

2. Common law battery  

3. Section 47 OAPA: assault occasioning bodily harm (difference in AR)  

4. Section 20 OAPA: malicious wounding (difference in AR and MR)  

5. Section 18 OAPA: wounding with intent (difference in MR) 

Assault

1. AR: D caused V to apprehend imminent unlawful force [Collins v Wilcock]  

   1. Words [Constanza] and silence [R v Ireland] could constitute assault  

   2. Can be conditional, but not if threat excludes imminent possibility [Tuberville v Savage] 

   3. V has to apprehend it [Lamb]  

2. MR: D intended or was reckless that V would apprehend imminent unlawful force [Logdon v DPP]  

   1. Need to show that D indeed foresaw the apprehension of imminent unlawful force, not that  he should or could have foreseen it 

Battery

1. AR: D touched or applied force to V [Rolfe]  

   1. Touching need not be hostile, rude or aggressive [Faulkener v Talbot]  

   2. Can be committed through an act of omission [DPP v Santana-Bermudez] 

   3. Physical contact can be indirect [DPP v K]  

2. MR: D intended or was reckless as to touching or applying force to V [Venna]

   1. Everyday touching is excluded [Collins v Wilcock]

Section 47 OAPA: Assault Occasioning Bodily Harm

1. AR: D commit an assault or battery which causes V to suffer actual bodily harm [R v Miller] 1954

   1. Actual bodily harm includes any hurt or injury interfere with health and comfort of V 

   2. Harm need not be permanent, no need to show pain [DPP v Smith]  

   3. Psychological injuries can be included [Chan Fook] 

2. MR: D intend or was reckless as to the assault or battery [R v Roberts]  

   1. No need to show D intended or foresaw actual bodily harm  

3. AR and MR must be of the same offence and corresponded. If established that assault cause ABH,  MR must be that of assault, cannot be that of battery 

Section 20 OAPA: Malicious Wounding

1. AR: D unlawfully wounded or inflicted grievous bodily harm to V [Section 20 OAPA]  

   1. Wound is a break in the continuity of the whole of the skin [Eisenhower]  

   2. Impact of the harm on the particular victim should be taken into account [Bollom] 

   3. Very serious psychological harm can be included; inflict = cause [Burstow]

2. MR: D foresaw that the victim might suffer some harm [Savage and Parmenter]  

   1. Enough to show that D foresaw some harm to V, albeit of a minor one [Mowatt]

Section 18 OAPA: Wounding with Intent

1. AR: D unlawfully wounded or caused grievous bodily harm to V [Section 18 OAPA]  

2. MR: D either intended to cause grievous bodily harm, or intended to resist or prevent the lawful  apprehension or detention of any person [Section 18 OAPA]  

   1. When the defendant is resisting lawful apprehension, he was Cunningham reckless, probably  as to causing grievous bodily harm (but possibly as to causing just some harm) 

   2. No defence that the defendant thought the arrest was unlawful  

Defences – Consent

1. For consent to be effective

   1. V must have the mental capacity and knowledge to consent [Konzani]

      1. V can only consent to something that he has knowledge

   2. There must be an absence of fraud and duress

      1. Fraud about identity vitiate consent, but fraud about attributes or qualifications do not vitiate consent unless it is fundamental enough [Melin]

      2. Fraud to the quality of an act vitiate consent [Tabassum]

2. General principle: V cannot consent to ABH, GBH and wounding  

   1. Consent to serious harm for sexual gratification is not a defence [Section 71 of Domestic  Abuse Act 2021] [Brown]  

3. Exceptions where consent provide a defence (not a closed list)  

   1. Sports consent → only applies to organised and regulated sports [Barnes]  

   2. Dangerous exhibitions and bravado  

   3. Rough and undisciplined horseplay [Aitken]  

   4. Surgery. However, does not include body modification [BM]  

   5. Tattooing and body piercing, includes action that is analogous [Wilson (Alan)]  

   6. Infectious intimate relations [Dica] 

Sexual Offences Act 2003

1. Section 1: rape  

   1. AR: penetrates the vagina, anus or mouth of B with his penis [Section 1(1)(a)] without B’s  consent [Section 1(1)(b)]  

   2. MR: The defendant (A) intends the penetration and does not reasonably believe that B consents [R v Gabbai]

   3. Penetration is a continuing act from entry to withdrawal [Section 79(2

   4. Penis includes a part that is surgically constructed, in particular, through gender  reassignment surgery [Section 79(3)]  

   5. Vagina includes vulva [Section 79(9)]  

   6. There is no need to be sure of whether it is to vagina or anus [K]

2. Section 2: assault by penetration 

   1. AR: penetrates the vagina or anus of B with a part of his body or anything else [Section  2(1)(a)], the penetration is sexual [Section 2(1)(b)] without B’s consent [Section 2(1)(c)] 

   2. Penetration is a continuing act from entry to withdrawal [Section 79(2

   3. Vagina includes vulva [Section 79(9)]  

   4. There is no need to be sure of whether it is to vagina or anus [K]

3. Section 3: sexual assault  

   1. AR: touches B [Section 3(1)(a)], where the touching is sexual [Section 3(1)(b)] without B’s  consent [Section 3(1)(c)]  

   2. Touching includes touching with any part of the body, with anything else, through anything,  and in particular includes touching amounting to penetration [Section 79(8)] 

   3. Touching of clothing might be sexual depending on context [H] 

   4. Can be conducted by omission [Speck]  

4. Section 4: causing a person to engage in sexual activity without consent 

   1. AR: causes B to engage in an activity [Section 4(1)(a)], where the activity is sexual [Section  4(1)(b)] without B’s consent [Section 4(1)(c)] 

5. MR of sexual offences  

   1. Intentionally and does not reasonably believe that B consents  

   2. Reasonableness take into account of all the circumstances, including any steps A has taken  to ascertain whether B consents  

   3. Must be judged by objective standards of reasonableness and not by taking into account a mental disorder which induced a belief which could not reasonably arise without it [B]

6. Section 78: determination of “sexual”  

   1. Sexual if a reasonable person would consider that 

      1. Whatever its circumstances or any person’s purpose in relation to it, it is because of  its nature sexual, or [Section 78(a)]  

      2. Because of its nature it may be sexual and because of its circumstances or the  purpose of any person in relation to it (or both) it is sexual [Section 78(b)]

   2. Where the nature of the act cannot be sexual, it is not made sexual by a person having a  secret fetish [Court]  

   3. No requirement that D intended or recognised that it is sexual [AG Reference (No 1 of 2020)]

Issue of Consent

Starts with section 76 → section 75 → section 74

1. A person consents if he agrees by choice, and has the freedom and capacity to make that choice  [Section 74]  

   1. Less direct coercion or pressure may vitiate consent [Kirk]  

   2. Unwilling submission is not a consent, but reluctant consent may be [Olugboja

   3. Mental illness undermines capacity to consent [C]  

   4. Consent will be lacking if alcohol has deprived B of the capacity to make a choice [Bree] 

   5. Deception as to the risks or consequences/broad circumstances of the sexual act does not  vitiate consent as it is not sufficiently closely connected to the act of sexual intercourse

      1. Fertility [Lawrence]  

      2. Ideological beliefs [Monica v DPP]  

   6. Deception as to the physical performance of the sexual act vitiates consent 

      1. Withdrawal before ejaculation [F]  

      2. Wearing of condom [Assange]  

      3. Gender/biological sex [McNally]  

2. Evidential presumptions about consent [Section 75]  

   1. Can be rebutted by adducing sufficient evidence otherwise [Section 75(1)] 

3. Conclusive presumptions about consent [Section 76]  

   1. D intentionally deceived V as to the nature [Williams] or purpose [Devonald] of the relevant  act [Section 76(2)(a)] 

      1. Sex with prostitute with no intention of paying does not vitiate consent [Linekar] 

      2. Non-disclosure of HIV status is not a deception about the nature of the act [B] 

   2. D intentionally induced V to consent to the relevant act by impersonating a person known  personally to V [Section 76(2)(b)]  

   3. Cannot be rebutted [Section 76(1)]

Insanity

1. To establish insanity, it must be clearly proved that, at the time of the committing of the act, the  party accused was labouring under such a defect of reason, from disease of the mind, as not to  know the nature and quality of the act he was doing; or, if he did know it, that he did not know he  was doing what was wrong [M’Naghten] 

   1. Must be something internal, not from intoxication [Hennessy]  

   2. Apply to strict liability offences [Loake]  

   3. D must establish both that he did not know his act was unlawful, and he did not know that  his act was “morally” wrong, by the standards of reasonable ordinary people [Keal]

   4. If the drug is no longer chemically active in D, then any mental disorder that D have is a  defect of reason arising from a disease of the mind, notwithstanding that the condition  would not have arisen but for previous drinking. However, if the chemical is still active, it is  not a disease of the mind [Coley] 

   5. “Wrong” means contrary to law [Windle]  

   6. “Nature and quality of the act” refers to the physical nature and quality of the act and not to  its moral or legal quality [Codere]  

   7. Defect of reason was taken to imply the cessation of a relative deliberative faculty for  however brief a period of time [Clarke]  

   8. Disease of the mind refers to any internal disorder which affected the faculties of memory,  reason, or understanding, need not be permanent [Sullivan]  

2. Special verdict of “not guilty by reason of insanity” [Section 1 Criminal Procedure (Insanity) Act]

Automatism

1. Automatism can be described as a total destruction of voluntary control that is caused by  an external factor, and D is not responsible for his state of mind [Bratty]  

2. Driving has to be amount to a state of unconsciousness [Hill v Baxter]  

   1. Driving without “awareness” was not enough [C]  

3. Requires total destruction of voluntary control on D’s part, impaired, reduced or partial  control is not enough [AG Reference (No 2 of 1992)]  

4. Must be something external [Quick]  

5. Loss of voluntary control need not be permanent, can be temporary [Sullivan] 

6. If D does in fact form an intention to commit a crime, then however clouded and confused  D’s awareness may have been, automatism is excluded [Kingston]  

7. Automatism cannot be caused by voluntary intoxication [Lipman]  

8. For involuntary intoxication, D can rely on it unless he actually foresaw the risk of his  behaviour becoming aggressive, unpredictable and uncontrolled with the result that he may cause some injury to others [Bailey]

Self Defence

1. To establish self-defence [Collins]

   1. Whether the defendant genuinely believed that it was necessary to use force 

   2. Whether the nature and degree of force used was reasonably in the circumstances

   3. On the basis that what was reasonable had to be tested against the circumstances as the defendant genuinely, even if mistakenly, believed them to be 

2. A person may use such force as is reasonable in the circumstances in the prevention of crime, or in  effecting or assisting in the lawful arrest [Section 3(1) Criminal Law Act]

3. Establishment of D honestly believed it is necessary to use force 

   1. Subjective assessment, taking account facts as D believed them to be [Section 76(3)] 

   2. Belief must be honest/genuine, need not be reasonable [Section 76(4)] [Beckford] 

   3. Facts can be mistaken [Gladstone Williams]  

   4. Mistaken facts cannot be through voluntary intoxication [Hatton] [Section 76(5)] 

   5. Pre-emptive force is included [Devlin v Armstrong]  

   6. No duty to retreat, but a relevant factor [Section 76(6A)] [Field]  

   7. Use of force can be against an innocent third party, but not to the extent of inflicting serious  injury or death [Hichens] 

4. Establishment of D uses a reasonable degree of force

   1. Objective assessment [Owino]  

   2. D not expected to weigh to a nicety degree of force required [Section 76(7)] [Palmer] 

   3. Other than householder case → disproportionate force is unreasonable [Section 76(6)] 

   4. Householder case → grossly disproportionate force is unreasonable [Section 76(5A)]  

      1. Disproportionate force can be both reasonable and unreasonable [Ray]  

      2. Definition of householder case [Section 76(8A) – 76(8F)]  

         1. Only applies to self-defence, not defence of property [Section 76(8A)(a)]  

      3. It is not whether D was in fact a trespasser, but what D believe [Cheeseman]  

   5. Reasonableness of force cannot be judged by reference to insanity [Oye] 

   6. Psychiatric characteristics cannot be brought into consideration, considered diminished  responsibility instead [Martin (Anthony)]  

   7. Reasonableness takes into account of all circumstances [Section 76(8)]  

      1. Includes mistaken state of mind immediately and proximately consequent upon  earlier intoxication (short-term effects triggered by it such as paranoia), even though  at that time no drug is chemically active in his system[Taj]

5. Exclusion: not applicable  

   1. Original aggressor can be acting in self-defence but only when the violence offered by the  victim was so out of proportion that in effect the roles were reversed. However, if D  consciously manipulated V, then self-defence cannot be used [Keane]  

   2. Cannot be used where D acting in retaliation or revenge [Bird]  

   3. When no force is used, there is no self-defence [Bailey]

Duress by threat

1. To establish duress, ask the following [Graham]

   1. Was the defendant, or may he have been, impelled to act as he did because, as a result of  what he reasonably believed A had said or done, he had good cause to fear that if he did  not so act, A would kill him or cause him serious physical injury?  

   2. If so, would a sober person of reasonable firmness sharing the characteristics of D responded by acting as the accused did?  

   3. D’s will to resist has been eroded by voluntary intoxication is irrelevant

2. Establishment of threat 

   1.  Can be by a third party, not the victim [Rodger and Rose]  

   2. Offence committed must be nominated by the person making the threat [Cole]  

      1. Precise details are not necessary, as long as type of offence is specified [Ali]  

   3. Must be a sufficient reason, need not be the sole or dominant reason [Valderrama-Vega]

3. Establishment of reasonable fear of death or serious injury

   1. Threat must be of physical GBH or death directed against D or his immediate family or  someone close to him or person D feels responsible for [Hasan]  

   2. Threat can be of rape as well [Ashley]  

   3. Threat of damage to property will not suffice [DPP for Northern Ireland v Lynch] 

   4. Can be mistaken but must be honest and reasonable [Safi]

4. Establishment of threat being imminent and unavoidable 

   1. Threat must be immediate or almost immediate, with no evasive action available [Hasan] 

   2. Must be present threat [Hudson and Taylor] 

5. Establishment of reasonable person would have done the same

   1.  Expect D to act with steadfastness reasonably expected of ordinary citizens in his situation  [Graham]  

   2. Reasonableness adjust according to characteristics affecting ability to resist threats, such as  age, sex, and recognised mental illness [Bowen] 

      1. Exceptionally timid or vulnerable to threat is irrelevant [Graham]  

      2. Low IQ and self-induced intoxication is irrelevant [Bowen]

6. Exclusions: not applicable

   1. Duress is not a defence for murder, attempted murder and, some forms of treason [Hasan] 

   2. D’s voluntary association with others engaged in criminal activity, foresaw or ought reasonably to have foreseen the risk of future coercion despite no foresight of the specific type of offence being coerced [Hasan]  

Duress of Circumstances

1. Establish duress of circumstances is the same as that in duress of threats [Martin] 

   1. D must reasonably believe there is a threat of death or serious injury

   2. A sober person of reasonable firmness sharing D's characteristics would have responded in the same way

2. Practical confirmation of duress of circumstances [Willer] 

3. Establishment of reasonable fear of death or serious injury  

   1. Threat of GBH or death against D or another person, not a balance of evils defence [Quayle] 

   2. Threat cannot come from D, not a self-induced threat [Rodger and Rose]  

4. Exclusions: not applicable [Hasan]

   1. Does not apply to murder or attempted murder

   2. Voluntary association with criminals who might subject D to compulsion excludes the defence

   3. Prior fault in foreseeing the risk of compulsion excludes the defence

Necessity

1. To establish necessity, three conditions have to be satisfied [Re A]

   1. The act is needed to avoid inevitable and irreparable evil 

   2. No more should be done that is reasonably necessary to achieve the purpose 

   3. The evil inflicted must not be disproportionate to the evil avoided

2.   Cases that are applicable

   1. Intervention is in V’s interests and V is incompetent [Re F]  

   2. Compulsory mental health detention and treatment [Bournewood], but not where V is  autonomous [St George’s v S]

3. Cases that are not applicable  

   1. Hunger or homelessness [LB of Southward v Williams]  

   2. Direct action where legal recourse possible [Jones]  

4. The identifiable harm must be in the near future [Shayler] 

Criminal Damage

1. CDA Section 1(1) cases: Criminal damage 

   1. Deletion of program constitutes damage to circuit card [Cox v Riley] may be  overruled by section 10(5) which concludes that modification of computer’s  contents does not constitute damage unless physical condition is impaired 

   2. Not spitting [A v R], but water-soluble paints sufficient [Hardman]  

   3. Any alteration to the physical nature of the property concerned may amount to  damage [Whitely]  

   4. Damage need not be permanent [Roe v Kingerlee] 

2. Section 10 cases:

   1. Intention or reckless whether the property belongs to another  

      1. D is reckless if she either foresee a risk that the property is not absolutely hers; or  if, she acts without believing that the property belongs to her (i.e. if she has no  belief either way) [B (a minor) v DPP]  

      2. Provided the belief is honestly held, it is irrelevant to consider whether it is mistaken  or justifiable [Smith (David)]  

   2. Reckless as to damage or destruction and reckless as to the property belongs to another are  both subjective recklessness [R v G]  

3. Section 1(2) cases: Aggravated criminal damage and arson

   1. D destroys or damages property belonging to someone, intends or is reckless about  destroying or damaging the property, and intends thereby to endanger the life of another, or  is (at least) reckless whether the life of another will thereby by endangered [Section 1(2)]  

   2. Endangerment of life must be by (or thereby) the damage or destruction [Steer] D was  reckless whether life would be endangered by the bullets, not by the damage to the house

4. Section 5 cases: Without lawful excuse

   1. Consent and defence of property are lawful excuse [Section 5(2)]  

      1. It is sufficient that D believe that he had consent from someone he thought entitled  to give such consent [Denton]  

      2. D must genuinely believe that the owner would have consented, not might or  should have. The belief must be held at the time of the act. The “circumstances”  must directly relate to the damage itself, not broader political or ethical motivations  [AG Reference No 1 of 2023] 

   2. D must subjectively believe that the property belonged to himself or another; that it was in  immediate need of protection; and that conduct was a reasonable means of protecting the  property. D’s conduct must be undertaken in order to protect the property [Section 5(2)(b)]  

      1. Action taken must be objectively seen as capable of protecting property [Hunt] 

      2. Threat to property need not be criminal [Chamberlain v Lindon]  

      3. Belief must be that property has an owner [Cresswell v DPP]  

      4. Belief in the reasonableness of the means is subjective [Jones (Iorwerth) and others] 

   3. Immaterial whether a belief is justified provided it is honestly held [Section 5(3)] 

      1. Even when the genuine belief is due to voluntary intoxication [Jaggard v Dickinson]

Theft

1. AR: appropriates property belonging to another

2. MR: dishonestly, intention to permanently deprive

3. Section 4 cases: property

   1. Includes money and all other property, real or personal, including things in action and other  intangible property [Section 4(1) Theft Act 1968]  

      1. Things in action [Kohn] account credit  

      2. Cryptoassets treated as property [Briedis]  

      3. Electricity cannot be stolen [Low v Blease] separate offence under section 13 

      4. Confidential information is not an intangible property [Oxford v Moss]  

      5. Corpse can be stolen if they have acquired different attributes by virtue of the application of skill [Kelly]  

   2. A person cannot steal land, or things forming part of land and severed from it by him or by  his directions, except in the following cases  

      1. When he is not in possession of the land and appropriates anything forming part of  the land by severing it or causing it to be severed, or after it has been severed  [Section 4(2)(b) Theft Act 1968]  

   3.  A person cannot steal plants growing wild on any land, unless he does it for reward or for  sale or other commercial purpose [Section 4(3) Theft Act 1968]  

      Wild creatures are property. A wild creature may be stolen only if [Section 4(4)]

      1. It is tamed or ordinarily kept in captivity, or  

      2. It has been reduced into and remains in another person’s possession, or 

      3. It is in the process of being reduced into possession by another person 

4. Theft Act 1968 Section 5: Belonging to another  

   1. Property shall be regarded as belonging to any person having possession or control of it, or  having in it any proprietary right or interest (not being an equitable interest arising only  from an agreement to transfer or grant an interest) [Section 5(1) Theft Act 1968]  

   2. A partner may be convicted of theft of property belonging to the partnership [Bonner] 

   3. Does not need to be a lawful possession [Smith]  

   4. The owner does not need to be aware of the possession [Woodman] 

   5. If A is in control of a site, then he is in control of articles which are on that site. He  acquires a prior title by restricting public access to the land upon which the items lie [Rostron and Collison]  

   6. A can steal his own property when another has possession and control of it [Turner (No 2)] 

5. Section 3 cases: appropriation

   1. Any assumption by a person of the rights of an owner amounts to an appropriation [Section  3(1) Theft Act 1968]  

   2. Consent is irrelevant to appropriation [Lawrence v MPC] [Gomez]

   3. Appropriation is assumption of any of the owner’s rights [Morris]  

   4. Treating “appropriation” as a neutral word comprehending “any assumption of the rights of  the owner” [Hinks] mental requirements are adequate protection against injustice

6. Section 2 cases: dishonesty

   1. A person is not dishonest [Section 2(1) Theft Act 1968]  

      1. If he appropriates in the belief that he has in law the right to deprive the other of it,  on behalf of himself or of a third person; or  

         1. Even where his belief is based on ignorance, mistake of fact or law, or  

            unreasonable, as long as it is an honest mistake [Holden]  

      2. If he appropriates in the belief that he would have the other’s consent if the other  knew of the appropriation and the circumstances of it; or  

      3. If he appropriates in the belief that the person to whom the property belongs  cannot be discovered by taking reasonable steps 

   2. Consider the three situations first. If all of them are not applicable, then apply Ivey test  [Wootton and Peake]  

   3. If D made an honest mistake, it is not theft [Falconer-Atlee]  

   4. Test of dishonesty [Ivey] overruled Ghosh, affirmed in Barton 

      1. What the individual knew and what the circumstances were?  

      2. Given that knowledge, would ordinary decent member of society say that what was  done was dishonest? 

7. Section 6 cases: Intention to permanently deprive

   1. Intention to treat the thing as his own to dispose regardless of the other’s rights [Raphael]  Borrowing or lending may amount to intention to permanently deprive if, but only if, the  borrowing or lending is for a period and in circumstances making it equivalent to an  outright taking or disposal [Section 6(1) Theft Act 1968]  

      1. No intention to permanently deprive unless all the goodness or virtue of the  property has gone [Lloyd]  

      2. Stealing money with intention to not return the specific notes taken constitutes  intention to permanently deprive the notes taken [Velumyl]  

      3. Taking and driving away without authority is dealt with under section 12 [Mitchell] 

   2. A person parts with the property under a condition as to its return which he may not be  able to perform, amounts to treating the property as his own to dispose of regardless of  other’s rights [Section 6(2) Theft Act 1968] 

      1. Risking the loss is sufficient [Fernandes] 

Inchoate offences

1. A person is guilty of attempt if he does an act which is more than merely preparatory to the  commission of the offence [Section 1(1) Criminal Attempts Act 1981]  

2. More than merely preparatory  (know the facts of the case in whether the act is merely preparatory or not)

   1. No other act on the part of the defendant would have been required, D has committed the  last act [Eagleton] overruled by Jones 

   2. Attempts begin when the merely preparatory acts come to an end and the defendant  embarks upon the crime proper. An individual need not have reached a point from which it  is impossible for him to retreat [Gullefer]  

   3. Matter has to be decided on a case-by-case basis [Campbell]  

   4. Whether the available evidence could show that D has done an act which shows that he has  actually tried to commit the offence, or whether he has only got ready or put himself in a  position or equipped himself to do so [Greddes]  

   5. There may be actions which are preparatory but are not merely so, and which are also  essentially the first steps in the commission [Tosti]

3. Intention  

   1. For murder, intent has to be intent to kill [Whybrow]  

   2. For rape, MR for attempt is the same as of the full offence [Khan]  

   3. D must be in one of the states of mind required for the commission of the full offence, and  did his best, as far as he could, to supply what was missing from the completion of the  offence [AG Reference (No 3 of 1992)]  

   4. An “intent to commit an offence” connotes an intent to commit all the elements of the  offence [Pace and Rogers]  

   5. Generally, conditional intent suffices  

      1. It must be wrong, for it cannot be said that one who has it in mind to steal only if  what he finds is worth stealing has a present intention to steal the specific item  charged [AG Reference (1 and 2 of 1979)] improved Husseyn

4. Impossible attempts  

   1. A person can be guilty of attempt even though the facts are such that the commission of the  offence is impossible [Section 1(2) Criminal Attempts Act 1981]  

      1. If the act is objectively innocent, but on the facts as D believed them to be, he was  doing something that was more than more than preparatory to the commission of  the offence, he could be convicted of an attempt [Shivpuri]  

   2. If D tries to perform an act which he believe to be illegal, but it is not, he is not guilty of an  offence of attempt (legal impossibility) [Taaffe] 

Complicity

1. Whosoever shall aid, abet, counsel or procure the commission of any indictable offence shall  be liable to be tried, indicted and punished as a principal offender Section 8 Accessories  and Abettors Act

   1. “Plain Vanilla” Joint Enterprise  

      1. If both participated in carrying out the plan, both are liable regardless of who actually  inflicted the fatal injury [Rahman]

      2. Requisite conduct element is that D2 has encouraged or assisted the commission of the  offence by D1 [Jogee]  

   2. Parasitic Accessory Liability [Jogee]  

      1. Requires an intention to assist or encourage the commission of the crime 

      2. Once encouragement or assistance is proved to have been given, does not need to prove  that it had a positive effect 

         1. However, if there is overwhelming intervening occurrence by the time the offence  was committed, it would not be realistic to say the D2 encouraged or assisted D1’s  offence. Ultimately, it is a question of fact and degree 

      3. It is enough D2 intend to assist or encourage D1, D2 need not intend D1 to do the

      4. Supplying weapon considered as encourage and assist, unless D1 has the right to demand  [National Coal Board v Gamble]  

      5. It is enough that the offence committed by D1 is within the range of possible offences which  D2 intentionally assisted or encouraged him to commit  

         1. Requires knowledge by D2 of any facts necessary to give D1’s conduct or intended  conduct its criminal character  

         2. Not merely suspicion [Bainbridge]

      6. Conditional intent suffices  

      7. If D2 continues to participate in crime A with foresight that D1 may commit crime B, that is  powerful evidence that D2 intent to assist D1 in crime B  

         1. Agreement may constitute encouragement  

      8. If D2 joins with a group which he realises is out to cause serious injury, he intended to  encourage or assist the deliberate infliction of serious bodily injury. If D1 acts with intent to  cause serious bodily harm and death results, D1 and D2 will each be guilty of murder 

      9. If D2 is a party to a violent attack on another, without an intent to assist in the causing of  death or really serious harm, but the violence escalates and results in death, D2 will be guilty  of manslaughter

   3. Fundamental Departure  

      1. It is possible for death to be caused by some overwhelming supervening act by the  perpetrator which nobody in the defendant’s shoes could have contemplated might happen  → no criminal responsibility for the death [Jogee] 

   4. Even if D1 has a defence, D2 may still be guilty of the crime [Bourne] [Cagan and Leak] 

   5. It is possible for D2 to be an accessory even if he is the victim [Gnango] 

   6. A doctor exercising bona fide his clinical judgement cannot be regarded as joint criminal enterprise  [Powell and English]  

   7. Strict liability offences 

      1. MR required of D2 is that he intended to encourage or assist D1 to do the prohibited act, with knowledge of any facts and circumstances necessary for it to be a prohibited act [Jogee]

   8. Procuring [AG Reference (1 of 1975)]  

      1. To procure means to produce by endeavour. You procure a thing by setting out to see that it  happens and taking the appropriate steps to produce that happening  

      2. Causation is important. You cannot procure an offence unless there is a causal link between  what you do and the commission of the offence