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PRINCIPLES OF CRIMINAL LIABILITY REVISION

Elements of a crime: Actus Reus + Mens Rea +The Absence of a Valid Defence

ACTUS REUS

The physical element of the defence: an act, a failure to act (an omission) or a ‘state of affairs’. For
some crimes, the actus reus must also result in a consequence e.g. for murder or for ABH.

Actus Reus must be voluntary – Hill v Baxter (automatism)

State of affairs: where D is convicted even though they did not act voluntarily. Larsonneur; Winzar

OMISSIONS

Normal Rule = an omission cannot make a person guilty

Comparison with other legal systems = good Samaritan law exists in some systems e.g. France.

Exception to the normal rule :

• An act of Parliament can create liability for an omission e.g. failure to report a road traffic
incident, failing to provide a specimen of breath

• For common-law crimes an omission is only sufficient for the actus reus if there is a duty to
act.

a. A contractual Duty (Pittwood)

b. A duty because of a relationship (Gibbins & Proctor)

c. A duty which has been taken on voluntarily (Stone & Dobinson)

d. A duty through one’s official position (Dytham)

e. A duty which arises because the defendant has set in motion a chain of
events (Miller; Santana – Bermudez)

Clarification needed in certain areas:

• Discontinuance of medical treatment – if it is in the best interests of the patient then it is
NOT an omission which can form the actus reus of murder (Airdale NHS Trust v Bland)

• Unlawful Act Manslaughter – cannot be committed by an omission because there must be
an unlawful ACT (Lowe)

• Gross Negligence manslaughter can be committed by an omission. If a duty of care exists
then the D can be liable if an omission or failure to act causes death.

CAUSATION

Where a consequence must be proved (RESULT RATHER THAN CONDUCT CRIMES), then the
prosecution has to show that the D’s conduct was:

• The factual cause of the consequence

• The legal cause of the consequence

• There was no intervening act which broke the chain of causation

Factual

‘But for Test’ – (White; Pagett)

Legal

Conduct which is more than a ‘minimal cause’ of the consequence but not necessarily a ‘substantial
cause’ (Kimsey – More than a slight or trifling link)

The Thin Skull Rule – taking the victim as you find them (Blaue)

Intervening Acts

In order to break the chain of causation so that D is not responsible for the consequence, the
intervening act must be sufficiently independent of the D’s conduct and sufficiently serious.

• Act of the victim themselves - if D causes the victim to react in a foreseeable way then any
injury to the victim will be considered to have been caused by D. (Roberts, Marjoram); If
the victim acts in an unreasonable and unforeseeable way then it may break the chain of
causation (Williams); Where the wounds caused by D were still an ‘operating and
significant cause’ the jury are entitled to convict D, even if V had effectively decided to
commit suicide by allowing the wounds to continue to bleed (Dear).

• Act of a third party - Where the D’s conduct causes a foreseeable action by a third party,
then the D is likely to be held to have caused the consequence. (Pagett).

o Medical treatment: Provided that the injury caused by D was still an operating and
substantial cause of death, D would be guilty (Smith); D’s act need not be the sole or
even the main cause of death, provided that his acts contributed significantly to the
death. ‘Unless the negligent treatment was so independent of D’s acts and in itself so
potent in causing death, that the jury regard the contribution made by the D as
insignificant’. (Cheshire); But where treatment is ‘palpably wrong’ it will break the
chain of causation (Jordan).

o Life Support Machines – The switching off of a life-support machine by a doctor
when it has been decided that the victim is brain dead, does not break the chain of
causation (Malcherek)

• A natural but unpredictable event – e.g. ambulance crash which kills a victim who
suffered minor injuries etc.

ACTIVITY: Have a look the following problem questions and assess whether or not D is the
factual and legal cause of the consequence.

John, who has learning difficulties, is a member of his school's under-16 mixed hockey team. The
team's captain, Ken, constantly criticises John in front of the other members of the team for being
overweight and slow. During a particularly rough game against a rival school, John lost the ball to
Katie, a girl from the opposing team, who promptly scored. Ken ran over to John, shouting furiously,
"you fat slug, even a girl can play better than you!” John felt angry and humiliated and when Katie
next moved in to tackle him, he lost all restraint and struck her savagely on the leg with his stick.
After the game was over, Katie noticed a swelling in her leg, and showed it to her sports teacher,
Lisa. Lisa said that it was probably just a bad bruise, but advised Katie to rest the leg and see her
doctor in the morning. Katie ignored this advice and went out to party where she danced until ten
o'clock. However, that night Katie collapsed and was taken to hospital, where she died. It was later
discovered that her death was due to a blood clot caused by the blow to her leg, and that her life
could have been saved if she had received prompt medical treatment.

Consider whether John may be criminally liable for Katie's death

Causation - John's blow was clearly the factual cause of Katie's death, on the "but-for" test in
White, so the issue is whether the conduct of either Lisa or Katie amounts to a novus actus
interveniens. Katie's conduct in ignoring Lisa's advice would seem to fall within the principle of
taking one's victim as you find her: Blaue. If V failed to seek medical treatment (Holland) or acts in
a way which exacerbates the risk of death (Wall) this will not normally break the chain of
causation (Dear) - although it may be relevant to sentence if D is convicted of manslaughter. Lisa
is slightly more problematic: she clearly has a duty of care towards Katie and it could be argued
that she failed to discharge this by merely giving and would not warrant taking Katie to hospital.
Candidates may argue that Lisa should have administered first aid, and draw analogies with cases
involving negligent medical treatment such as Smith, Jordan, Cheshire or Adamako (some may be
aware of Misa and Srivastava (2005), where doctors held guilty of gross negligence manslaughter
for failure to diagnose and treat MRSA). However, it seems very unlikely that Lisa's conduct
would be held to have broken the chain of causation.

June and Kitty work as care assistants in a nursing home. One of the patients, Mary, is very heavy
and un-cooperative. One morning Mary stubbornly refused to get into her wheelchair. June lost her
temper and for a moment she did not care whether she hurt Mary or not. Although it was strictly
against the nursing home's rules, she grasped Mary under the armpits and physically hauled her
into the wheelchair. The wheelchair toppled under Mary's weight, crushing Kitty against the wall.
Mary began to complain that her arm was hurting. Kitty was also in pain but she decided not to tell
anyone what had happened in case her friend, June, got the sack. Later that day, the Matron noticed
that Mary's arm looked swollen, so she drove Mary to the hospital to have it X-rayed. It turned out
that Mary's arm was broken and the hospital decided to keep her in for a few days. Meanwhile,
Kitty was in agony but did not dare to complain for fear of Matron finding out how Mary had come
by her injury. That night, Kitty collapsed and died from internal bleeding. Mary's broken arm healed
well but while she was in hospital she contracted MRSA and subsequently died from that infection.

Consider whether June may be criminally liable for the deaths of Kitty and Mary. [25]

Causation issue – candidates may draw analogies with cases involving negligent medical
treatment such as Smith, Jordan, Cheshire or Adamako (some may be aware of Misa and Srivastave
(2005), where doctors held guilty of gross negligence manslaughter for failure to diagnose and
treat MRSA). However, it could be argued that the risk of picking up an infection while in hospital
is a predictable consequence of injuring someone and would not break the chain of causation.

Charlie became very depressed after his girlfriend Ruby, ended their relationship and married
David. He wrote dozens of letters to Ruby, begging her to leave David and come back to him.
Eventually, David went to see Charlie at his flat, and told him that this behaviour would have to
stop. Charlie was overcome by a jealous rage and struck David on the head with a coffee pot. The
blow fractured David's skull, which was abnormally thin. Charlie immediately summoned an
ambulance, and David was taken to hospital. By the time the ambulance arrived at the hospital,
David's heart had stopped beating and he was no longer breathing. David was rushed to the
intensive care unit and placed on a life-support system. The doctors told Ruby that even if David
survived he would be irreversibly brain-damaged. Ruby wanted to let David die with dignity, so
while the doctors were out of the room, she disconnected the machines that were keeping him
alive.
Consider whether Charlie and Ruby may be criminally liable for David's death.

Causation – whether David's death is legally attributable to the actions of Charlie or Ruby. This
depends on whether David was still alive when Ruby turned off the life support system. Under the
conventional criteria (no heartbeat, not breathing) David was dead when he reached hospital;
however, the courts have shown willingness to accept the medical criterion of brain-stem death.
In Malcherek and Steel, the CA upheld convictions for murder where victims were on life-support
machines and the doctors switched off the machine after tests showed that the victims were
brain-dead. The CA recognised that brain death is the accepted medical criterion of death, but did
not actually decide that this is the legal definition of death. In Airdale NHS Trust v
Bland, there are dicta in the House of Lords to the effect that brain-stem death is the legal test of
death. Charlie – if Charlie’s actions were held to be the legal cause of death, he may be guilty
of murder or manslaughter depending on his state of mind when he struck David.

MENS REA

INTENTION

‘a decision to bring about, in so far as it lies within the accused’s power, the prohibited
consequence, no matter whether the accused desired that consequence of his act or not’ (Mohan)

MOTIVE IS IRRELEVANT IN DECIDING WHETHER D HAD INTENTION

DIRECT INTENTION

The defendant set out to achieve a particular result or consequence. They foresaw a particular
result as a certainty and wanted to bring it about. Defined in Moloney as: ‘a true desire to bring
about the consequences’.

INDIRECT/OBLIQUE INTENTION (foresight of consequence)

Where D intends one thing but the actual consequence which occurs is another thing. Here it is a
question of foresight of consequence. If, in achieving the other thing, D foresaw that he would also
cause the actual consequence, then he may be found guilty.

Case Law:

• Moloney: HL’s confirmed that even where it was not someone’s desire, purpose and so on,
the jury is entitled to infer that he still intended a result where D knows that the result is a
natural consequence of his actions & D realised this.

• Hancock & Shankland: In such cases the probability of death or injury arising from the act
done is important, because "if the likelihood that death or serious injury will result is high, the
probability of that result may be seen as overwhelming evidence of the existence of the intent
to kill or injure."

• Nedrick: ‘The jury should be directed that they are not entitled to INFER the necessary
intention unless they feel sure that death or serious bodily harm was a virtual certainty
(barring some unforeseen intervention) as a result of D’s actions and that the D appreciated
that such was the case. The decision is one for the jury to be reached on a consideration of
all of the evidence.”

• Woolin: ‘The jury should be directed that they are not entitled to FIND the necessary
intention unless they feel sure that death or serious bodily harm was a virtual certainty
(barring some unforeseen intervention) as a result of D’s actions and that the D appreciated
that such was the case.

• Re A: The court thought that Woollin made foresight of consequence part of the substantial
law rather than evidential law by substituting the word INFER with FIND i.e. that foresight
of consequence IS intention not evidence of intention.

• Mathews and Alleyne: Confirmed that foresight of a consequence, even of a virtually
certain one, is NOT intent, but simply evidence from which intention may be found.
Although the CA said there was little to choose between a rule of evidence and a rule of
substantive law leaving the meaning of intention ever more unclear.

• REFORM: Under our recommendations, first degree murder would encompass: (1)
intentional killing; or (2) killing through an intention to do serious injury with an
awareness of a serious risk of causing death.

• The Law Commission in common with a House of Lords Select Committee recommends that
foresight of a virtual certainty should amount to intention. This would mean that foresight
would again be part of the substantive law, not merely part of the evidence. At present, a
person who kills foreseeing death or grievous bodily harm as virtually certain may be
convicted of murder; under the reformed scheme such a person would be convicted of
murder.

RECKLESSNESS:

Covers the situation where a defendant takes an unjustifiable risk. As with intention, it is a
subjective test, and the defendant must recognise the risk that he or she is taking.

 Recklessness was defined in the case of R v Cunningham. Maliciously means that the D
must either intend the consequence or realise that there was a risk of the consequence
happening and decide to take that risk.

 Previously two different types of recklessness existed - subjective and objective (Caldwell
Recklessness), but the objective form is now extinct following the case of R v G and
Another (2003).

GROSS NEGLIGENCE: Where D owes a duty of care, breaches that duty (by an act or omission) and
creates a risk of death. (Misra & Another 2004 – bodily injury or injury to health not enough)The
breach of duty is so gross that it deserves to be describes as ‘criminal’. (R v Adomako (1995)).

TRANSFERRED MALICE : D can be guilty if he intended to commit a similar crime but against a
different victim. (Latimer). But where the mens rea is completely different type of offence then D
may not be guilty (Pembilton)

GENERAL MALICE: D may not have a specific victim in mind e.g. terrorism. In this case the D’s
mens rea is held to apply to the actual victim.

COINCIDENCE OF ACTUS REUS AND MENS REA: Both actus reus and mens rea must be present
for an offence to take place. This can happen where the actus reus and mens rea combine in a series
of acts (Thabo Meli v R; Church). As long as they coincide at some point (say where the actus reus
is a continuing act) then D will be guilty (Fagan).

ACTUS REUS AND MENS REA OF OFFENCES RELEVANT TO THE EXAM

MURDER:

AR: D kills a reasonable creature in being, under the Queens peace, and the killing is unlawful

MR: Express malice aforethought – which is the INTENTION to kill or implied malice aforethought –
which is the INTENTION to cause grievous bodily harm.

BURDEN/STANDARD OF PROOF: The prosecution must prove beyond reasonable doubt.

VOLUNTARY MANSLAUGHTER:

Same AR & MR as Murder, but the killing occurs when the D is under diminished responsibility,
provocation or suicide pact. In other words the D kills a reasonable creature in being, under the
Queens peace, and the killing is unlawful. They intend to kill or cause GBH, but at their state of mind
at the time of the killing means that a partial defence exists.

BURDEN/STANDARD OF PROOF: Defendant has to prove on a balance of probabilities.

INVOLUNTARY MANSLAUGHTER:

UNLAWFUL ACT MANSLAUGHTER:

AR: D does an unlawful act (Lamb; Lowe) which is dangerous on an objective test (Church;
Larkin; Mitchell)and the act causes death (Dalby, Kennedy, Dias, Rogers)

MR: the required mens rea for the unlawful act, e.g. the mens rea for ABH, for Burglary, Robbery
(Newbury & Jones) etc.

BURDEN/STANDARD OF PROOF:

Prosecution must prove beyond reasonable doubt.

GROSS NEGLIGANCE MANSLAUGHTER

AR: Act or omission in breach of an existing duty of care which creates a risk of death and results in
death.

MR: Conduct so bad in all the circumstances as to amount to a criminal act or omission. Conduct
beyond a matter of mere compensation, showing such disregard for life and safety of others as to
amount to a crime.



RECKLESS MANSLAUGHTER

AR: An act or omission which results in death.

MR: Recklessness – D realises that there was a risk of the consequence happening and decide to
take that risk.



ASSAULT & BATTERY:

AR: causing V to fear immediate unlawful force (assault) or application of unlawful violence even
the slightest touching (battery)

MR: Intention of, or subjective recklessness



ABH:

AR: Assault i.e. an assault or battery with the consequence of ABH

MR: Intention or subjective recklessness



S.20 GBH:

AR: D wounds or INFLICTS grievous bodily harm with or without a weapon or instrument

MR: Intention or subjective recklessness



S.18 GBH:

AR: D wounds or CAUSES grievous bodily harm

MR: Intent to do some grievous bodily harm or to resist or prevent the lawful apprehension or
detainer of any person



ACTIVITIES

Visit each of the problem questions and assess whether or not D has demonstrated the mens rea
for the relevant offence(s).

"you fat slug, even a girl can play better than you!” John felt angry and humiliated and when Katie

Mens rea - for murder, malice aforethought - intention to kill or cause grievous bodily harm:
Moloney; knowledge that one's action is virtually certain to cause death or grievous body
harm: Woollin.

June and Kitty work as care assistants in a nursing home. One of the patients, Mary, is very heavy
and un-cooperative. One morning Mary stubbornly refused to get into her wheelchair. June lost her
temper and for a moment she did not care whether she hurt Mary or not. Although it was strictly
against the nursing home's rules, she grasped Mary under the armpits and physically hauled her
into the wheelchair. The wheelchair toppled under Mary's weight, crushing Kitty against the wall.
Mary began to complain that her arm was hurting. Kitty was also in pain but she decided not to tell
anyone what had happened in case her friend, June, got the sack. Later that day, the Matron noticed
that Mary's arm looked swollen, so she drove Mary to the hospital to have it X-rayed. It turned out
that Mary's arm was broken and the hospital decided to keep her in for a few days. Meanwhile,
Kitty was in agony but did not dare to complain for fear of Matron finding out how Mary had come
by her injury. That night, Kitty collapsed and died from internal bleeding. Mary's broken arm healed
well but while she was in hospital she contracted MRSA and subsequently died from that infection.

state of mind – mens rea of murder = malice aforethought – an intention to kill
or cause grievous bodily harm: Maloney. This requires knowledge that one's action
is virtually certain to cause death or grievous bodily harm: Woolin. Recklessness will
not suffice. June's state of mind looks like recklessness rather than intention to
cause GBH, so would not amount to mens rea of murder.

Charlie became very depressed after his girlfriend Ruby, ended their relationship and married
David. He wrote dozens of letters to Ruby, begging her to leave David and come back to him.
Eventually, David went to see Charlie at his flat, and told him that this behaviour would have to
stop. Charlie was overcome by a jealous rage and struck David on the head with a coffee pot. The
blow fractured David's skull, which was abnormally thin. Charlie immediately summoned an
ambulance, and David was taken to hospital. By the time the ambulance arrived at the hospital,
David's heart had stopped beating and he was no longer breathing. David was rushed to the
intensive care unit and placed on a life-support system. The doctors told Ruby that even if David
survived he would be irreversibly brain-damaged. Ruby wanted to let David die with dignity, so
while the doctors were out of the room, she disconnected the machines that were keeping him
alive.

Charlie – if Charlie's actions were held to be the legal cause of death, he may be guilty of
murder or manslaughter depending on his state of mind when he struck David.
Murder – intention to kill or cause grievous bodily harm. Possible defences –diminished
responsibility on the basis that Charlie suffers from depression. Provocation – gravity of the
provocation – any characteristic which affects the gravity of the provocation to D can be
taken into account – Morhall. The degree of self control to be expected from an ordinary
person – Morgan Smith, A – G for Jersey v Holley – PC restored view of majority in Luc Thiet
Thuan – the CA in James; Karimi held that the PC in Holley had overruled the HL in Morgan
Smith and it was bound tofollow Holley.

Involuntary manslaughter – if Charlie lacked intention to kill or cause gbh, he may be
convicted of manslaughter on the basis of an unlawful and dangerousact – Franklin. Newbury
– mens rea is simply the intention to do the unlawful act –Scarlett, Owino.

Direct:
The defendant desires a consequence
and it is his purpose to achieve it.
Indirect/oblique:
A result is indirectly intended even
Intention though not desired, when:
(1) That result is a virtually certain
consequence, and
(2) The actor knows that it is a
virtually certain consequence (R
v Hancock & Shankland (1986); R
v Nedrick (1986); R v Woollin
(1998)

Varies according to the particular
circumstances. The Law Commission
suggested a general definition as
follows:
Recklessness A person is reckless if:

(a) Knowing that there is a risk that
an event may arise from his
conduct or that a circumstance
Mens may exist, he takes that risk, and
Rea (b) It is unreasonable for him to
take it having regard to the
degree and nature of the risk
which he knows to be present.

Defendant:

• Owes a duty of care

Gross Negligence • Breaches that duty and creates a
risk of death.

• The breach of duty is so gross
that it deserves to be describes
as ‘criminal’. (R v Adomako
(1995)).

STRICT LIABILITY REVISION NOTES

Definition & contrast with absolute liability

• Strict liability offences do not need mens rea to be established for D to be guilty.

• Actus Reus (voluntary) must be proved which is how SL offences differ from absolute liability ones
where the actus reus may be committed involuntarily (Larsonneur/Winzar).

• It is a departure from the fundamental principle that a voluntary act, a guilty mind and absence of a
valid defence must coincide for D to be guilty of an offence.

• This departure may be seen as unjust – i.e. that D may be morally innocent and have taken every
possible step to ensure that they did not break the law but will still be liable (Callow v Tillstone).

• Mens rea may be required for part of the actus reus of an offence but not for others. (Prince (1875)
and Hibbert (1869) & B v DPP as case examples)

• D may be convicted even if his act inadvertently caused a prohibited consequence and D is totally
blameless.

• Most SL offences are statutory and regulatory in nature e.g health and safety laws and are put in
place to protect the public.

• Some statutes explicitly state that the offence is one of strict liability (e.g. s.5,6&7 Sexual Offences
Act 2003 – Rape, assault by penetration, sexual assault of a child under 13). But others are silent on
the matter and this is where statutory interpretation comes in.

• Statutory language, such as “mens rea words” like ‘maliciously’ ‘knowingly’ demonstrate that the
offence is NOT one of SL, as mens rea is required. Sometimes mens rea words are used in some
sections but not others and so it may be construed as meaning that mens rea is not required to
make D guilty of an offence under those sections. It may be the case that if these words are not
included then Parliament intended it to be a strict liability offence.

• Case law shows inconsistency of statutory interpretation though.

CRITICISMS JUSTIFICATION
• Is it EVER morally just to convict a person who •
The following cases show that the purpose of SL
has no mens rea? Callow v Tillstone (1900) & offences is to make a ‘safer, cleaner, and more
Harrow LBC v Shah and Shah (1999) are efficient society.’ Callow v Tillstone,
examples of the fact that there is no due Pharmaceutical SGB v Storkwain (1986)
diligence defence. In other words where D does
Alphacell v Woodward (1972); James & son v
all they can to avoid breaking the law they are
Smee (1954) Harrow LBC v Shah and Shah
still guilty because their act inadvertently causes
(1999) ). Without SL offences companies may be
harm despite their efforts. permitted to pollute rivers by disposing of
• controlled substances irresponsibly, they could
• Although Parliament sometimes includes a shirk responsibility for providing a safe place of
defence for such people within a piece of work for employees and people could defend a
legislation, there is a lack of consistency. case of drink driving if it were not a SL offence.

There is no evidence to suggest that companies• SL offences regulate behaviour and help in the
will raise standards. If they will be convicted smooth running of society making it clear what
should a mistake be made despite having taken is acceptable and what is unacceptable
all reasonable steps, will they bother taking behaviour.
those steps?

• Sometimes a defence of mistake exists, but this Principles in Gammon (1984) - This sets out the
defence is applied inconsistently - Cundy v Le procedure for deciding whether an offence is
cocq (1884) & Sherras v De Rutzen (1895). one of strict liability. It can be argued that
• because of this procedure, SL offences can be
Impact on public respect for the criminal law. If
the morally innocent are convicted, the public justified.
may lose respect for the criminal justice system. 1. There is a presumption of mens rea.
• Sweet v Parsley; B v DPP (2000) ; R v K.
• Although many SL offences are summary in Kumar (2004), S(2005)
nature (i.e. punishable by a fine) some are not 2. This presumption is particularly strong
(Gammon) and may result in imprisonment for a where the offence is ‘truly criminal’
person who is morally innocent. In Gammon the rather than a quasi crime because it may
penalty was up to 3 years imprisonment. involve stigma attached to D or a term of
• imprisonment. Quasi – (regulatory
• offences) – Callow v Tillstone (1900);
Cundy v Le Coq (1884); Gammon (1984),
Harrow LBC v Shah and Shah (1999),
Alphacell v Woodward (1972). Truly
Criminal - Sweet v Parsley (1970); B v
DPP (2000); R v K (2001); R v BLAKE
(1997)
3. The presumption can be displaced
only if this is clearly or by necessary
implication the effect of the statute
4. The only situation in which the
presumption can be displaced is where
the statute is concerned with an issue of
social concern; public safety is an issue).
– discussion of the degree of social
danger and rebutting the presumption.
Sweet v Parsley (1970)Empress Car
Company v National Rivers Authority
(1998) Blake (1997)Bromley LC v C
(2006)
5. Even where the statute is concerned
with such an issue, the presumption
stands unless it can be shown that
making it a strict liability offence will
lead to the promotion of standards and
law enforcement)Reynolds v GH Austin
and Sons Ltd ; Lim Chin Aik (1963);
City of Saulte Ste Marie (1978);
Smedleys Ltd v Breed (1974)

•
•

SUGGESTIONS FOR REFORM

Parliamentary guidance on statutory interpretation or make it explicitly clear where an offence is
one of SL.

Consistent application of the due diligence defence – i.e. if D has taken all possible steps to avoid the
offence they will be innocent.

ACTIVITIES

THERE ARE MANY CASES TO DISCUSS IN AN ESSAY ON STRICT LIABILITY!!!

Create a case law glossary list of SL cases. Include the following.

• Case name

• Summary of facts

• What argument (justification or criticism) does the case support?

Use the revision notes and your case law glossary to answer the two essay questions below.

1. Examine critically the criteria which the courts have developed for determining whether an
offence is one of strict liability.

2. Strict Liability offences contribute to a safer, cleaner and more efficient society and can be
justified on these grounds. Critically discuss.

If a defendant fully intends to commit a crime but for some reason fails to complete the actus reus, the law on
attempts is available to ensure that he or she can still be prosecuted. (e.g. White 1910).

The law on attempts is contained in s.1(1) of the Criminal Attempts Act 1981

“If with intent to commit an offence to which this section applies, a person does an act which is more than
merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence’

The defendant must perform an act that is ‘more than merely preparatory’ to the commission of the offence.

Criminal Attempts Act DOES NOT define the phrase and it is a matter for the jury to decide in each case

It is up to the jury to decide whether the defendant has progressed to something beyond the preparation stage.
This is not an easy decision to make.

Campbell 1990 – all the acts were merely
Attempted robbery? When? preparatory until he walked into the bank.
1. D decides to rob a bank. In this case D who had an imitation gun,
2. He buys a shotgun sunglasses and a threatening note in his
3. He converts it to a sawn off shotgun pocket was still in the street outside the
4. He drives around the area looking for escape routes post office when arrested. His acts were
5. He steals a car and drives to the bank merely preparatory.
6. He stands on the pavement outside the bank
7. he bank carrying the shotgun in his bag
8. He walks into the bank

Previously, (Pre the 1981 Act) the law on attempts was covered by the common law, and a series of tests was
developed by the courts to decide whether the defendant was guilty or not. As the 1981 Act was a codifying Act,
past cases can be considered where any provision of the Act is doubtful.

The tests:

The proximity test: ‘acts remotely leading towards the commission of the offence are not to be considered as
attempts to commit it, but acts immediately connected with it are’.

See Robinson (1915)

The Law commission supported this test.

• The rubicon test (Stonehouse (1978): Adopted in Widdowson (1986) soon after the enactment of the new
legislation.

• Has D ‘crossed the Rubicon and burnt his boats: that is, gone beyond the ‘point of no return’.

The series of Acts test: (Sir James Stephen C19th Judge)

Has the D already completed a series of acts that would have been successful if not interrupted?

Referred to in Boyle and Boyle (1986) Where D’s were found standing by a door to which the lock and one hinge
were broken.

Progress!! After much confusion....

Since the case of R v Gullefer (1987), the courts have stressed that the words of the Criminal Attempts Act 1981
are to be followed, rather than the tests laid down in pre-statute cases.

Gullefer: D jumped onto a race track in order to have the race declared void and so enable him to reclaim money
he had bet on the race. His conviction for attempting to steal was quashed because he had several other acts to do
before the theft.

The C of A held that ‘more than merely preparatory’ means the D must have gone beyond purely preparatory acts
and be ‘embarked on the crime proper’. In this case he had not.

In Jones (1990) is was decided that the ‘natural meaning’ of the words should be used and old case law should
not be turned to.

• D discovers that his girlfriend is seeing another man (F). D decides to do something about it. He decides to
kill this love rival.

But at which point does he become liable for attempted murder?

• He buys a shotgun
• He shortens the barrel
• He loads it
• He leaves his house, wearing overalls and a crash helmet with the visor down, carrying a bag containing
the loaded gun.
• He approaches F’s car as F drops his daughter off at school Taylor LJ said that all acts until he ot into the car
• He opens the car door and gets in and pointed the loaded gun were merely
• He says he wants to sort things out preparatory, once he had done that, there was
• He takes the shotgun from the bag sufficient evidence of an attempt to leave to the
• He points it at F, and says, ‘you’re not going to like this’. jury.
• F grabs the gun, throws it out of the window and escapes.

Geddes: D was found in the boy’s lavatory block of a school, in possession of a large kitchen knife, some rope and
masking tape. He had no rights to be in the school. He had not contacted any of the pupils. His conviction for
attempted imprisonment was quashed. (He had not actually tried to commit the full offence in question.)

The CA put forward a two stage test:

1. Had the accused moved from planning or preparation to execution or implementation?

2. Had the accused done an act showing that he was actually trying to commit the full offence or had he got
only as far as getting ready, or putting himself in a position, or equipping himself, to do so?

R v Tosti (1997)

D and an accomplice had oxyacetylene equipment, (fuel to aid cutting) which they hid in a hedge neat to a barn
that they planned to break into. They walked up to the barn door and examined the lock on it. When they realised
they were being watched, they ran away. On appeal their convictions for attempted burglary were upheld, as the C
of A said that there was evidence that showed that they had gone beyond the preparatory stages and had actually
tried to commit the offence.

Bowles v Bowles (2004)

CA quashed D’s conviction of attempting to ‘make a false instrument’. He has been convicted of attempting to
forge a will in the name of his neighbour who was an elderly widow with dementia. After his arrest an unsigned
will was found which detailed her house being left to D. She has already created a will leaving her house to charity.

The conviction was quashed because there was no evidence of D having taken any steps to have it executed. The
act of writing the will was merely preparatory.

Mens Rea

D must normally have the same intention as would be required for the full offence. If the prosecution cannot
prove that D has that intention then D is not guilty of the attempt.

In Mohan (1975) intent was defined as the decision to being about the commission of an offence no matter
whether D desired the consequence of his act or not.

Easom (1971)

D picked up a woman’s handbag in a cinema, rummaged through it, then put it back on the floor without removing
anything from it. His conviction for theft of the bag and its contents was quashed. The C of A also refused to
substitute a conviction for attempted theft of the bag and specific contents (including a purse and a pen), as there
was no evidence than D intended to steal them.

There was no evidence of an intention to permanently deprive (the mens rea of theft).

Similarly in Husseyn (1977) D and another man had been observed loitering near the back of a van.

As police approached they ran off. D was convicted of attempting to steal a quantity of sub-aqa equipment that
was in the van. The CA quashed the conviction

AG’s Ref (Nos 1 & 2 of 1979)

C of A decided that if D had a conditional intent (i.e. D intented stealing if there was anything worth stealing, D
could be charged with an attempt to steal some or all of the contents.

Recklessness is not normally sufficient mens rea for an attempt. This is so even where recklessness would suffice
for the completed offence.

Millard and Vernon (1987)

Ds repeatedly pushed against a wooden fence on a stand at a football ground. The prosecution alleged that they
were trying to break it and they were convicted of attempted criminal damage. The C of A quashed their
convictions.

However recklessness is relevant in some circumstances

A-G’s Ref (No 3 of 1992) 1994

D threw a petrol bomb towards a car containing four men. The bomb missed the car and smashed harmlessly
against a wall. D was charged with attempting to commit arson with intent to endanger life.

C of A held that it was necessary to prove that D intended to damage property, but it was only necessary to prove
that he was reckless as to whether life would be endangered.

In relation to attempted rape although the law commission took the view that D would need intention to have
non-consensual intercourse and that D would need to know that the intercourse was non-consensual, the courts
have allowed recklessness to stand.

Khan 1990 D along with 3 others, was convicted of the attempted rape of a 16 year old girl. All 4 men tried to have
sex with her unsuccessfully,

Their convictions were upheld despite the trial judges direction that, on a charge of attempted rape, it was only
necessary to prove that they intended to have sex, knowing that the girl was not consenting, or not caring whether
she consented or not.

Section 1(2) of the Criminal Attempts Act 1981 states:

• ‘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

• Physically Impossible: E.g. D attempts to pick V’s pocket, which, unknown to D, is in fact empty; or D
attempts to murder V, who, unknown to him, died that morning.

• Legally Impossible: e.g. D attempts to handle goods, believing them to be stolen, when in fact they are not
stolen.

Anderton v Ryan (1985)

D bought a video recorder that she believed to be stolen. After confessing this to the police, they found no
evidence to show that the equipment had been stolen but the D was nonetheless charged with attempting to
handle stolen goods. She was convicted, but on appeal, the H of L quashed her conviction, despite the wording of
s. 1(2) of the CAA 1981 which clearly made her guilty.

Less than a year later, the H of L overruled the decision in Anderton (using the Practice Statement) in R v Shivpuri
(1986).

Do you think it is fair that someone can be convicted based solely on intention rather than actually doing anything
wrong?

Public protection v only punishing those who deserve to be punished?

If conviction of a crime is impossible because there is no such offence, the D cannot be guilty of attempting it.

R v Taafe (1984) :

D’s luggage was searched by customs on arrival into he UK and a number of packages were found. He was asked
what they contained and he said money. He thought that he was committing a crime by importing currency but
there is no such crime so D could not be guilty of attempting it. It is irrelevant that he thought he was committing a
crime.

Evaluation

Sentence s. 4 CAA 1981 – same max sentence as completed crime.

Some people argue that the person convicted of an attempted offence should not face the same maximum penalty
as someone who has actually committed the full offence, since he or she is not as blameworthy.

Others ( who support the current system) argue that often a person will only fail because he or she is caught
before committing the full offence or because something beyond his or her control occurs to prevent him or her.
They claim that if the defendant intended to commit the crime, he or she is as blameworthy as the D who actually
committed it and should therefore face the same sentence. Protection of society.

No opportunity to withdraw

Once the defendant has performed an act that is more than merely preparatory, there is no opportunity or
incentive for him or her to withdraw, since he or she will be liable for the attempted offence. As this carries the
same maximum penalty as the full offence, he or she might as well continue, since there is nothing to be gained by
withdrawal.

Determining when an act is ‘more than merely preparatory’

As statute gives no definition of what is meant by the phrase ‘more than merely preparatory’, it is left to juries and
appeal courts to decide. This creates uncertainty and can allow D who are clearly a danger to avoid liability.
Geddes/Campbell!

However it could be argued that the ‘more than merely preparatory test’ has helped clarify and simplify the law as
it is an improvement on prior tests. It makes it easier for juries because they can apply common sense.

Protection of the public

Why should attempting something make someone liable? The main justification is protection of the public.

Can prevent the full offence from being committed. It would be ridiculous if the police had to wait until D fired the
shot and killed V, instead of being able to arrest him for attempted murder.

But can we reconcile Geddes and Campbell with this?

Law Commission Proposals

Our provisional proposal: the offence of ‘attempt’

We are provisionally proposing that there should be an offence of ‘attempt’confined to those who, with intent to
commit a substantive offence, were engaged in the last acts needed to commit it. In other words, their attempt
was complete or all-but complete.

Our provisional proposal: the offence of ‘criminal preparation’

We are provisionally proposing that there should be a new offence of ‘criminal preparation’ applying to those
who, with intent to commit the offence, were still only preparing to commit it but had proceeded beyond the stage
of mere preparation. In other words, their preparation was immediately

Should intention alone make a defendant guilty?

Should a D be liable for his intention or mere contemplations?

Or must he do something toward the commission of the full offence?

This question is particularly relevant to attempting the impossible. IS it fair that Shivpuri was guilty despite not
actually dealing in drugs or doing anything wrong? Is it enough that he intended to in order to protect the public?

• Murder = intention to kill or to cause really serious harm (GBH)

• Attempted murder = intention to kill only

This means that it is easier to be convicted of murder than it is for attempted. Is this fair?

But D could be charged with attempted s.18 GBH instead so is not completely let off.

ATTEMPTS EVALUATION ESSAY

If a defendant fully intends to commit a crime but for some reason fails to complete the actus reus, the
law on attempts is available to ensure that they can be prosecuted. The rationale behind the law is that
those who plan to commit an offence but fail deserve to be punished and its existence means that if the
police are aware that an offence is going to be committed, they do not have to wait until it is complete
before arresting the suspects. If the defendant is found guilty, they will usually face the same maximum
penalty that applies to the full offence.

The problem with prosecuting those who attempt crimes is where to draw the line. Should they be liable
as soon as they think of committing a crime? Obviously the law does not seek to punish those who
merely think about committing an offence as most people have probably thought about committing a
crime but few ever would and also it would be virtually impossible to secure a conviction in those
circumstances. The difficulty is at what stage the defendant becomes criminally liable for an attempted
crime.

The law on attempts is contained in the Criminal Attempts Act 1981: Section 1(1) “If with intent to
commit an offence to which this section applies, a person does an act which is more than merely
preparatory to the commission of the offence, he is guilty of attempting to commit the offence.”

Since the Act does not define the phrase, this is a matter for the jury to decide in each case. The judge
will firstly consider whether there is enough evidence to go before the jury but if so, it is entirely a
matter of fact for them. It is up to them to decide whether the defendant has passed the preparation
stage and progressed to something beyond that. Obviously, this is not an easy decision to make.

In R v Gullefer (1987), the defendant had placed a bet on a greyhound at the racetrack but it soon
became obvious that his choice was not going to win. The defendant ran onto the track in order to
disrupt the race so that it would be declared void and he could then retrieve his stake money from the
bookmakers. The question was whether his actions could be said to be more then merely preparatory to
the commission of theft. The Court of Appeal overturned his conviction for attempted theft. They said
that he had not gone beyond the preparatory stages, as he still had to go and ask for his money back
from the bookmakers.

Previously, the law on attempts was covered by the common law and a series of tests were developed
by the courts to decide whether the defendant was guilty or not. Since Gullefer, the courts have stressed
that the words of the Criminal Attempts Act 1981 are to be followed rather than the tests laid down in
pre-statute cases. In R v Geddes (1996), the defendant was found in the boys’ toilets of a school. He ran
off, leaving a rucksack containing string, tape and a knife. He was convicted of attempted false
imprisonment but on appeal this was quashed, as despite the fact that he clearly had the requisite
intention, his actions were preparatory – he had not progressed beyond the preparatory stage since he
had not made contact with any of the boys. He had simply put himself in the position of being able to
commit the offence and he had not moved into the implementation stage.

The defendant in R v Tosti (1997), along with another had oxyacetylene equipment which they hid in a
hedge near to a barn that they planned to break into. They walked up to the barn door and examined
the lock on it when they realised that they were being watched and ran away. On appeal, their
convictions for attempted burglary were upheld as the Court of Appeal said that there was evidence

that showed that they had gone being the preparatory stages and had actually tried to commit the
offence.
In order to be liable, the statute states that the defendant must act with intent to commit an offence –
thus the mens rea for an attempted offence is intention. Thus, for example, the mens rea for attempted
murder is an intention to kill, an intention to cause GBH which would be sufficient for a murder
conviction, will not be enough to make the defendant liable for attempted murder.

In R v Mohan (1976), The defendant refused to stop when a police officer signalled for him to do so and
instead, drove towards the officer who managed to move out of the way in time. The defendant’s
conviction for attempted GBH was quashed due to an error by the trial judge. The Court of Appeal
stated that the mens rea for an attempted offence was satisfied by a decision to bring about the
commission of the offence – in other words only intention would suffice.

A conditional intent may arise, if for example, instead of having a specific object in mind, the defendant
intends to take anything worth stealing. This may be enough to make him liable for an attempted
offence. In R v Husseyn (1977), the defendant and another man were seen standing by the back of a van
which contained diving equipment. They had intended to take anything worth stealing but ran off when
the police approached them. The defendant was convicted of attempting to steal the diving equipment
but this was quashed on appeal as he had been charged specifically with attempting to steal the diving
equipment when in fact his true intention was to steal anything.

This case appeared to leave a gap in the law which posed a problem for the courts since a defendant
could simply claim that they were not intending to steal whatever specific thing was detailed in the
charge and following Husseyn, they would be acquitted. The problem was resolved in Attorney
General’s References (Nos. 1 and 2 of 1979) where the Court of Appeal held that a conditional intent
was enough to impose liability for an attempted offence if the charge does not refer to specific items. In
Husseyn, the defendant could have been found guilty if he had been charged with attempted theft of
anything from the van instead of being charged specifically with attempted theft of the diving
equipment, as there was no evidence that this was his intention.

With regard to attempting the impossible, section 1(2) of the Criminal Attempts Act 1981 states that:

“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.”

Thus, the person who puts their hand into an empty pocket can be guilty of attempted theft even
though it would be impossible for them to be convicted of the full offence as there was nothing to steal.
Here, the crime is physically impossible but in other circumstances, the crime may be legally impossible,
for example if the defendant attempts to handle what they think are stolen goods but the goods are not
in fact stolen e.g. Anderton v Ryan (1985), the defendant bought a video recorder that she believed to
be stolen. After confessing this to the police, they found no evidence to show that the video had actually
been stolen and the defendant was therefore charged with attempting to handle stolen goods. She was
convicted but on appeal, the House of Lords quashed her conviction despite the fact that the wording of
section 1(2) of the Act clearly made her guilty.

This was an unexpected result and one which was to be changed only a year later in R v Shivpuri (1986)
where the defendant was arrested after being found carrying a suitcase which he believed contained
either heroin or cannabis. In fact, the substance was merely dried cabbage leaves. The defendant was
convicted of attempting to be knowingly concerned in dealing in controlled drugs. His conviction was
upheld by the Court of Appeal. On appeal to the House of Lords, they took the opportunity to correct
the mistake made a year earlier in Anderton v Ryan. They used the 1966 Practice Statement to depart
from their previous decision. The defendant was held to be guilty since he had clearly intended to
commit the offence and had done an act which was more than merely preparatory to the commission of
the offence.

If conviction of a crime is impossible because there is no such offence, the defendant cannot be guilty of
attempting it. As in R v Taaffe (1984) where the defendant’s luggage was searched by customs on arrival
into the UK and a number of packages were found in his luggage. He was asked what they contained and
replied that it was money. He thought that he was committing a crime by importing currency into the
UK. In fact, there is no such crime so the defendant could not be guilty of attempting it. It was irrelevant
that he thought that he was actually committing a crime.

Some have agued that the person convicted of an attempted offence should not face the same
maximum penalty as someone who has actually committed the full offence since they are not as
blameworthy. Those in favour of the current system argue that often a person will only fail to commit
the full offence because they are caught beforehand or because something beyond their control occurs
to prevent them. They claim that if the defendant intended to commit the crime then they are as
blameworthy as the defendant who actually committed it and should therefore face the same sentence.

As the statute gives no definition of what is meant by the phrase “more than merely preparatory,” it is
left to juries and appeal courts to decide. This creates uncertainty and can allow defendants who are
clearly a danger to avoid liability as in Geddes.

Once the defendant has performed an act which is more than merely preparatory, there is no
opportunity or incentive for them to withdraw since they will be liable for the attempted offence. As this
carries the same maximum penalty as the full offence, they might as well continue since there is nothing
to be gained by withdrawal.

1. Why is it necessary for the criminal law to cover attempts?

If a defendant fully intends to commit a crime but for some reason fails to complete the actus
reus, the law on attempts is available to ensure that they can be prosecuted. The rationale
behind the law is that those who plan to commit an offence but fail deserve to be punished and
its existence means that if the police are aware that an offence is going to be committed, they
do not have to wait until it is complete before arresting the suspects.

2. How is an attempt defined?
The law on attempts is contained in the Criminal Attempts Act 1981:
Section 1(1) “If with intent to commit an offence to which this section applies, a person does an
act which is more than merely preparatory to the commission of the offence, he is guilty of
attempting to commit the offence.”
3. Who decides whether an act is “more than merely preparatory?”
Since the Act does not define the phrase, this is a matter for the jury to decide in each case. The
judge will firstly consider whether there is enough evidence to go before the jury but if so, it is
entirely a matter of fact for them. It is up to them to decide whether the defendant has passed
the preparation stage and progressed to something beyond that. Obviously, this is not an easy
decision to make.

4. What happened in R v Tosti (1997)?
The defendant along with another had oxyacetylene equipment which they hid in a hedge near
to a barn that they planned to break into. They walked up to the barn door and examined the
lock on it when they realised that they were being watched and ran away. On appeal, their
convictions for attempted burglary were upheld as the Court of Appeal said that there was
evidence that showed that they had gone being the preparatory stages and had actually tried to
commit the offence.

5. What is the mens rea of attempt?
In order to be liable, the statute states that the defendant must act with intent to commit an
offence – thus the mens rea for an attempted offence is intention. For example, the mens rea
for attempted murder is an intention to kill, an intention to cause GBH which would be sufficient
for a murder conviction, will not be enough to make the defendant liable for attempted murder.

6. Can a person attempt the impossible?
Yes, section 1(2) of the Criminal Attempts Act 1981 states that:

“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.”

7. What happened in Anderton v Ryan (1985)?
The defendant bought a video recorder that she believed to be stolen. After confessing this to
the police, they found no evidence to show that the video had actually been stolen and the
defendant was therefore charged with attempting to handle stolen goods. She was convicted

but on appeal, the House of Lords quashed her conviction despite the fact that the wording of
section 1(2) of the Act clearly made her guilty.

8. How was this rectified a year later?
In the case of R v Shivpuri (1986) - The defendant was arrested after being found carrying a
suitcase which he believed contained either heroin or cannabis. In fact, the substance was
merely dried cabbage leaves. The defendant was convicted of attempting to be knowingly
concerned in dealing in controlled drugs. His conviction was upheld by the Court of Appeal. On
appeal to the House of Lords, they took the opportunity to correct the mistake made a year
earlier in Anderton v Ryan. They used the 1966 Practice Statement to depart from their previous
decision. The defendant was held to be guilty since he had clearly intended to commit the
offence and had done an act which was more than merely preparatory to the commission of the
offence.

9. What is the maximum sentence that a person convicted of an attempted crime can receive?
If the defendant is found guilty, they will usually face the same maximum penalty that applies to
the full offence.

10. Do you think that it is fair that the defendant can receive this penalty?
Some have agued that the person convicted of an attempted offence should not face the same
maximum penalty as someone who has actually committed the full offence since they are not as
blameworthy. Those in favour of the current system argue that often a person will only fail to
commit the full offence because they are caught beforehand or because something beyond
their control occurs to prevent them. They claim that if the defendant intended to commit the
crime then they are as blameworthy as the defendant who actually committed it and should
therefore face the same sentence.

MURDER & MANSLAUGHTER REVISION

Homicide – the unlawful killing of a human being. There are different types depending on the mens
rea of the D and whether there is a special defence.

Murder = most serious where D kills V having INTENDED (directly or indirectly) to do so.

“The unlawful killing of a reasonable person in b-eing and under the Queens peace with malice
aforethought, express or implied”

Voluntary Manslaughter = Where the killing occurs when the D is under

• Diminished Responsibility

• Provocation

• Suicide Pact

The 3 defences are PARTIAL – charge of murder is reduced to manslaughter and the judge has discretion
in what sentence is imposed rather than being limited to a life sentence.

DIMINISHED RESPONSIBILITY

s.2(1) HA 1957

DEFINITION: “Where a person kills or is party to a killing of another, he shall not be convicted of
murder if he was suffering from such abnormality of mind (whether arising from a condition of
arrested or retarded development of mind or any inherent causes or induces by disease of injury) as
substantially impaired his mental responsibility for his acts and omission in doing or being a party to
the killing”.

BURDEN OF PROOF: on the D proved on the balance of probabilities.

ABNORMALITY OF MIND: A state of mind so different from that of ordinary human beings that the
reasonable man would term it abnormal (Byrne). Comparisons with insanity are not helpful (Seers).

Can include:

• Depression, (Seers) Paranoia (Simcox) , Epilepsy(Price) , PMT, BWS (Hobson)

& is wide enough to cover

• The inability to form a rational judgement as to whether an act is right or wrong

• The inability to exercise will power to control physical acts with that rational judgement
(irresistible impulses).Byrne.

CAUSES OF ABNORMALITY OF MIND:

Abnormality of mind must be attributable to at least one of the causes listed in s.2(1)

Any Inherent Cause: (an internal cause from within D) Wide scope & doesn’t need to be inherited or
present from birth (Gomez). Includes the examples above i.e. psychopathy (Byrne); mental deficiency
(Speake); paranoia, epilepsy. Depression, PMT, BWS & Asperger’s syndrome (Jama)

Disease: Wide enough to cover mental as well as physical disease (Sanderson).

Injury: usually as a result of physical violence but can also be inflicted by violent or dramatic
psychological stress as well as by slow merciless factors, little by little and with hopelessness.
(Whitworth).

SUBSTANTIALLY IMPAIRS:

Byrne: The question of whether D’s impairment could be described as substantial was a question of a
degree and so was one for the jury (although medical opinion was not irrelevant).

Lloyd: It doesn’t mean ‘total’ nor does it mean ‘trivial’ or ‘minimal’. It is something in between.

GIVES JURY WIDE DISCRETION – have found manslaughter where very little evidence of DR but D has
reacted to severe grief or stress.

DR & INTOXICATION

• Transient effect of drink or drugs on brain is not an injury for the purposes of DR (Di Duca;
O’Connell)

• Alcoholism is only a defence if drinking is involuntary or brain has been damaged (Tandy)

• Where the D has a pre-existing mental disorder, intoxication does not prevent him using the
defence. The abnormality of mind does not have to be the sole cause of the defendant doing
the killing. (Gittens; Egan; Dietschmann; Hendy)

2008 UPDATE:

Wood (2008)

Alcohol dependency syndrome could be considered as a possible source of abnormality of mind and was
for the jury to decide. If the jury found that it was an abnormality of mind they had to then consider the
effect of any alcohol consumed by the D as a result of his dependency. The jury have to decide which
drinks were involuntary and consider the effect of those, while ignoring any consumption of alcohol they
decide was voluntary.

PROVOCATION

S.3 HA 1957

DEFINITION: “where on a charge of murder there is evidence on which the jury can find the person
charged was provoked (whether by things done or by things said or by both together) to lose his self-
control, the question whether the provocation was enough to make a reasonable man do as he did
shall be left to the jury; and in determining that question the jury shall take into account everything
both done and said according to the effect it would have on a reasonable man”

BURDEN OF PROOF: D must provide evidence of provocation. The onus is then on P to prove that D was
NOT provoked. If there is evidence of provocation, the judge must direct the jury to consider it.

TWO STAGE TEST:

1. A SUBJECTIVE test – did D lose his self control?

2. An OBJECTIVE test – Was the provocation enough to make a reasonable man do as D did? When
conducting the objective test, D’s characteristics are relevant, but only when assessing the
gravity of provocation (James, Karimi (2006) following Holley (2005) and overruling Smith
(Morgan) 2000 going back to Camplin)

a. Power of self control – D is assumed to have the standard of self control expected of a
reasonable person of the age and sex of the D. (objective test)

b. Gravity of the provocation – D’s characteristics can be taken into account e.g. glue
sniffer (Morhall), impotence (Bedder); pregnancy, menstruation, physical deforminty,
infirmity (Camplin). The characteristics may be self induced and may be psychological as
well as physical.

WHAT CAN BE PROVOCATION?

Physical assaults, both on D or on his relatives (Pearson); homosexual advances; the continual crying of a
19 day old baby(Doughty); a denial of stealing the D’s tools (Smith (Morgan)); the actions of a wife’s
lover in going to meet her, where the husband was provoked into killing his wife (Davis – provocation
can come from a 3rd party); supplying drugs to D’s son (Baillie).

LOSS OF SELF CONTROL

DUFFY: ‘Sudden & temporary loss of self control rendering the accused so subject to passion as to
make him or her for the moment not master of his mind’

CUMULATIVE PROVOCATION:

Humphrey’s: provocation is not confined to the last act or word before the killing.

TIME LAPSE

The longer the time lapse between the provocation and the killing, the less likely that the defence will
succeed. (Ibrams & Gregory; Baillie). Loss of self control must be sudden not immediate (Thornton,
Ahluwalia).

SLOW-BURN

Argued unfair to women who have a slower reaction (slow-burn) to provocation (Thornton, Ahluwalia).
This reaction does not fit the Duffy test. The D’s reaction to the provocation has to be sudden rather
than immediate and the longer the delay, the more likely the act is deliberate.

DR REFORM

11 Persons suffering from diminished responsibility
“(1) A person (“P”) who kills or is a party to the killing of another is not to be convicted of
murder if P was suffering from a relevant mental impairment which provides an explanation for
P’s acts and omissions in doing or being a party to the killing.
(1A) “Relevant mental impairment” means an abnormality of mental functioning which -
(a) arises from a recognised medical condition, and
(b) substantially impairs P’s ability to do one or more of the following -
(i) to understand the nature of P’s conduct;
(ii) to form a rational judgment;
(iii) to exercise self-control.
(1B) For the purposes of subsection (1), a relevant mental impairment provides an explanation
for P’s conduct if it causes, or is a significant contributory factor in causing, the person to carry
out that conduct.”
1

2This brings the existing terminology up-to-date in a way which would accommodate future
developments in diagnostic practice and encourage defences to be grounded in a valid medical diagnosis
linked to the accepted classificatory systems which together encompass the recognised physical,
psychiatric and psychological conditions.

3It also spells out what aspects of D’s functioning must be impaired.

PROVOCATION REFORM

The Government proposes to abolish the existing law on provocation and to replace it with new partial
defences tailored to those who kill as a response to:
•a fear of serious violence; and/or
•circumstances of an extremely grave character, giving rise to a justifiable sense of being seriously
wronged.

The first will cover situations where:
• a victim of sustained abuse kills his or her abuser in order to thwart an attack which is
anticipated but not immediately imminent; and
• someone overreacts to what they perceive as an imminent threat.
In the second it has been made clear that V’s infidelity WILL NOT be reason enough to kill.
The threshold has been raised where only words or actions of exceptionally grave
character are acceptable.

Sudden and temporary loss test will be abolished – control must be lost but will allow for situations
where the D’s reaction has been delayed or builds gradually.

1The partial defences should apply only if a person of the defendant’s sex and age, with a normal
degree of tolerance and self-restraint and in the circumstances of the defendant, might have reacted
in the same or a similar way.

ACTIVITIES:

Zandra, who is aged 16, has had an unhappy childhood. She has left home and has turned to
drugs and prostitution. She is living with Shaun, aged 33, who is a weightlifter. Shaun regularly
forces Zandra to give him her earnings. He is jealous and possessive and has beaten her on a
number of occasions. She is immature and has often harmed herself to seek attention. One
night, fearing that Shaun will beat her up and force her to have sex with him, Zandra cuts her
wrists. When Shaun comes into the lounge and sees what she has done, he taunts her saying
she has made a pathetic job of slashing her wrists. Zandra goes to her bedroom to get her knife,
returns to the lounge and stabs Shaun in the chest killing him instantly.

Discuss Zandra’s potential liability for the murder of Shaun.

Define murder: Discuss direct intent to do serious harm at least therefore murder charge is
sustainable

Discuss provocation/diminished responsibility as potential special and partial defences which, if
successful, would reduce the conviction to voluntary manslaughter allowing discretion in
sentencing

Define Provocation – S.3 Homicide Act 1957

Evidence of provocation: Shaun’s conduct and words and past behaviour may be taken together
to provide evidence of provocation even though the last is trivial – Humphreys

Sudden and temporary loss of self-control; – Duffy; Ibrams & Gregory; Thornton; Humphrey’s
o there appears to be no sudden and temporary loss of self-control – Zandra goes
to her bedroom to get her knife – Duffy; Ibrams & Gregory
o There appears to be a ‘cooling off’ period –Thornton; Ahluwalia
1

Objective ‘reasonable man test’: as developed by the courts including the characteristic which
affect the gravity of the provocation to the accused and those which affect the power of self
control to be expected; – Camplin; Smith (Morgan James); Weller; Rowland; Holley; Mohammed;
Karimi & James etc

• it would appear that Zandra’s immaturity may still be taken into account –
Camplin; Humphreys
• the evidence of her suffering from ‘battered woman syndrome’ is more
likely to be seen as a psychiatric condition post Ahluwalia; Hobson; Holley
and this and her attention seeking is unlikely to be taken into account as a
relevant characteristic unless it affects the gravity of the provocation to the
reasonable 16 year old woman, not the level of self-control to be expected –
Holley; Mohammed; Karimi & James

Define Diminished responsibility – S.2 Homicide Act 1957
1• abnormality of mind – Byrne
2• substantial impairment – Sanderson
3• internal cause
4• specified cause – Seers; Ahluwalia; Hobson
5• medical evidence

Argue that the relevant evidence appears to exist for a successful use of the defence – Ahluwalia;
Hobson; Humphreys

It should, however be supported by expert psychiatric evidence – Dix; Hobson
Argue to any logical conclusion

"you fat slug, even a girl can play better than you!". John felt angry and humiliated and when Katie
Consider whether John may be criminally liable for Katie's death. [25]

ANSWER

John may be guilty of murder or manslaughter, depending on
(a) his action being the cause in law of Katie's death, and
(b) his state of mind when he struck Katie.

Causation - John's blow was clearly the factual cause of Katie's death, on the "but-for" test in White,
so the issue is whether the conduct of either Lisa or Katie amounts to a novus actus interveniens.
Katie's conduct in ignoring Lisa's advice would seem to fall within the principle of taking one's victim
as you find her: Blaue. If V failed to seek medical treatment (Holland) or acts in a way which
exacerbates the risk of death (Wall) this will not normally break the chain of causation (Dear) -
although it may be relevant to sentence if D is convicted of manslaughter. Lisa is slightly more
problematic: she clearly has a duty of care towards Katie and it could be argued that she failed to
discharge this by merely giving and would not warrant taking Katie to hospital.
Candidates may argue that Lisa should have administered first aid, and draw analogies with cases
involving negligent medical treatment such as Smith, Jordan, Cheshire or Adamako (some may be
aware of Misa and Srivastava (2005), where doctors held guilty of gross negligence manslaughter
for failure to diagnose and treat MRSA). However, it seems very unlikely that Lisa's conduct would
be held to have broken the chain of causation.

Mens rea - for murder, malice aforethought - intention to kill or cause grievous bodily harm:
Moloney; knowledge that one's action is virtually certain to cause death or grievous body harm:
Woollin.
Defences - John may have the defence of diminished responsibility reducing murder to
manslaughter: Homicide Act 1957, s.2 - abnormality of mind arising from arrested or retarded
development: Byrne.

Provocation: Homicide Act 1957, s. 3 - John may rely on provocation even if he was provoked by
Ken rather than Katie (Davies, Pearson). According to the HL in smith (Morgan), evidence of mental

impairment is relevant to both the gravity of the provocation to D and his capacity for self-control:
however, this had been disapproved by the full Privy Council in A-G for Jersey v Holley (2005). The
position would now seem to be as it was under Campling and Morhall i.e., mental impairment
relevant to whether D lost his control and the gravity of the provocation to D, but D's action to be
judged against the standard of a reasonable person of D's sex and age.

Involuntary manslaughter - unlawful act manslaughter - act must be unlawful and dangerous:
Franklin, Lamb, Church, Newbury. Tackles that go beyond the rules of a game and deliberate
assaults in the course of organised sports have been held unlawful: Bradshaw, confirmed in Brown.
Gross negligence manslaughter requires a duty of care by D towards V - D must either be recklessly
indifferent to an obvious risk to V's health, or foresee the risk and decide to run it: Stone and
Dobinson, approved by HL in Adamako. Unlikely to be relevant to John, but some candidates may
argue a case for its application to Lisa.

INVOLUNTARY MANSLAUGHTER

Definition: An unlawful killing where the defendant does not have the intention, either direct or
oblique, to kill or to cause GBH.

Ways of Committing Involuntary Manslaughter

• Unlawful act manslaughter

• Gross negligence manslaughter

• Reckless manslaughter

UNLAWFUL ACT MANSLAUGHTER

The elements:

• D must do an unlawful act

• The act must be dangerous on an objective test

• The act must cause death

• The S must have the required mens rea for the unlawful act.

Unlawful Act:

• Must be unlawful (Lamb)

• A civil wrong is not enough (Franklin)

• It must be an act; and omission is not sufficient (Lowe)

In many cases the unlawful act will be some king of assault but any criminal offence can form the
unlawful (arson, criminal damage, burglary).

Dangerous Act:

• An objective test – would a sober and reasonable person realise the risk of some harm?
(Church)

• The risk need only be of some harm – not serious harm (Larkin)

• The act need not be aimed at the final victim (Mitchell)

• An act aimed at property can still be such that a sober and reasonable person would realise the
risk of some harm (Goodfellow)

• There must be a risk of physical harm; mere fear is not enough (Dawson).

• Where a reasonable person would be aware of the victim’s frailty and the risk of physical harm
to him, then D will be liable (Watson).

Causes Death

• Normal rules of causation applu; the act must be the factual and legal cause of death (Dalby)

• An intervening act such as the victim self-injecting a drug breaks the chain of causation
(Kennedy)

• merely preparing the injection is not a cause of death. V’s self-injection breaks the chain of
causation. The D can only be guilty if he was involved in administering the injection.

• D may be liable for gross negligence manslaughter instead (Dias) where it can be shown that D
owed V a duty of care.

Mens Rea

• D must have mens rea for the unlawful act but it is not necessary to prove that D foresaw any
harm from his act (Newbury and Jones)

GROSS NEGLIGENCE MANSLAUGHTER

Elements:

• The existence of a duty of care towards the victim

• A breach of that duty of care which causes death

• Gross negligence over the risk of death which the jury considers to be criminal.

Duty of Care:

• D must owe V a duty of care (Adomako)

• The civil concept of negligence applies (Adomako)

• Covers wide range of situations, e.g. maintaining a gas fire (Singh)

• May even cover a duty not to supply drugs (Rogers)

• The fact that V was party to an illegal act is not relevant (Wacker)

Breach of duty:

This can be by an act or omission

Gross Negligence

• Beyond a matter of mere compensation and showed such disregard for the life and safety of
others as to amount to a crime (Bateman)

• Conduct so bad in all the circumstances as to amount to a criminal act or omission (Adomako)

Risk of Death

There must be a risk of death from D’s conduct, it is not enough to show a risk of bodily injury or injury
to health (Adomako; Misra and another).

RECKLESS MANSLAUGHTER

Lidar (2000) – CA held that there was a third limb of involuntary manslaughter. The court said that there
was nothing in Adomako to suggest that subjective recklessness manslaughter had been abolished.

D causes V’s death (there is no requirement that D owed V a duty of care.

D must have foreseen a risk of serious injury or death occurring. (Cunningham recklessness)

D must have assessed that risk as at least highly probable to occur.

REFORM

UNLAWFUL ACT

Problems:

• Covers a very wide range of conduct

• Death may be an unexpected result; if the same act resulted in minor injury, the D would only
be liable for the offence.

• A D who did not realise there was risk of any injury is still guilty because of the objective nature
of the test.

Reform:

Under the LC recommendations in their 2006 report (the three tier homicide) manslaughter would
cover:

1. Killing another person through gross negligence; or

2. (Criminal Act Manslaughter) Killing another person:

a. Through the commission of a criminal act intended by the D to cause injury; or

b. Through the commission of a criminal act that the D was aware involved a serious risk of
causing some injury.

More serious situations (where D intended to cause injury or a fear or risk of injury and was aware that
his or her conduct involved a serious risk of causing death) would be classed as second degree murder.

GROSS NEGLIGENCE MANSLAUGHTER

Problems:

• The test is circular, as the jury is directed to convict of a crime if they think that the conduct was
criminal.

• The test may lead to inconsistent verdicts, as it depends on what different juries think

• The civil test for negligence should not be used in criminal cases: the purpose of the two
branches of law is quite different.

Reform:

In their 2006 report, the LC recommended that there should be gross negligence manslaughter which
would be committed where:

• A person by his or her conduct causes the death of another;

• A risk that his or her conduct will cause death.. would be obvious to a reasonable person in his
or her position;

• He or she is capable of appreciating that risk at the material time; and

• …his or her conduct falls far below what can reasonably be expected of him or her in the
circumstances.

BUT: they recommend keeping the rule that GNM can be committed even when D was unaware that his
or her conduct might cause death but P must prove that the D is capable of appreciating that risk at the
material time (preventing those with mental disabilities or younger children being convicted.

RECKLESS MANSLAUGHER

In their 2006 report the LC rexcommended that the offence be abolished as a separate category. In
more serious cases of recklessness (where there was an intention to cause a fear or risk of injury) would
amount to second degree murder and in less serious cases, most cases would be covered by GNM as D
would be hard pressed to deny that he or she was well aware of the risk of his or her conduct killing
someone.

ACTIVITIES:

Raul and Christiano are standing in a queue at a bus stop when they begin arguing with one
another. Raul pushes Christiano who staggers backwards and collides with Margaret, an 83 year
old lady. Margaret falls backwards onto the pavement. She is injured and in pain. Margaret is
taken to hospital where x-rays reveal that she has broken her hip. Doctors agree that the injury
is made worse partly because she suffers from osteoporosis (a disease which makes her bones
unusually brittle). Although Margaret is elderly, Doctor Smith decides to operate in order to
allow Margaret any chance of being able to walk in future. A few days later, Margaret is
recovering slowly from the operation when she develops a secondary infection. Doctor Smith
prescribes Margaret penicillin but she is allergic to the drug and dies.

Discuss the potential criminal liability of both Raul and Doctor Smith for the death of Margaret.
[25]

Define involuntary manslaughter

For Raul

Discuss the potential offence of murder and dismiss it for lack of the relevant mens rea

Define Unlawful and dangerous act/constructive manslaughter – Church; Newbury & Jones; Mitchell;
Goodfellow; Dalby; Carey etc

Discuss the potential offence of unlawful act/constructive manslaughter, discuss and apply to the facts:
• The act must be criminal/a push, though trivial, is a battery – Mitchell; Carey
• Is it ‘dangerous’? – the facts suggest it may be as even the primary victim Christiano may fall and
suffer ‘some harm’ in the view of a jury
• Discuss whether this could therefore amount to foresight of inflicting grievous bodily harm
recklessly and a potential s.20 AOPA offence
• Apply the principle of transferred malice - Latimer – and apply to Margaret’s injury
• Has it made a factual and more than minimal contribution to Margaret’s death? – Yes?

CAUSATION
Explain the principles of causation:
• Factual causation – White
• Legal causation – Pagett;
• ‘de minimis’ principle – Kimsey
• ‘Take your victim as you find them’ – Hayward; Blaue
• ‘novus actus interveniens’ and medical treatment – Jordan; Smith; Cheshire etc

Has the medical negligence broken the chain of causation? Arguable – discuss and apply Jordan; Smith;
Cheshire to a reasoned conclusion

Discuss whether the medical negligence has broken the chain of causation in all/any of the above
alternatives? Arguable – discuss and apply – Jordan; Smith; Cheshire to a reasoned conclusion noting

that, as a matter of policy, the courts are reluctant to allow even negligent medical treatment to ‘break
the chain of causation’

Gross negligent manslaughter – Adamako; Litchfield; Wacker; Misra & Srivastava
Discuss the potential offence of gross negligence manslaughter, discuss and apply to the facts:
• Is a duty of care owed to Christiano (and Margaret)? Adamako; Donoghue v Stevenson
• Has the duty of care been broken? Yes, Christiano is the victim of a battery
• Is Raul’s conduct so far below that to be expected of a reasonable person in those
circumstances as to amount to a crime? Technically yes in one way as he has committed a
crime
• Is there a risk of death? (This is debateable) There was clearly a very small risk of death
and Margaret has eventually died but would a jury think it existed when Raul pushed
Christiano?
• As above, argue to a reasoned conclusion

Reckless manslaughter – Pike; Lidar etc
Discuss the potential offence of reckless manslaughter, discuss and apply to the facts:
• Did Raul foresee a risk of death or serious harm to Christiano? (unlikely, just a push)
• Probably dismiss a reckless manslaughter charge

Explain the principle of ‘transferred malice’ – Latimer
Discuss and apply the principle of transferred malice which is relevant in each case and conclude that
Raul is potentially liable for the harm caused to his unintended victim Margaret – Latimer

(Most credible would probably be unlawful act manslaughter)

For Doctor Smith
Discuss the potential offence of gross negligence manslaughter, discuss and apply to the facts:
• Is a duty of care owed to Margaret? Yes – Adamako; Donoghue v Stevenson
• Has the duty of care been broken? Perhaps, depending on Dr. Smith’s knowledge & conduct
• Is Dr. Smith’s conduct so far below that to be expected of a reasonable doctor in those
circumstances as to amount to a crime? Arguably yes. Up to the jury
• Is there a risk of death? Doctors must be aware of this potentially fatal allergic reaction. Up to
the jury?
• As above, argue to a reasoned conclusion

MURDER REFORM

Law Commission’s Proposals

Murder should be divided into 2 separate offences:

• First degree murder (D intends to kill or intends to cause serious harm and was aware that his or
her conduct posed a serious risk of death)

• Second degree murder (where D intended to do serious injury, but was not aware that there
was a serious risk of death).

Mandatory life sentences would only apply to first degree murder.

Government’s response:

July 2008

Rejected the LC proposal of completely reforming murder and so do not address the problems of no
intent to kill, the difficulty of the meaning of intention, the lack of a defence of duress and the use of the
mandatory life sentence.

The only area where the Government accepted that reform is needed is the lack of a defence for those
who use excessive force in self defence. For this the Government are proposing a partial defence of
‘killing in response to a fear of serious violence’ which replaces provocation.

Euthanasia

Also known as mercy killing. Where D kills V because V is suddering through an incurable illness. Quite
often, D is the spouse or partner.

Under the present law, if D kills V then D is guilty of murder, even if V has begged D to do the killing.
(Pretty). This means that D will be sentenced to life imprisonment with a minimum term of 15 years
before D can be considered for release on licence.

As such a defendant is unlikely to be a dangerous person; surely there should be more discretion in the
sentence that the courts impose.

Practice Essay

Discuss whether the common law governing the offence of murder is satisfactory or is in need of
reform by Parliament.

Define the offence of murder and explain the elements of the actus reus (unlawful killing/reasonable
creature in being) and mens rea (Define ‘express malice’ and ‘implied malice’).

Actus Reus
• Discuss whether a killing may be lawful eg self defence
• Discuss whether a foetus is not a ‘reasonable creature in being’ and comment on the morality of
that stance
Mens Rea
• Explain that it is a crime of specific intent.
• Discuss the difficulty in practice for the prosecution in proving what was the defendant’s state of
mind
• Refer to different aspects of intention – direct/oblique, but being clear it remains a subjective
concept.
• Discuss the distinction between intention and foresight of consequences – Moloney
• Explain the developments that have occurred explaining the concept of oblique intent and cite
relevant cases eg Moloney; Hancock & Shankland; Nedrick;; Woollin; Re A; Mathews & Allyeyne
• Discuss the omission of probability from the Moloney Guidelines and the significance of the
refinements produced in Nedrick and Woollin
• Discuss the difficulties for jurors inherent in distinguishing between degrees of probability
• Appreciate the fact that foresight of intention is not the same as intention but may be used in
conjunction with S.8 Criminal Justice Act 1967 – evidence from which intention may be inferred
by the jury – Moloney; Nedrick; Woollin

OTHER AO2 COMMENTS
• Discuss the need to distinguish between murder and manslaughter by reference to the gravity
of the offence in terms of blameworthy states of mind and the sentence that attaches ie the
mandatory life sentence for murder is often unfair when D only intended to cause injury, not
death.
• Discuss the proposition that judges are often happy to allow juries to decide whether a
consequence was intended by relying upon their ‘common sense’ judgement on the evidence
• Discuss whether juries should be asked to make such judgements on morally reprehensible facts
in murder trials as in Moloney, Hancock, Woollin etc
• Discuss the euthanasia debate and the decision in Pretty

REFORM

• Refer to the Law Reform (Year and a Day Rule) Act 1996
• Refer to the Law Commission’s 2006 Consultation Paper and the Governments Responses in
2008
• Discuss the Law Commission’s Consultation Paper No 177 proposing a system of degrees of
homicide similar to the system in the USA
• Discuss, for example, the proposed three tier structure for homicide and proposed changes to a
classification of first and second degree murder
• Discuss the proposed codification of intention which suggests putting the ‘virtual certainty’ test
in Woollin into statutory form
• Discuss the restrictive effect of the mandatory death sentence and the way that the new
proposals would offer judges flexibility in respect of sentencing were they to be implemented

NON FATAL OFFENCES REVISION NOTES

GBH s.20

ABH s.47 GBH s.18

NFO’s

Battery Assault

ASSAULT: COMMON LAW BUT CHARGED UNDER S.39 CJA 1988

BATTERY: COMMON LAW BUT CHARGED UNDER S.39 CJA 1988

ASSAULT OCCASIONING ACTUAL BODILY HARM: S.47 OAPA 1861

MALICIOUS WOUNDING OR INFLICTING GRIEVOUS BODILY HARM: S.20 OAPA 1861

WOUNDING OR CAUSING GRIEVOUS BODILY HARM WITH INTENT: S.18 OAPA 1861

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