Criminal law

• Automatism 


  was it external, if yes then automatism can be used (R V T)

  • Definition- an act done by the muscles without any control by the mind such as a spasm, reflex action or a convulsion, or an act done by a person who is not conscious of what they are doing such as an act done while suffering from concussion or sleepwalking
  • Ar- not voluntary
  • mr- not met
  • Total disruption of voluntary control- reduced or partial control of one’s actions is not sufficient to amount of automatism (not available for attorney general reference no 2)
• Automatism p2


  Was the automatism self induced

  • If no can be used for all offences
  • If yes, was D reckless as to getting into an automatic state. if no, defence can be used. if yes, then defence cannot be used for basic intent defences (R V Hardie)
  • If defence is successful, then no sentence is required
• Intoxication

  Voluntary- in Majewski HL confirmed it’s only available available to specific intent offences (s18, murder, robbery, theft) and the test is D would need to prove he was unable to form the necessary MR, but he may still be convicted of a lesser offence where recklessness would suffice. If MR is formed before intoxication defence will fail (R V Gallagher)
• Intoxication

  Involuntary

  available to all crimes, can be through being spiked, taking drugs prescribed by a doctor, taking non-dangerous drugs prescribed in a non-dangerous way. Argument is that D didn’t realise strength of drink/drug won’t work (Allen)
• Loss of control

  s54-56 coroners and Justice act 2009

  • Acts or omissions in killing resulted from a loss of self-control, no need for it to be sudden s54(2) but any lapse of time between the trigger and the killing will have an effect on if the defendant did lose self-control at the time of killing. Call be revenge (Ibrams and gregory)
  • loss of self-control had a qualifying trigger s55(2), fear of serious violence against the defendant or anger trigger, things said or done if extremely grave character causes the defendant to feel seriously wronged. Or combination of both.
• Loss of control p2

  Degree of tolerance and self restraint- would a person of the defendants same sex and age with a normal degree of tolerance and self restraint have acted in the same or similar way

  • Restrictions- things settle down can’t relate to sexual infidelity, in Clinton CA decided where sexual infidelity isn’t the only trigger the defence is allowed
  • Verdict- reduces charge from murder to voluntary manslaughter= discretionary life sentence
• theft

  Theft act 1968

  • Definition s1(1)- a person is guilty of theft if he dishonestly appropriates property belonging to another with the intention to permanently deprive
  • Appropriation s3(1)- any assumption of the rights of ownership, has the defendant used, damaged or destroyed the property
  • Property s4(1)- includes money and all other property (R V Kelly and Lindsey body parts aren’t property, wild plants and animals can’t be stolen) real or personal including things in action or other tangible property
• Theft p2

  Theft act 1968

  belonging to another s5(1)- their ownership, possession or control over the property, can be in your possession but not yours if given for a specific purpose/obligation (Davadge V Burnett) or given by mistake obligated to return (R V Gills)

  • MR, dishonesty s2(1)- a person is not dishonest if: s2(1)(b) he believes he has the right to deprive, he believes he would have the owners consent, he believes the owner can’t be found through reasonable steps
• Theft p3

  dishonesty- If no to those, do Ivy V Genting casino test: look at the defendants knowledge and circumstances, what would an ordinary decent person think of the defendants behaviour

  • intention to permanently deprive- Treating/disposing of property as your own or returning it with a reduced value (R v Loyd)
  • Max sentence, 7 years
• Robbery


  Theft act 1968

  Definition, a person is guilty of robbery if he steals and immediately before/at the time of doing so and in order to do so uses force against any person or puts or seeks to put any person in fear of being then in their subject to force s8(1)

  • Steals- establish all of thleft first, no robbery if there’s no theft
  • Immediately before/at the time of doing so- force/threat of it must be applied before/at the time of theft
  • In order to do so- force must be applied with the purpose of facilitating theft
• Robbery


  Theft act 1968

  • Uses force/seeks to put people in fear of force- violence or threat of it is needed (R v West), it can be small and it can be against anyone as long as it’s in order to steal
  • Being then and there subject to force- the force must be immediate, no time limit though, jury decides, it doesn’t matter if the victim was scared or not just that the defendant intended to do so (R v Dpp, B v Dpp)
  • MR- men’s for theft must be proven, then defendant must’ve had intention to use force
  • Max sentence- life
• Self-defence


  S76- criminal justice and immigration act 2008

  Was it necessary to use force- was it a genuine belief held by the defendant, from the defendants perspective (subjective test) R V Gladstone Williams. If relevant discussed, was the defendant mistaken due to intoxication R V O’Grady s76(5) drunken mistake not permitted, was it a pre-emptive strike, was D the aggressor can initiate as long as attack is imminent (R v Bird
• Self-defence p2


  S76 criminal justice and immigration act 2008

  • Was force proportionate- objective test, would a reasonable person think force was necessary, The defendant may not be able to weigh up to a nicety the exact level of force necessary, what did D honestly and instinctively think was necessary s76(7) Can’t act after danger has passed R v Hussain
• Self-defence- homeowner cases

  Home owner Cases, s43 crime and courts act 2013.

  • Force must be applied whilst in a building that’s a dwelling, D must not be a trespasser D must believe V is a trespasser
  • Force use that is grossly disproportionate will fail the defence. Force that disproportionate May be reasonable.
  • Jury will consider, shock of intruder, time of day, kids in the house, weapons used
• Diminished responsibility

  s2(1) homicide act 1997 as amended by s52 coroners and Justice act 2009

  D must be suffering from an abnormality of mental functioning, defined in bryne as the D’s mental functioning is so different that the reasonable man would consider abnormal

  • Recognised medical condition, abnormality must have risen from a recognised medical condition, requires a medical diagnosis. Can be anything from: PTSD (Bradley), depression (Seers), postnatal depression (Reynolds), premenstrual tension (English)
  • loyd- impairment need not be total but must be more than minimal/trivial
• Diminished responsibility p2

  s2(1) homicide act 1997 as amended by s52 of the coronation Justice act 2009

  • Abnormality must’ve substantially impaired the defendants ability to understand the nature of his conduct, form rational judgement or exercise self-control
  • Abnormality must provide an explanation for the defendants conduct
  • Verdict produces charge from murder to manslaughter with a discretionary life sentence
• diminished responsibility- intoxication rules

  if intoxication causes abnormality defences allowed,

  • intoxication causing a temporary effect on the mind defence not allowed (Tandy),
  • if the defendant has a pre-existing mental disorder in intoxication doesn’t stop them using the defence they must prove the abnormality made them act not the drink,
  • Alcohol dependency itself may be an abnormality if drinking is involuntary (woods)
• Duress

  Hussain rules

  • threat must be of death/serious injury (shayler)
  • Criminal conduct must’ve been caused by threat- threat and the action must connect (R v Cole)
  • Threat must’ve been directed at- D, D’s family, or a person who is safety they regard themselves responsible for
  • Was there no invasive action they could’ve taken- was there no safe exit they could’ve taken (R v Gill) e.g. go to police
  • Did the defendant act reasonably- Graham test: was d compelled to act as they believe the threat, what is sober person of reasonable firmness with the same characteristics act in the same way
• duress


  Defence can’t work if the defendant voluntarily associates with criminals e.g. become a member of a gang (R v Hussain

  • Full defence is successful
• Gross negligence manslaughter

  Ademenko established for this offence to apply:

  • The defendant must owe the victim of duty of care, normal rules of negligence apply, duty can arise from: relationship (parent to child- gibins and procter, doctor to patient), contractual duty (Pitwood), special relationship, volunteer, duty arising from the creation of a dangerous chain of events (Miller)
  • Is there a breach of that duty- act/omissions, what’s the defendants conduct less than what a reasonable ? Would do
  • Did the breach cause death- causation
• Gross negligence manslaughter p2

  Is there a serious and obvious risk of death- R v Singh

  • Gross negligence is so reprehensible as to be considered truly reprehensible, mrivisa v stravissa, only a risk of death will be sufficient
  • Sentence- life imprisonment
• Unlawful act manslaughter

  There must be an unlawful act- this must be a crime a civil won’t suffice (R v Franklin) establish the unlawful act in full

  • The act must be dangerous- Church test, the act must be such that all sober and reasonable people would inevitably recognise the other person to be at risk of some harm albeit not the serious harm caused
  • The act must be the substantial cause of death- doesn’t need to be the sole cause of death so long as it is not trivial (combination of causes) R v Kennedy + causation
  • Mr- for original offence must be established, no additional mr
  • max=life
• Malicious wounding/infliction of GBH

  S20/S18 offences against the person act 1861

  • Wound Ar- unlawfully and maliciously wounding, wound was defined in JCC V Eisenhower as a break in the continuity of all layers of the outer skin, internal bleeding and broken bones don’t suffice (woods)
  • GBH AR- unlawfully inflicting GBH, GBH was defined in Saunders as serious harm
  • Causation- the term inflict has been interpreted to mean causing, factual and legal
• Malicious wounding/infliction of GBH

  S18/20 offences against the persons act 1861

  s20 mr- maliciously has been interpreted to mean intention/recklessness (cunning) as to whether some harm might occur, Parmenter established the defendant need only have intended/reckless to some harm albeit not the serious harm caused.

  • s20 sentence- tribal either way offence, Max five years imprisonment
  • s18 MR- specific intent to cause GBH, resist arrest, prevent arrest or recklessness as to causing injury
  • s18 sentence- Indictable offence, max life imprisonment
• Thin skull rule


  Defendant must take his victim as he finds them

  • If a persons injuries are made more serious by some unusual physical or mental condition of the victim, or their beliefs (Blaue) then the defendant is still liable for their injuries
• Transferred malice

  Defendants MR is transferred from the intended victim to the actual victim (Mitchell)

  • Pembliton- offence must be the same nature for the rule to apply
• Novus Actus interveniens

  Chain of causation can be broken by some new/independent event, then D would no longer be responsible for the consequences

  • This could be an act of a third-party, something unforeseen happening or V’s own actions
  • Jordan- wrong administration of a drug in hospital (he had been healing well from initial wounds) normally medical treatment doesn’t break the chain of causation
  • Williams- V jumped from a moving car because it was alleged D was trying to steal his wallet, did break chain of causation because it was an unreasonable reaction
• Attempts

  Criminal attempts act 1981

  s1(1) if with the intent to commit an offence to which this section applies, a person doesn’t act which is more than meerly preparatory to the commissions of the offence then he is guilty of attempt

  • AR- that D doesn’t act that’s more than meerly preparatory to an offence R v white
  • MR- with intent to commit the offence, intent is level of MR nothing less R v Millard and Vernon
• Attempting the impossible

  Attempting the impossible s1(2)- a person is guilty of attempting to commit an offence even though the facts are such that the commission of the offence is impossible eg R v shivpuri guilty of attempting to deal drugs even though the substance turned out to be vegetable matter, he believed it was heroin)
• Duress of circumstances


  Threat of harm that comes from surrounding circumstances or a naturally occurring event

  • Threat must be effective at the time of crime (Mulally) and must be a threat of physical harm or defence will fail, essentially the same rules from Hussain
  • R v Conway- D can use defence even if there’s no actual threat, D is judged on the facts as he honestly and reasonably believe them to be
• Battery

  S39 criminal justice act 1988

  • AR- application of unlawful force against the victim irland v Burstow, force can be just touch (Collins V Wilcock), touching someone’s clothes is equivalent to touching a person (Thomas), application need not be direct it can be an indirect act (DPP v K), throwing a drink over someone could amount of battery (savage)
  • Causation- factual, but for test (R v Padgett), legal, substantial and operative (catto)
  • MR- intention to apply and lawful physical force or being reckless as to whether such force applied (Venna)
• Battery p2

  • Sentence- summary offence, six months in prison and and/or fine up to £5000
  • Extra stuff- can be a continuing act, Fagan v met police, actions become battery at the moment intention is formed
  • Examples- pushed, slapped, spat, severe bruising, loss of consciousness, minor cuts
• Assault occasioning actual bodily harm

  s47 offences against the person act 1861

  • AR- is it an assault or battery based offence? Establish original offence in full
  • Occasioning- was it the original offence that occasioned the harm + causation
  • ABH definition- assault or battery that causes ABH to the victim and the defendant either intends or is subjectively reckless as to whether victim fears unlawful force or is subject to unlawful force
  • Miller- ABH is any harm/injury that interferes with the health/comfort of victim
  • Chanfook- any injury not so trivial as to be wholly insignificant
• Assault occasioning actual bodily harm p2

  MR- defendant need only MR for original offence

  • Sentence- tribal either way, max 5 years imprisonment
  • Extra stuff- T v DPP loss of consciousness held to be ABH. DPP v Smith, cutting hair can be ABH, physical pain is an a pre-requist of ABH
  • Examples- victim tries to escape following assault and hurts themselves, assault/battery causes psychiatric injurys
• Insanity

  Criminal procedure (insanity and unfitness to plead) act 1988

  • Definition- R v M’naughten ‘D must be labouring under a defective reasoning due to a disease of the mind and must either not know the nature and quality of the act they are doing or not know what they are doing is wrong
  • M’naughten rules:
  • Defect of reasoning: D’s powers of reasoning must be substantially impaired, absent minded isn’t enough (R v Clarke)
• Insanity

  Criminal procedure (insanity and unfitness plead) act 1998

  • Disease of the mind- legal term not a medical one, must be a physical disease brought on by an internal factor, need not be permanent it can be transient and intermittent: kemp- hardened arteries, Bratty- epilepsy, Hennessey- diabetes, Burgess- sleepwalking
  • Not knowing nature/quality of act or not knowing they’re doing wrong, can be because D is in a state of unconsciousness/impaired consciousness or D is conscious but doesn’t know what they’re doing is legally wrong. R v Johnson didn’t know, R v windle did know
• Insanity

  Criminal procedure (insanity and unfitness to plead) act 1998

  • Verdict- not guilty by reason of insanity, judge can impose hospital order, supervision order or absolute discharge
• Assault


  S39 criminal justice act 1988

  • AR- an act that causes the V to apprehend immediate unlawful violence, (Ireland v Burstow) silence can be considered assault, (constenza) words are sufficient for assault, (Smith V chief superintendent of Woking police station) actions can amount to assault, (Tuberville v Savage) words can prevent assault if they make clear V won’t suffer immediate harm
  • MR- intentions/subjective recklessness as to cause v to apprehend immediate and lawful violence
• Assault

  S39 criminal justice act 1988

  • Sentence- summary offence, 6 months imprisonment
  • Extra stuff: must be an act, an omission isn’t sufficient. only needs to have caused fear, no force needs to be applied. Lamb victim must apprehend violence (fear it’s coming)
• Murder

  Common law offence, never defined by statute

  • Definition- lord coke defined murder as the unlawful killing of a reasonable creature and being under the peace with malice aforethought express or implied
  • AR- D killed (dead when brain-dead Malcherek), v was a reasonable creature in being (not a foetus Attorney General reference no3), under the peace, killing was unlawful (not in self-defence),
  • AR- omissions, failure to act can be murder if they owe the v a doc: relationship (parent child, Gibins and Procter), contractual duty (Pittwood), creation of a dangerous chain of events (Miller)