Criminal law sm2

Insanity and Automatism

Insanity and automatism are defences that remove criminal liability.

Automatism:

is an act done by the muscles without any control by the mind

Insanity:

is the internal influence of something out of the defendants control where as (non-insane) automatism is the external influence.

insanity sentencing

Loake [2017]:

The Criminal Procedure (Insanity) Act 1964 states that if the defendant has committed the acts which he is charged, and is 'insane', then he will receive the special verdict of 'not guilty by reason of insanity'

- s.5 The special verdict will impose wither a hospital or supervision order or an absolute discharge on the defendant.

Test for Insanity

M'Naghton's Case (1843):

Insanity: a defect of reason (1), from disease of the mind (2), as not to know the nature and quality of the act the defendant was doing (3); or, if he did know it, that he did not know he was doing what was wrong (4), at the time of committing the act (5)

where the individual commits an offence under and insane delusion he is exempt from punishment.

'defect of reason'

Kopsch (1927):

insanity cannot be used as a defense where the defendant is aware of what they are doing, but simply can't stop themselves from doing it / is taken over by an uncontrollable impulse because it is not a defect of reason.

Clarke (1972):

insanity cannot be used as a defence where a person has their ordinary powers of reason, but was momentarily absentminded, confused or failing adequately to use their mental powers and thus committed a criminal act. This is because there is no defect of reason.

Burgess [1991]: sleepwalking is a defect of reason for it causes the defendant to act without conscious motivation.

R v Keal [2022]:

the defence of insanity is not available to a defendant who, although he knew what he was doing was wrong, he believed that he had no choice but to commit the act in question. (such as the defendant stabbing the victim because 'the devil made him do it' all while aware that it is wrong to do so)

'disease of mind'

Sullivan [1984]:

any disease leading to the suspension of the mental faculties of reason, memory and understanding is a disease of the mind even where it is temporary or intermittent (i.ie epileptic fit - definition of insanity is technical no colloquial.)

Hennessy (1989):

Whether a disease is recurrent is a determining factor in whether it is considered external or internal. Stress, anxiety and depression are internal and thus would use insanity as a defence rather than (non-insane) automatism

Hill v. Baxter [1958]:

If disease is not the cause, if there is some temporary loss of consciousness arising accidentally, it is reasonable to hope that it will not be repeated and that it is safe to let an acquitted man go entirely free. But if disease is present, the same thing may happen again, and therefore, the law has provided that persons acquitted on this ground should be subject to restraint.

Quick [1973]:

A malfunctioning of the mind of transitory effect caused by the application to the body of some external factor such as drugs, including anesthetics, alcohol and hypnotic influences cannot fairly be said to be due to disease, thus insanity cannot be used a defence. Instead it would be charged as (non-insane) automatism, because it is caused by external factors. Diseas of the mind is caused by internal factors.

Davis (1881):

intoxication is not a disease and thus cannot be used to claim insanity, however, if the intoxication causes a disease that gives rise to insanity, then the insanity defence can be used.

'Nature and Quality of the Act'

The defendant is unaware of the nature or quality of the act.

Codere (1917):

nature and quality refer to the physical character of the act, not its moral aspects.

- i.e. A kills B under an insane delusion that he is breaking a jar (example given in Loake [2017])

Sullivan [1984]:

the defendant did not know what he was doing.

'Did not know what's he was doing was wrong'

M'Naghton's Case (1843): did the defendant know that the unlawful act he committed was (morally) wrong? If not, he can plea insanity.

Codere (1917):

to plea insanity the defendant must be unaware that, according to the ordinary standard adopted by reasonable men, the act was wrong or he presumed it to be right under the ordinary standard.

- However, even if he assumed to act to be 'right', if the defendant knew that the act was wrong in law, then he was doing an act which he was conscious he ought not to do, and thus cannot plea insanity.

R v Keal [2022]:

to please insanity, the defendant must establish both that;

a) he did not know that his act was unlawful (i.e. contrary to law) and

b) he did not know that his act was "morally" wrong (also expressed as wrong "by the standards of ordinary people").

insanity as a defense

Loake [2017]:

In virtually every case where the defendant proves that he did not know the nature and quality of his act at the time he performed it, then he will not be criminally responsible irrespective of the first limb of the M'Naghten test (a defect of reason, disease of mind), because he will lack the mens rea for the alleged offence.

- In cases of insanity, it either acquits the defendant in the basis that their disease of mind made them lack the mens rea for the act (such as strangling husband believing it is a deadly snake, no intention to kill husband) or;

- The mens rea is present, but insanity acts as a classic defence, like self-defence (for example in the case where a man intentionally kills his wife because of his deluded belief in Satan's divine order, and that it is lawful to comply with this order. he possesses the mens rea for murder but is not guilty of it because he does not know that what he is doing is unlawful) - but note Keal [2022]

Insanity and Self-Defence:

M'Naghton's Case (1843): where the individual commits an offence acting in self defense under an insane delusion he is exempt from punishment.

Oye [2013]:

exempt form punishment simply means exempt from conviction. The accused may still receive the special verdict of 'not guilty by reason of insanity' and have orders placed upon them.

Automatism

involved actions which are not governed by will / not part of the agent's conscious plan of action - lack of actus reus because the individual does not actually act.

Destruction of Control:

Attorney-General's Reference (No 2 of 1992) [1994]:

automatism requires that there was a total destruction of voluntary control on the defendant's part. Impaired, reduced or partial control is not enough. Supported by C [2007].

Coley [2013]:

the act preformed by an automaton must be involuntary, not simply irrational (such that might be the case in insanity)/

Charlson (1955):If the defendant did not know what he was doing, if his actions were purely automatic and his mind had no control over the movement of his limbs, there is automatism.

Bratty [1963]:

involuntary acts, meaning an act done by the muscles without any control by the mind, such as a spasm, a reflex action or a convulsion; or an act done by a person who is not conscious of what he is doing, such as an act done whilst suffering from concussion or whilst sleep-walking is automatism.

Causes of Automatism

Smallshire [2008]: automatism can only be caused by a complete loss of voluntary control that is not caused by what the person could reasonably foresee and is not a self-induced incapacity or one that was a result of a disease of the mind (insanity).

Quick [1973]: an external factor which causes the crime can be automatism.

Rabey [1980]: (Canadian case approved in Sullivan): the external cause must be something that does not occur in everyday life. If there is an external cause that is every day, but which causes the defendant to act involuntarily, then it may be due to an internal disease of the defendant, and thus insanity should be explored.

T [1990]:

defendant raped causing them to enter dissociative state and rob a bank. D argued it was automatism. Court accepted as this was out of the ordinary events of life and thus an external factor.

Hennessy (1989): although stress, anxiety and depression can be a result of external factors, the conditions them selves are internal factors, thus do not relate to automatism.

Prior Fault

Quick [1973]: where self-induced incapacity from drugs/alcohol, no automatism.

- Automatism can only be argued if the side effect of taking a drug is unforeseeable.

Finegan v. Heywood [2000]:

- However, this does not include where the side effect while generally unforeseeable, is known to the defendant.

Majewski [1977] - voluntary intoxication cannot be used a defence for automaton behaviour.

Pooley:

However, if the intoxication is occurring concurrent to the automatism that is caused by some other circumstance, then it is left to the jury to determine whether the automatism was self-induced or not.

Self Defense

Both AR and MR is present but using this defense, D is not guilty.

common law defence

(applies where statutory defense does not apply)

Beckford [1988]:

test for self-defence: a person may use such force as is reasonable in the circumstances as he honestly believes them to be in the defence of himself or another.

Collins [2016]:

The common law relating to self-defence required consideration of three elements:

1) whether the action was subjectively thought to be necessary by the defendant;

2) what the circumstances were subjectively believed to be by the defendant; and,

3) whether the action was objectively reasonable, judged based on those circumstances as the defendant subjectively believed them to be.

Statutory Defense 1

s.3 Criminal Law Act 1967:

s.3 (1) 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 of offenders or suspected offenders or of persons unlawfully at large.

Section 76, Criminal Justice and Immigration Act 2008

-statutory defense applies only where force is used in the prevention of crime.

Use of force

Gladstone Williams (1984):

whether the use of force was necessary/reasonable must be judged against the mistaken facts as D believes them to be.

Martin (Anthony) [2001]: physical characterises of the defendant (such as being in a wheelchair) may be taken into consideration when determining what would be reasonable force, however psychiatric conditions should be disregarded.

On who force may be used - self defense

Hichens [2011]: even if the defendant applies a force against an innocent third party in the name of self-defence, the defence will still apply. The force does not have to be against the aggressor.

- i.e; a police constable bundles a passerby out of the way to get at a man he believes about to shoot with a firearm or detonate an explosive device; (force applied to third innocent third party in prevention of crime, self-defence)

Keane [2010]:

even if the defendant themselves are the original aggressor, if the violence offered by the victim in self-defence was so out of proportion to the original aggressor, then the roles will be reversed and the defendant can act in self-defence/rely on self-defence to limit criminal liability.

o For example; A slaps B, B point gun at A for self-defence, B's actions are so out of proportion that now A can act in self-defence.

o However, note that although A can rely on self-defence, it does not mean that either party is acting lawfully.

Mistake in Self Defence

Dadson (1850): even if the act of the defendant is legal / in self-defence, if the defendant acts does not have the belief/know that what he is doing is legal /in self defence than it is not legal.

Hatton [2005]: defendant's drunken mistake cannot be relied on for the purposes of self-defence

Taj [2018]:

the words "attributable to intoxication" in s. 76(5) are broad enough to encompass both

a) a mistaken state of mind as a result of being drunk or intoxicated at the time and

b) a mistaken state of mind immediately and proximately consequent upon earlier drink or drug-taking, so that even though the person concerned is not drunk or intoxicated at the time, the short-term effects can be shown to have triggered subsequent episodes of e.g. paranoia.

This conclusion does not extend to long term mental illness precipitated (perhaps over a considerable period) by alcohol or drug misuse.

Householder Cases

D uses force against an intruder in their home in self defense.

Section 76, Criminal Justice and Immigration Act 2008

Cheeseman [2019]: whether the victim is in fact a trespasser or not is not relevant, it only matters whether the defendant believed the victim to be a trespasser.

Magson [2022]: However, whether the defendant believed the victim to be a trespasser has to be supported by some evidence.

- (For example, an individual entering a house to which he has keys with the intention to inflict violence may be a trespasser, but before he inflicts the violence, he would not be reasonably believed to be a trespasser by the defendant, thus the defendant cannot rely on this belief.)

Ray [2017]:

to determine whether the force used is reasonable it must first be determined whether the force was grossly disproportionate. If it was, then the degree of force was not reasonable and the defence of self defence is not made out.

- If the degree of force was not grossly disproportionate, then the effect of s.76(5A) is that the jury must consider whether that degree of force was reasonable taking into account all the circumstances of the case as the defendant believed them to be. The use of disproportionate force which is short of grossly disproportionate is not, on the wording of the section, of itself necessarily the use of reasonable force, and is a question for the jury.

Duress

Hasan [2005]:

"those who commit crimes because they are forced or compelled to do so against their will by the threats of another. Such persons are said, in the language of the criminal law, to act as they do because they are subject to duress"

Hudson and Taylor [1971]: duress provides a defence ... if the will of the accused has been overborne by threats of death or serious personal injury so that the commission of the alleged offence was no longer the voluntary act of the accused.

Howe [1987]:

Duress is not a defence to murder.

Duressor: a person who subjects another to duress.

Test for Duress

Graham (1982):

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

2) Would a sober person of reasonable firmness, sharing the characteristics of the defendant, would have responded to whatever he reasonably believed the duressor said or did by taking part in the crime?.

Reasonable belief in Existence of Threat:

Ireland and Burstow [1998]:

'bodily harm' includes recognisable psychiatric illnesses.

Quayle [2005]:

duress only applies to threats from external circumstances (not internal like pain or mental illness)

A v R [2012]:

duress involves pressure on the defendant with the threat of death or serious injury (GBH), including rape.

van Dao [2012]:

the threat of false imprisonment is not enough to rely on duress, it must be of death or injury.

Lynch [1975]:

threat to property is not enough to rely on dress.

Shayler [2001]:

the threat must be directed towards the defendant or a person/persons for whom he has responsibility (family, children) or, persons for whom the situation makes him responsible.

- The defendant does not need to have a previous connection to those subject to the threat, but the threat itself created the defendant's reasonability for that individual, thus duress will apply.

Cole [1994]:

duress only applies when the offence the defendant is charged with is the very offence which was requested by the person making the threat. Additionally, if there is an opportunity/way for the defendant to avoid giving into the threats, then in the case that the defendant does not use this opportunity, duress will not apply.

-For example, if the duressor threatens death unless the defendant pays a loan of money, the defendant cannot then go rob a bank and use duress as a defence for the duressor never stipulated that a bank must be robbed.

Hudson and Taylor [1971]: however, if the defendant has no opportunity to avoid giving in/ make up their mind on committing the act, then duress will apply, even if the threatened injury does not follow instantly but after an interval.

The Characteristics of the Accused:

Graham (1982) Test for reasonable firmness is dependent on the characteristics of the defendant.

Emery (1993):

a relationship of abuse is said to 'erode will' and thus will make her less 'reasonably firm' and can be taken into account when considering duress. (wife abused during relationship)

Hurst [1995]:

the characteristic that reduces the firmness of will of the defendant must be relevant to the crime committed. If it is not, it cannot be taken into consideration. (defendant abused during childhood)

Bowen [1996]: Reformulates the Graham test to instead be:

"Would an ordinary person sharing the characteristics of the defendant be able to resist the threats made to him?"

- valid characteristics that make an individual less able to resist pressure are age, sex, pregnancy, physical disability, recognized mental illness

-The fact that the defendant is more vulnerable or timid than a normal person (a coward) is not a valid characteristic.

Voluntary Association:

Hasan [2005]:

the defence of duress is excluded when as a result of the accused's voluntary association with others engaged in criminal activity he foresaw or ought reasonably to have foreseen the risk of being subjected to any compulsion by threats of violence.

-this limitation on the defence is NOT aimed at battered wives, or at others in close personal or family relationships with their duressors and their associates.

Ali [2008]:

it is the risk of being subjected to compulsion by threats of violence that must be foreseen or foreseeable that is relevant, rather than the nature of the activity in which the threatener is engaged.

Duress of Circumstances

Duress of Circumstances applies to cases where the accused was impelled to act as a result of circumstances other than threats.

i.e. the defendant, driving while disqualified (illegal act), argued the necessity to drive his son to work, fearing his mentally ill wife's potential suicide if their son did not arrive on time (no threat but objective danger) R v Martin [1989]

Conway (1989): Duress of Circumstances are subject to the limitations/rules as Duress of Threats

Colin Martin (1989): The defence of duress of circumstances has the same test as duress of

Pommell [1995]:

defence of duress applies to any type of crime expect for murder and treason.

Phair [2022]:

same limitations regarding voluntary association for duress of circumstances and defence of threats.

Best interests Necessity:

The defendant commits a crime but in the best interests of the victim (the crime benefits the 'victim')

- i.e. someone out of the way of a bus. Although the defendant commits battery, it is in the best interests of the victim (saving their life) and defended using best interests' necessity.

Re F [1990]:

mentally handicapped woman enters a sexual relationship. Court determines it is allowed to sterilize her without her consent so that she would not become pregnant as if she did, she would not understand the situation and it would cause her great mental distress. Thus, the sterilization in her best interest.

Established in Re F [1990], Best Interests' necessity is applicable when there;

1) must there be a necessity to act when it is not practicable to communicate with the assisted person, but also

2) the action taken must be such as a reasonable person would in all the circumstances take, acting in the best interests of the assisted person.

However, intervention cannot be justified when another more appropriate person is available and willing to act; nor can it be justified when it is contrary to the known wishes of the assisted person, to the extent that he is capable of rationally forming such a wish.

Theft

Theft Act (TA) 1968:

- s.1 Definition of Theft

- s.2 'Dishonesty' (MR)

- s.3 Appropriates (AR)

- s.4 'Property' (AR)

- s.5 'Belonging to Another' (AR)

- s.6 'With the intention of permanently depriving the other of it' (MR)

Theft Definition - s.1 TA 1968:

A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it

Property - s.4 TA 1968

s.4 (1) Property: Property' includes money and all other property, real or personal, including things in action and other intangible property.

Personal Property:

all the property that is left once land (real property) has been subtracted.

Real Property:

Land and Buildings. s.4(1) does include real property, but this will be heavily qualified in s.4(2)

Money:

includes cash, checks, credit/debit cards, electronic cash transfer.

Things in action:

is a legal right to something that doesn't exist physically such as bank accounts.

- Kohn (1979): Debt is a thing in action.

Other intangible property:

includes patents (also mentioned under Patents Act s30)

Real Property

s.4 (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:

b) 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

*Severance: the act of dividing a piece of land from a larger parcel, essentially creating a separate, new property from the original land

- For example, uprooting a tree, statue or gate from land which the defendant does not own, and stealing it is severance. This is the only situation in which the TA 1968 will apply to the theft of land/real property.

S.4(3) picking plants/fruit from land is not theft unless done for commercial purposes.

s.4 (4): wild animals not property unless individual turns it into property (i.e. house pets, zoo animals)

Special Cases of Property

Electricity

- Low v Blease [1975]: held that electricity not 'other intangible property' under s4(1), thus cannot be stolen. Instead, it would be charged under the special offence of abstracting electricity under s.13 of TA 1968.

- However, it is unclear if gas can be stolen as it is a physical entity.

Confidential Information

- Oxford v Moss (1979): held that confidential information itself is not 'other intangible property' under s 4(1) and thus cannot be stolen, although if the paper that contains the information is stolen it is theft.

Body Parts:

- Old common law rule: there can be no property in a corpse. Body does not belong to anyone.

- Kelly [1998]: parts of a corpse are capable of being property if they have acquired different attributes by virtue of the application of skill, such as the use of preservation and dissection techniques. (medical or archeological contexts)

Belonging to Another - s.5 TA 1968:

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

Smith [2011]:

it does not matter of the victim has lawful or unlawful possession of the property, it only matters if they had possession or control of it. Thus, although the possession of heroin is unlawful for example, it is still property and therefore can be stolen.

Woodman [1974]:

if the victim takes measures to exclude trespassers on their land, then it does not matter if they are aware of all property on the land. Even if the property stolen is one that the victim is unaware of, protection of the land is protection of the property and thus it is still theft.

Turner (No 2) [1971]:

D drops off car to V for repairs. Once repairs are done, D secretly takes car from V without paying. D charged for stealing, however argued that it was not theft for it was his own property. Court states:

- one can steal one's own property where another has possession/control

Appropriation - s.3 TA 1968

Any assumption by a person of the rights of an owner amounts to an appropriation such as any later assumption of a right to it by keeping or dealing with it as owner.

Lawrence v MPC [1971]: Italian student takes taxi, does not speak english thus unable to understand how much to pay for fare, allows the taxi driver to take the fare amount out of his wallet. Taxi driver takes ludicrous amounts of money. Driver argues this was not theft as the student consented to the money being taken thus there was no appropriation of property. Court held;

- consent is irrelevant to appropriation. Theft can be found even where the victim consented to the appropriation.

Morris [1984]:

Not all the rights of the owner over a piece of property have to be appropriated, any right is sufficient to be charged with theft.

Hinks [2000]:

D took care of a mentally challenged adult who gifted D with money. Argued that D was stealing from V. D argued that V gifted the money thus cannot be theft. Court held;

- D can be guilty of theft even if V made a valid gift, as consent is irrelevant in appropriation, and thus it does not matter that D obtained the items with V's consent.

Dishonestly - s.2 TA 1968:

No statutory definition of dishonestly included, however statue (s.2(1) ) outlines cases in which the defendant would NOT be dishonest:

a) if he appropriates the property in the belief that he has in law the right to deprive the other of it

- there has to be a genuine belief in the legal right to deprive, not moral. A genuine belief will suffice for acquittal, even if unreasonable. Holden [1991].

- Whether the defendant genuinely had this belief is for the jury to decide Falconer-Atlee (1974)

red rest on statue

dishonestly - common law

Ivey v Genting Casinos [2017]:

test for dishonesty:

1) decide what the individual knew and what the circumstances were.

2) given that knowledge - would an ordinary decent member of society say that what was done was dishonest? (objective test)

Intention to Permanently Deprive - s.6 TA 1986:

s.6 Intention to permanently deprive is to treat the thing as his own to dispose of

or if borrowing or lending is for a period and in the circumstances making it equivalent to an outright taking or disposal (meaning has all the goodness or virtue gone from the object, Lloyd [1985], such as returning completely used batteries), then there is intention to permanently deprive.

Crump (1825):

D steals saddle and uses horse to escape, eventually leaving the horse behind. Charged for the theft of the saddle but not the horse, as defendant only had the intention to permanently deprive the victim of the saddle but not horse (mens rea necessary)

Raphael [2008]:

D takes V's ford and claims that V can only have it back if he is paid 500 pounds. Charged with theft but D argues he is not guilty as he has no intention to permanently deprive.

- Court held D is guilty as holding V property to ransom is 'treat(ing) the thing as his own' (putting to ransom) 'regardless of the rights of the owner' (to have access to their property without conditions) and thus there is intention to permanently deprive.

Velumyl (1989): D robs place for cash and intends to replace the cash once he makes it back. Charged with theft, D argues that there was no intention to permanently deprive and thus no theft.

- Court held that since the intention is not the return the specific notes taken, this is an intention to permanently deprive the notes taken.

- Intention must be to return the exact property stolen, not the value of the item stolen.

Fernandes [1996]

where someone deals with property in such a manner that he knows he is risking its loss, even if he does not have intention to permanently deprive, his recklessness is sufficient to constitute intention to permanently deprive.

s.6(2) parting with property on conditions which cannot be fulfilled is

Temporary deprivation of property

Temporary deprivation of property is a separate offence:

No intention to permanently deprive is needed to be charged with these offences;

s.11 TA 1968 - Removal of articles from places open to the public, e.g. taking a painting from a gallery temporarily.

s.12 TA 1968 - Taking any vehicle to use without the consent of the owner, e.g. joy rides

Theft of Services - Theft Act

Theft Act 1978 s.3 - making off without payment; applies where payment is expected on the spot

Actus Reus: refusing to preform payment on the spot

- Troughton [1987]: it cannot be said that D has failed to pay as required or expected (on the spot) if the contract is not yet completed. Only after the contract ends is the payment expected (on the spot).

Mens Rea:

a) Knowledge that payment on the spot was required or expected of him; and

b) Dishonestly; and

c) Intent to avoid payment of the amount due

Allen [1985]:

mens rea for making off requires an intent to avoid payment permanently, not just at the time expected

- Note this is just for the mens rea for making off, for actus reus if the payment is avoided at the time expected, actus reus is fulfilled.

- Payment can be postponed if the parties agree to it.

Vincent [2001]:

Even where the defendant brings about the agreement to postpone payment by dishonestly conning and manoeuvring there is still a proper agreement to postpone the requirement and expectation for payment.

Theft of Services - Fraud Act (NOT FRAUD)

Obtaining Services Dishonestly - s.11 Fraud Act

- Note that the act does not specify that the payment needs to be made by the defendant. Therefore, it is possible that even if the defendant fit all the requirements under this act, if another party pays in his place, he will not be guilty of obtaining services dishonestly.

Criminal Damage

Criminal Damage Act 1971 s.1:

A person who without lawful excuse (5) destroys or damages (1) any property (2) belonging to another (3) intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged (4) shall be guilty of an offence.

Criminal Damage Actus Reus

Criminal Damage Actus Reus: Destroying or Damaging property belonging to Another.

property defined in CDA 1971 s.10 (1), includes real property but not things in action

Belonging to another defined in s.10 (2)

'Destroys or Damages'

- 'Destroys' implies very serious damage or permanent/irreparable damage

-Damage is a question of fact and degree for the jury, with evocation to the particular circumstances of the case.

- The damage does not need to be permanent (R v Whiteley [1991])

- Any significant alteration in property can be counted as damage provided it requires more than a trivial expenditure of time, effort or money to undo. (Roe v Kingerlee [1986])

- A diminution in value can be damage Roper v Knott [1898]

- A (a Juvenile) v R [1978]: spitting on police jacket not considered criminal damage as the 'damage' was easily reversible and minor.

- Hardman v Chief Constable of Avon [1986]: chalk painting on street, harder/ more time + money consuming to remove thus criminal damage. Also costed expenditure although it was unnecessarily incurred.

- Fiak [2006]: puts blanket in toilet causing prison cells to flood. Although damage could be reversed the cells and blanket were rendered temporarily unusable thus constituted damage.

- Morphitis v Salmon [1990]: scratches on construction scaffolding. where the damage is the kind that occurs in the normal usage of the damage there is no criminal damage.

- damage not need to be physically Cox v Riley (1986) - computer program deleted causing computer unusable.

Criminal Damage Mens Rea

MR: intending to damage/destroy or being reckless to it / being reckless as to whether property belongs to another.

R v G [2004]: CDA 1971 recklessness:

(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."

Smith (David) [1974]: damaging flooring to install stereo. where D has the honest belief the property is his own, even if it is an unjustifiable belief, and he damages it, there is no criminal damage.

Lawful Excuse to Criminal Damage

Criminal Damage Act 1971 s.5 (2): (D shall have) a lawful excuse....

s.5(2) (a): Where D believes, the owner has consented to damage...

s.5 (3) (b): Protection of Property

Cosent to damage CDA s.5(2)(a)

Denton [1981]:

sets fire to a cotton mill. Charged with criminal damages, claims that his employer encouraged him to do it and thus consented to the damage.

- Conviction for criminal damage quashed as D had a genuine belief in V's consent (the entitled party to give consent) - subjective test

Attorney General Reference No 1 0f 2023 [2024]:

the scope of s.5 (2)(a) defense (belief in consent) in the context of protest (i.e. claiming that the owner would have consented to damage during a climate protest if they understand the gravity of climate change);

- The defendant must have genuinely believed the owner would have consented, not merely that they might or should've.

- The belief must be held at the time of the act. The damage can't be an act of persuasion.

- The 'circumstances' must directly relate to the damage itself, no broader political or ethical motivation.

Jaggard v Dickson [1980]: D heavily intoxicated, attempts to break into her friend's house, but due to intoxication, accidently breaks into the wrong house, charged with criminal damage. D

- 'a belief can be just as much as honestly held if it is induced by intoxication' - statue is very clearly about subjective belief of defendant.

- It is immaterial if the belief in consent arises from self-induced intoxication so long as the belief is honest.

s.5 (3) (b): Protection of Property

4 elements:

1) Acting in order to protect property:

Chamberlain v Lindon [1998]:

following a dispute about the extent of D's right of way over part of V's land, V built a wall restricting D's vehicular access. D demolished the wall, charged with criminal damage

- D acquitted because D acted in order to protect his right of way which was a 'right or interest in property' - section 5(2)(b)

Hunt (1977):

set fire to bedding to draw attention to faulty fire alarm, charged with criminal damaged, argued that it was done in order to protect property by getting attention to the fire alarm being replaced.

- The act/criminal damage itself must offer immediate protection

- D's action must be objectively seen as capable of protecting property for this defense to apply.

2) Belief in property interest

Cresswell v DPP [2006]: D ruins bear traps to protect badgers, charged with criminal damaged as badgers are not property thus there could not be a belief in 'protecting property' to justify the criminal damage.

- The property D seeks to protect must be believed to belong to themselves or another

3) Immediate need of Protection

Hill and Hall [1988]:

D damaged property in belief that it would protect a future nuclear attack.

- While D's belief that the property needed protection is subjective, the court have held that whether that need was 'immediate' is an objective question for the jury based on the facts as D believed them.

- The threat of a nuclear attack is too remote and conjectural. The perceived threat must have crystallized, not just be a future possibility (such as in Chamberlain v Lindon [1998] where the wall creates an immediate obstruction to D's right of way).

4) Reasonable means of protection:

The statue focuses on D's own belief that their actions were a reasonable means of protection, not an objective assessment by

Criminal damage as Freedom of Expression:

Attorney General Reference (no. 1 of 2022): criminal damage (toppling and tossed in water) to a statue of Edward Colston (slave trader) during a BLM protest. The AG sought the court's opinion on whether a conviction for criminal damages in such cases would be disproportionate interference with the right to protected under the ECHR.

- Court of appeal ruled that 'causing significant damage' or inflicting damage in a violent or non-peaceful manner during protests does not attract convention protection against prosecution and conviction;

- Therefor no question of proportionality arises.

- The toppling of the statue was not peaceful and the damage was significant, thus falling outside the protection of the convention right to freedom of expression.

However, it is theoretically possible that cases involving minor or trivial damage to property may arise where proportionality is relevant... in those circumstance, the Strasbourg case law suggests that conviction may not be a proportionate response in the context of protest.

Fraud

s.1 Fraud Act 2006: There are 3 types of Fraud:

1) Fraud by false representation

2) Fraud by abuse of position

3) Fraud by failing to disclose information

All 3 types of Fraud require:

- Dishonestly as defined in Ivey v Genting Casinos [2017].

- Intention to gain to cause loss or risk

- Intention to deceive

Does not require anyone to actually be deceived or for any property to even be obtained, simply needs D to act with the intention to deceive to gain or cause loss. (causation in the head)

s.5 FA 2006: Gain and Loss:

(2a) extend only to gain or loss in money or other property;

(2b) include any such gain or loss whether temporary or permanent;

- "property" means any property whether real or personal

Fraud by false representation Actus Reus

s.2 FA 2006: Fraud by false representation

O'Leary [2013]: D makes false statement "As we agreed, I did some work on your roof two months ago. Can I trouble you for payment?" to an elderly woman with early onset dementia.

- Fraud by false representation as he makes false representation and intends to gain payment from the woman.

- Deller (1952): car encumberment. the falsity of the statement is judged objectively, if D believes the statement to be false, but it is in fact true, he is not guilty of Fraud.

Barnard (1837): D wears student gown to suggest he is a student and gain student discount. While no statement made the clothing made an implied representation of a student - guilty of fraud.

- Idrees v DPP [2011]: D had someone take his driving test for him. Implied rep/fraud can occur through an agent

- Harris (1975): Booking into a hotel is (implied) representation of intention to pay at end of stay.

- Ray [1974]: D honestly ate a meal, realized he did not have wallet, waited at table until clear of waiters, ran out. Remaining at table in a restaurant after eating meal is continuing representation to pay for it.

Credit/ Debit Payments:

Lambie [1982]: broke mother uses Barclay card at Mothercare despite not having banks authority. In presenting the card D makes 2 implied representations:

- V will be paid

- D has the authority of the bank/credit company to use the card.

Making representations to Machines: FA 2006 s.2 (5)

Fraud by false representation Actus Reus Mens rea

Mens Rea of Fraud: intending to knowingly make a gain/loss through the deception.

- Augunas [2013]: subjective standard used when determining whether the representation was untrue/ misleading, meaning did D believe it was true?

- However, where D engages in wilful blindness/ignorance, he still knows that the representation nis untrue / misleading and thus still guilty of fraud.

Gilbert [2012]:

A director of a family run company falsely stated that the company was backed by family money. The bank opened an account for the use of the company.

Convicted of fraud by false representation.:

- the trial judge did not direct the jury that she must be shown to have intended to make a gain by the misrepresentation

- Thus, for fraud there must be an intention to make a gain by the misrepresentation.

- Additionally, any profits the company might make from deals they went on to secure with the use of the bank account (the gain) would be too remote from the lies told by the manager.

Fraud by failure to disclose

s.3 FA 2006:

dishonestly fails to disclose to another person information which he is under a legal duty to disclose intending gain or loss

Mens Rea: dishonestly (Ivey), Intention to gain or cause loss or risk.

Actus Reus: 'failure to disclose'. Presumably D must disclose everything that is material to the relevant question.

Duty to disclose

Home Office Fraud Law Reform (2004): must disclose where there is legal duty to disclose.

Razoq [2012]:

NHS doctor signed contract that stipulated agency must be informed on any disciplinary proceedings against D.

- D was under a legal duty to disclose the fact that he was subject to disciplinary proceedings.

White [2014]: where disclosure of certain information is not required by the agreement there is not legal duty thus no fraud. (mortgage case)

duty to disclose may arise from statue, contract, From the custom of particular trades or Between professionals and their clients

Fraud by Abuse of Position

s.4 FA 2006:

D dishonestly abuses his position where he is expected to safeguard the financial interests of another position to make gain/loss

- includes omissions

Actus Reus:

Valujevs [2014]: judge + jury determines whether D was in a position to safeguard financial interests. The test is based on a reasonable person standard.

- suggests there should be fiduciary duty /fiduciary relationship (involving money + trust):

- professional, client, within family, between partners, agent, principal, trustee, beneficiary etc.

Marshall [2009]:

D was manager of a residential home for persons with severe learning difficulties. She used £7,000 from residents' accounts for her own purposes (conviction under s4).

Mens Rea: dishonestly (Ivey), Intention to gain or cause loss or risk.

Attempts

The Criminal Attempts Act 1981:

D attempts if he does an act that is more than merely preparatory to the commission of the offence

Attempt cannot be done through omission

Attempts Actus Reus

Gullefer [1990]: test for the actus reus- "When the merely preparatory acts have come to an end and Defendant begins the crime proper, he is guilty of an attempted offence" (stopping grey hound race)

Jones [1990]:

buying shot gun, wearing disguise, driving to scene of crime = merely preparatory.

when D points gun at V, although he does not shoot V, the act crosses the threshold of merely preparatory and instead constitutes an attempt.

Campbell [1991]:

D stopped by police officers before entering and found to be carrying an imitation gun and a threatening note. D convicted of attempted robbery. D appealed, arguing that although he intended to rob the post office, he had changed his mind but was arrested before he could leave.

- D must be placed in a physical location where he can commit the intended offence to be guilty of attempt

Geddes (1996):

D climbed into school with knife and tape, intended to kidnap a child but did not make any contact with the staff or children. quashed because;

- While D had the mens rea to commit the offence, as he did not contact any of the students/staff, D did not surpass the preparation stage into execution, and thus lacked actus reus

- The line of demarcation between acts which are merely preparatory and acts which may amount to an attempt is whether D has actually tried to commit the offence in question, or whether he has only got ready or put himself in a position or equipped himself to do so.

Tosti [1997]: checking lock - there may be actions which are preparatory which are not merely so and which are essentially the first steps in the commission of the offence.

SM [2021]:

prepped to move abroad with her child, forged documents, packed, starting driving towards the dock. Considered to have embarked 'upon the crime proper' despite not being in France yet. Geographical proximity

Attempt Mens Rea

Mens Rea: intention to commit the offence

Whybrow (1951):

while murder require intent to kill or intent to cause GBH, the mens rea for attempted murder is only intent to kill. Not a constructive offence.

Khan [1990]:

attempted rape. the mens rea for the attempt is the mens rea for the substantive crime

Attorneys-General's Reference (No 3 of 1992) [1994]:

attempted arson with bomb. The mens rea for an attempt is the mens rea for the substantive offence coupled with the intent to bring about / supply the missing physical element that would turn the attempt into the offence.

Pace and Rogers [2014]: scrap metal. mens rea to commit all elements/ actus reus of the offence

Impossible Attempts

Criminal Attempts Act 1981 s.2

A person may be guilty of attempting to commit an offence to which this section applies even though the facts are such that the commission of the offence is impossible

Shivpuri [1987]:

a mistaken belief by the defendant that he was committing an illegal act that was in fact innocent can render him liable for attempt even if the act was not in fact illegal

Conditional Intention: a type of intent where a person's mental state is based on a specific condition or circumstance. It means that the individual intends to commit a criminal act if certain conditions are met or if specific events occur.

Attorney-General's Reference (1 and 2 of 1979) [1980]:

a conditional intent is sufficient for a charge of attempt.

Accessorial Liability

Accessories and Abettors Act 1861, s.8: Abettors in misdemeanours:

Whosoever shall aid, abet, counsel, or procure the commission of any indictable offence, whether the same be an offence at common law or by virtue of any Act passed or to be passed, shall be liable to be tried, indicted, and punished as a principal offender.

Types of Accessorial Liability

Plain Vanilla Joint Enterprise:

involves two or more individuals sharing a common purpose to commit a crime, and committing the crime together.

Secondary Liability: when one party facilitates, materially contributes to, induces, or is in some other way responsible for the infringing acts performed by another party.

Accessorial Liability Actus Reus

Jogee [2016]:

Actus Reus: D2 must encourage or assist the commission of the offence by D1

- D2's encouragement does not need to have an effect on D1's conduct/outcome for accessorial liability. Simply requires D2 to encourage.

- If crime B is caused by some overwhelming supervening act by the perpetrator which nobody in the defendant's shoes could have contemplated might happen, then D2 is not guilty - fundamental departure.

- D2's encouragement cannot have occurred so long ago that it has faded to the point of mere background (i.e. a year ago)

Kennedy No.2:

A free, deliberate, informed decision by D1 may break the chain of causation meaning D2 will not to be liable

- But in some circumstances D2 may still be legally responsible even if D2 is free deliberate and informed (i.e. hitman) - complicity, joint enterprise, common purpose, parasitic accessorial liability.

National Coal Board v Gamble [1959]:

Supplying the weapon with which D1 may commit the crime is assisting.

Accessorial Liability Mens Rea

Jogee [2016]:

Mens Rea: D2 must intend to encourage or assist the commission of the crime, with knowledge of any existing facts necessary to give D1's conduct/intended conduct its criminal character.

- D2 does not need to intend for D1 to preform the crime, must simply intend to assist it.

- D2 does not need to know or intend the specific crime preformed, it is enough that he intends to assist an offence that is within the range of possible offence which D1 committed.

- Mere suspicion is not sufficient, knowledge that a crime of the type in question was intended is necessary.

- Where D2 and D1 join to commit crime A, and D1 commits crime B, it is necessary to establish whether D2 had to the intention to assist crime B for D2 to have accessorial liability for crime B.

- Where D2 and D1 join to commit crime A, but D2 has foresight that D1 may commit crime B, it may be evidence that he intends to assist crime B, but it is not conclusive.

- Conditional intention may be sufficient for assisting crime A or B.

Innocent Agency

a person (the principal) uses another (the innocent agent) to carry out a criminal act, but the innocent agent lacks the necessary mental state (mens rea) for the crime.

Bourne (1952):

Bourne forced his wife by duress to commit an offence, so she then had a defence (ie of duress) and was not herself charged with the offence, but Bourne was nonetheless convicted of the offence as having aided, abetted, counselled, or procured it.

Cogan and Leak [1976]: In this case, Leak procured Cogan to have sex with Leak's wife, to which she did not consent. Even if it was assumed that Cogan was not guilty of rape as he lacked mens rea, Leak could still be guilty (had mens rea, assisted the commission of Cogans crime, thus had actus reus).

Accessorial Liability

Gnango [2011]: even where D2 is a victim of the crime they assist D1 to commit, they can still be guilty (i.e., sadomasochism, Brown)

Accessorial Liability - Strict Liability Offences

Jogee [2016]:

"Where the offence charged does not require mens rea, the only mens rea required of the secondary party is that he intended to encourage or assist the perpetrator to do the prohibited act, with knowledge of any facts and circumstances necessary for it to be a prohibited act"