criminal law

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murder

"Murder is when a man of sound memory and of the age of discretion, unlawfully killeth within any county of the realm any reasonable creature in rerum natura under the king's peace, with malice aforethought, either expressed by the party or implied by law….."

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actus reus of murder

  • The defendant did the act or omitted to do a legally recognised duty. (an act or omission)

  • The act was deliberate.

  • The act was unlawful. (As opposed to killing in self defence).

  • The act was a significant cause of death.

  • The death was of a person in being.

The actus reus for both murder and manslaughter is the same. The difference between the two crimes is found in the mens rea.

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mens rea of murder

Malice aforethought’ is the same as ‘Intent’. Vickers (1957)

Therefore intention is a key to proving murder.

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GBH and murder

GBH means really serious bodily harm.

Cunningham attacked the deceased in a public house and hit him repeatedly with a chair. Cunningham argued that he had not intended to kill. However, there was no doubt that the seriousness of the beating had caused death. The principle of the case was that if Cunningham had intended to cause really serious injury he would be guilty of murder.

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defences to murder

these are "Specific" because they are available only to a charge of murder, "partial" because the defendant is not totally acquitted, simply convicted of manslaughter.

Diminished responsibility S2

The defence is that the killer was suffering from an abnormality of the mind at the time of the crime that impaired the mental responsibility for committing the act or omission.

If accepted, the conviction would be for manslaughter.

Provocation S3

A defendant must show that the actions and behaviour of the dead person was such that any reasonable person would lose control of the mind, and that the loss of self-control was sudden and temporary. R v Richens (1993).

If accepted, the conviction would be for manslaughter.

The defence is not available to a defendant who has time to think and reflect before committing the murder. R v Thornton (1992) CA.

Suicide Pact S4

"Suicide pact" means a common agreement between two or more persons for them all to die. It does not make any difference whether they take their own life, or kill each other.

There must be a settled intention by each party to diein pursuance of the pact.

Suicide is no longer an offence of self-murder at common law, since the Suicide Act 1961.

Where a person, acting in pursuance of a suicide pact between himself and another, kills the other or is a party to the other being killed by a third party, he is guilty of manslaughter.

Needless to say, this is only relevant if one or more of the parties survives the suicide pact.

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manslaughter

Manslaughter can be of two types:-

Involuntary Manslaughter

(a) A person acts with gross negligence and kills another person.

(b) A person kills another person whilst carrying out an unlawful act which would not normally kill or seriously hurt that other person.

Voluntary manslaugher

The defendant pleads successfully the defences of provocation, suicide pact or diminished responsibility.

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non fatal offences

Assault and battery are technically separate offences, originally at common law and now under s.39 of the Criminal Justice Act 1988, but the word "assault" is often used to cover both.

Assault

The actus reus of assault in its narrow sense is an act (or nowadays, words or even silence) by which D causes V to apprehend immediate and unlawful personal violence. It would probably be an assault if D pointed an unloaded gun at V: this was the view expressed by Parke B in R v St George (1840) 173 ER 921, and although it was doubted by Lord Abinger CB in Blake v Barnard (1840) 173 ER 985 it seems to make sense. But V must be aware of a real threat: if he is asleep and unaware of the axe held above his head, or if he knows the gun pointed at him is not loaded, then there can be no assault.

Battery

In DPP v Taylor [1992] 1 All ER 299 Mann LJ said common assault clearly includes the actual use of unlawful force to a person, formerly known as battery. In such cases, he said, the charge should be that D "did assault by beating ...". The force applied need not be serious - it need be no more than the slightest touch and P need not even be aware of it - but the law is properly reluctant to concern itself with trifles.

Mens rea

The mens rea of common assault can be intention or recklessness. For battery, it is an intention to apply unlawful physical force to another, or recklessness that such force may be applied. For assault in the narrow sense, it is intention or recklessness that another person may apprehend the immediate application of unlawful force, though arguably the intention to apply that force should also suffice.

ABH

The most common of the several aggravated forms of assault is assault occasioning actual bodily harm, defined in s.47 of the Offences Against the Person Act 1861, triable either way and carrying a sentence of up to five years' imprisonment.

GRIEVOUS BODILY HARM

According to the House of Lords in DPP v Smith [1960] 3 All ER 161, "grievous bodily harm" means no more and no less than "really serious injury". There is no more rigorous distinction than this between actual and grievous bodily harm, but the 1994 charging standards (which are only guidelines, and not legally binding) give as examples of grievous bodily harm any injury resulting in permanent disability, permanent loss of any sensory function, or significant permanent visible disfigurement; broken or displaced limbs or bones (including fractured skull, compound fractures, broken cheek bone, jaw, ribs &c); injuries causing substantial loss of blood, usually requiring a transfusion; and injuries (physical or psychiatric) resulting in lengthy treatment or incapacity.

mens rea

There are two versions of grievous bodily harm. The basic offence under s.20 of the Offences Against the Person Act 1861 requires an intention to cause some bodily harm (not necessarily serious), or subjective foresight that some bodily harm may be caused; the fact that a reasonable person might have foreseen such a risk is not enough.

WOUNDING

The essence of wounding is that there should be a break in "the whole skin"; a simple fracture that leaves the skin intact is not sufficient, though it may constitute grievous bodily harm.

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evaluation of the law

  • The 1861 Act is nearly 150 years old, and some of its language (e.g. "maliciously", "grievous") is seriously out of date. "Bodily harm" includes mental harm, and even lawyers and judges say "assault" when they mean battery.
  • The maximum sentence for s.20 grievous bodily harm (five years' imprisonment) is the same as that for s.47 actual bodily harm, even though the former is by definition more serious. This is illogical: either the sentence for GBH should be increased, or that for ABH should be reduced, or the two offences should be merged.
  • A number of cases (e.g. Burstow, Dica) show how the judges have been able to adapt the non-fatal assault offences to meet modern requirements. Arguably, however, cases such as Brown show how the judges have sometimes extended the offences inappropriately.
  • The boundaries between battery and actual bodily harm (more than trifling and transient), and between actual and grievous bodily harm (really serious injury), are very vague even with the assistance of the CPS charging standards. But is it possible to do any better? The Law Commission thought not, and suggested only "injury" and "serious injury".
  • Wounding is an unnecessary and very wide offence - any wound (except the most trivial) amounts to either actual bodily harm or grievous bodily harm and could (should?) be charged as such. Moreover, the inclusion of grievous bodily harm and wounding in the same sections of the 1861 Act suggests (wrongly) that they are equivalent.
  • The mens rea for several offences does not match the actus reus. A person who does not foresee any harm (but foresees apprehension or a mere touch) can be convicted of assault occasioning actual bodily harm (Savage); a person who foresees only slight injury can be convicted of inflicting grievous bodily harm. The mens rea for s.18 GBH or wounding, which carries a possible life sentence, could be no more than an intention to escape plus foresight of some (minor) injury.
  • Following Spratt, all the assault offences require at least subjective recklessness: the fact that the defendant should have considered the risk is not enough. Some people find this quite acceptable - defendants should not be punished for mere stupidity - but others do not.
  • Consent is not recognised as a defence to any assault causing actual bodily harm or worse, subject to the recognised exceptions. Many people think "victims" should be allowed to decide for themselves what injuries they are prepared to suffer. In any case, the "recognised exceptions" are anomalous: for example, boxing is an exception but sadomasochism is not.
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cases on murder

Attorney-General's Reference (No.3 of 1994) [1996] 2 All ER 10, CA A man D stabbed his pregnant girlfriend V in the abdomen; she gave birth prematurely, and the baby B died some four months later as a result of its immaturity. D was acquitted of murder at the judge's direction, and the Attorney-General referred various points of law to the Court of Appeal. Lord Taylor CJ said the elements of the actus reus of murder are that the defendant did an act, that was intentional rather than accidental, that was unlawful, that was a substantial cause of the death of a person in being, and (as the law then stood) that the death occurred within a year and a day of the act. The mens rea is that at the time of the act the defendant intended either to kill or to cause really serious injury to the victim or (subject to the extent of transferred malice) to some other person. The House of Lords subsequently reversed Lord Taylor's judgment as to the applicability of transferred malice in this case, and disagreed with his suggestion that the foetus could be regarded as part of the mother, but this definition of murder appears to be sound.

Philosophically, it may be wrong to speak of "causing" death, since everyone will die eventually. The courts recognise this fact, and consider it equally culpable to accelerate death. Mercy-killing, in which a person brings forward the death of another who is dying slowly and painfully, is no different in law from any other deliberate murder.

R v Dyson [1908] 2 KB 454, CCA A man D seized his baby son, threw him down, and beat him until the child was unconscious, fracturing his skull; some months later died from that injury. Lord Alverstone said "... the proper question ... was whether the prisoner accelerated the child's death by the injuries which he inflicted ... the fact that the child was already suffering from meningitis from which it would in any event have died before long would afford no answer." R v Adams [1957] Crim LR 365, Devlin J A doctor was charged with "easing the passing" of a number of elderly patients (some of whom had left bequests to him in their wills) by giving drugs calculated to hasten their deaths. Devlin J directed the jury that a doctor has no special defence, but added that "he is entitled to do all that is proper and necessary to relieve pain even if the measures he takes may incidentally shorten life".

Death may be caused directly or indirectly. In particular, where a victim dies while attempting to escape from a threat, the death may be laid at the door of the person making the threat.

The Harlot's Case (1560) 1 Hale PC 432 A prostitute D left her newly-born baby in an orchard and covered it over with leaves. A kite struck the child with its talons and it died. D was convicted of murder, since she had intended the child's death, and executed. R v Hayward (1908) 21 Cox CC 692, Ridley J D threatened his wife with violence and chased her out of the house, where she died from an unsuspected medical condition aggravated by violent exercise and fright. Ridley J told the jury that death from fright alone, caused by an illegal act such as a threat of violence, was enough to sustain a charge of manslaughter. R v Mackie (1973) 57 Cr App R 453, CA D threatened his three-year-old stepson with a severe thrashing for some minor misbehaviour. The boy tried to run away but fell downstairs, dislocated his neck, and died. D was charged with manslaughter, and his conviction was upheld by the Court of Appeal. The judge had put four questions to the jury: Was the boy in fear of D? Did that fear cause him to try to escape? Was that fear well- founded? Was it caused by D's unlawful conduct, allowing for the fact that D was in loco parentis and could lawfully administer reasonable punishment? These were the right questions, and the jury had evidently answered each of them affirmatively. R v Corbett [1996] Crim LR 594, CA D and V became involved in a fight. V ran away from D, fell in the gutter (probably because he was drunk), and received fatal injuries when he was struck by a passing vehicle. D's appeal against his conviction for manslaughter was dismissed; following Roberts, if V's response had been within the range of foreseeable responses, D's attack was a cause of his death.

The law generally requires a positive act - an omission will not do - but there are a few special "duty" situations where a failure to act may be enough if the mens rea of murder is present.

R v Gibbins & Proctor (1918) 13 Cr App R 134, CCA G and his mistress P were convicted of the murder of G's seven-year-old daughter Nelly; they had starved the child to death and the jury found this to have been their intention (though P, who hated Nelly, was clearly the moving force). The Court of Criminal Appeal upheld the convictions: where there is the duty to act, failure to do so can lead to liability even for murder if the necessary mens rea is present. Airedale Health Authority v Bland [1993] 1 All ER 821, HL A young man was badly injured in the crush at the Hillsborough football ground, and was taken to hospital. Some eighteen months later he was still in a "persistent vegetative state" and the doctors (with the agreement of his family) sought leave of the court to discontinue artificial feeding so that he might die peacefully of malnutrition. Lord Goff said the law draws a crucial distinction between cases in which a doctor decides not to provide treatment which might prolong a patient's life, and those in which he decides actively to bring the patient's life to an end. The former might be lawful if it was no longer in the patient's best interests (and thus no longer the doctors' duty) to keep him alive, but the latter never is. It would be lawful for Bland's doctors not to go on feeding him (an omission), intending him thereby to die, but it would be murder if they took positive steps to bring about the same result. R v Kouao & Manning (2001) unreported A couple DD were convicted of the murder of D1's great-niece Victoria (or Anna) Climbié, aged 8, who died from multiple organ failure caused by hypothermia and malnutrition. Victoria had been subjected to serious physical abuse over a period of almost a year in their "care", but the immediate cause of her death was neglect rather than any positive act on DD's part.

If the prosecution cannot prove a causal link between the defendant's act and the victim's death, there can be no conviction for murder.

R v White [1910] 2 KB 124, CCA Meaning to kill his mother, D put a few drops of cyanide into her lemonade. Soon afterwards, before drinking the lemonade, his mother died of a heart attack. He was acquitted of murder on the grounds that he had not actually caused his mother's death, but convicted of attempted murder. R v Dyos [1979] Crim LR 660, Cautley J D and V were involved in a fight at a community centre, in the course of which D struck V on the head with a brick. V died nine days later, and the pathologist found two substantial head wounds (one caused by D, the other of unknown origin), one or both of which was the cause of death, but from either of which V might have recovered. Cautley J withdrew the murder charge from the jury, saying the Crown had failed to prove beyond reasonable doubt that D's act was the cause of death. R v Armstrong [1989] Crim LR 149, Owen J A drug addict D supplied another man V with heroin and equipment. V (who had already drunk a large amount of alcohol) injected himself with heroin and died shortly afterwards. At D's trial for manslaughter, there was conflicting evidence as to whether the heroin contributed to V's death or whether V would have died from the alcohol alone. The judge directed an acquittal: if the experts were not sure as to the cause of death, he said, the jury could not possibly be. R v Cox (1992) 12 BMLR 38, Ognall J B was an elderly lady, terminally ill and in constant severe pain. With the knowledge and approval of her family, she asked D to end her suffering by hastening her death. D gave her an injection of the lethal drug potassium chloride, and shortly afterwards she died comparatively peacefully. D could not be charged with murder, because B had been cremated before any suspicion arose and the cause of her death could not conclusively be proved, but the jury found him guilty of attempted murder and the judge passed a suspended prison sentence. R v Corbett [1996] Crim LR 594, CA A man D was convicted of manslaughter: following an argument he had head-butted V, causing V to fall into the gutter where he was struck and killed by a passing car. The Court of Appeal affirmed the conviction and said this was a foreseeable result of D's assault.

Even where there is factual causation, there may not be causation in law. If John invites Janet to a party, and on the way to the party Janet is knocked down by a bus, John's invitation is a factual cause of Janet's injuries (because but for the invitation she would not have been on that road at that time). But John's action is not the legal cause of Janet's injuries: the road accident was not a consequence for which John should be held responsible.

Bush v Kentucky (1880) 78 Ky 268, CA (Kentucky) A man D shot and injured a woman V; V was taken to hospital, where she caught scarlet fever from a doctor and subsequently died of the fever. D's conviction for murder was reversed on appeal: although his act had been a factual cause of V's death (because V would not have been in hospital but for the injury) it was not the legal cause. R v Pagett (1983) 76 Cr App R 279, CA Pagett was convicted of manslaughter following the death of his girl friend, who had been hit and killed by police bullets while Pagett was using her as a shield. The court said Pagett's act was not only a factual cause of Gail's death but a legal cause too: it was an unlawful and dangerous act, and the police return of fire was a foreseeable consequence. Airedale Health Authority v Bland [1993] 1 All ER 821, HL A young man was in a persistent vegetative state after being seriously injured at the Hillsborough football ground, and doctors sought leave from the court to discontinue artificial feeding so that he could "die with dignity". Lord Goff said that where a doctor gives lawful treatment (e.g. by administering drugs to relieve pain) the patient's subsequent death (as a side-effect, even if it was a very likely one) will be regarded in law as exclusively caused by the injury or disease.

The defendant's act must have been "an operating and substantial cause" of the victim's death, even though other causes (such as the victim's "eggshell skull") may also have been operating.

R v Malcherek [1981] 2 All ER 422, CA D stabbed his wife; she was taken to hospital and put on a life support machine, but suffered two heart failures. After ten days she had suffered irretrievable brain damage and the doctors switched off the machine. The trial judge in each case directed the jury that D's act could be regarded as the cause of V's death, and Dwas convicted of murder. The Court of Appeal upheld this direction, saying the doctors' decision did not break the chain of causation. R v Ruby (1988) 86 Cr App R 186, CA In a fight outside a night club, D knocked V down with a single blow of his fist and gave a half-hearted kick to his head; V had a very thin skull and died from the kick. D was found guilty of manslaughter - a rare literal application of the "eggshell skull" rule - but the Court of Appeal took into account that a normal person would not have died in such a situation and reduced D's sentence from five to three years' imprisonment.

The chain of causation is most often in issue where injury is followed by medical treatment which in turn is followed by (and perhaps causes) death. Where the medical treatment given is the best available, there can be little argument about such a principle, but it has been extended to cover treatment which is clearly deficient. There are obvious policy considerations here: the judges do not want wrongdoers to escape the consequences of their crimes, nor do they want the courts clogged with endless medical debates as to whether the treatment given in a particular case was the best possible.

R v Jordan (1956) 40 Cr App R 152, CCA D stabbed V, who died from bronchopneumonia in hospital about a week later. D was convicted of murder, but the conviction was quashed by the Court of Criminal Appeal. New evidence not available at the trial indicated that the bronchopneumonia was probably caused by V's unusual reaction to terramycin (which had been given even after his allergy had been discovered) and/or by an excess dose of intravenous fluids. In the light of this evidence, said the Court, the jury should have been given the opportunity of deciding whether death had or had not been caused by the original injury, and would almost certainly have had a reasonable doubt. [This decision has been widely doubted, and is now generally regarded as being applicable only to its own facts.] R v Smith [1959] 2 All ER 193, CMAC Smith and Creed were involved in a fight in barracks, in which Smith stabbed Creed with his bayonet. Creed's friend took him to the first aid post, but on the way he tripped over and dropped Creed twice. When they got there, the medical officer was busy and took some time to get to Creed. Creed died about two hours after the stabbing, but had he been given proper treatment he would probably have recovered. Smith was charged with murder, and his conviction was upheld. The treatment he was given was thoroughly bad and might well have affected his chances of recovery, said Lord Parker CJ, but medical treatment correct or not does not break the chain of causation. If at the time of death the original wound is still an operating cause and a substantial cause, then death can be said to be a result of the wound albeit that some other cause is also operating. Only when the second cause of death is so overwhelming as to make the original wound merely part of the history can it be said that death does not flow from the wound. R v Cheshire [1991] 3 All ER 670, CA D shot V in an argument, and V was taken to hospital where a tracheotomy was performed. Six weeks later, V suffered breathing problems as a result of the tracheotomy scar and died. The hospital had been negligent - perhaps even reckless - in not recognising the likely cause of V's problems and responding to them, but the Court of Appeal said this did not break the chain of causation from the shooting. D's actions need not be the sole or even the main cause of death as long as they contributed significantly to that result; medical negligence did not exclude D's liability unless it was so independent of his acts and so potent as to make his own contribution insignificant. When the victim of a criminal attack is treated by doctors or other medical staff attempting to repair the harm done, it will only be in the most extraordinary and unusual case that such treatment can be said to be so independent of the acts of the accused as to make it in law the cause of the victim's death to the exclusion of the accused's acts. R v McKechnie (1991) 94 Cr App R 51, CA D and others attacked an elderly man V with whom he had a long-standing disagreement, causing him brain damage. While V was being treated in hospital, the doctors discovered he had a stomach ulcer but decided they could not operate safely because of the head injuries. About a month later, the ulcer burst and V died. The Court of Appeal upheld the trial judge's ruling that the original injury had caused the death, and D was found guilty of manslaughter by reason of provocation. He was unlucky: he did not cause the stomach ulcer, and had V not gone to hospital after the attack his ulcer would probably never have been discovered and he would have died anyway. But those who use violence on others must take their victims as they find them. R v Mellor [1996] 2 Cr App R 245, CA D was convicted of the murder of V, who had died in hospital two days after receiving injuries inflicted by D. Dismissing his appeal, Schiemann LJ said that as long as the prosecution proved the injuries inflicted by D were at least a significant cause, if not the only cause, of death, that was sufficient. There is no onus on the prosecution to show the absence of medical negligence.

Even the victim's own actions following an injury do not necessarily break the causal chain.

R v Holland (1841) 174 ER 313, Maule J D assaulted V and injured one of his fingers. V was advised to have the finger amputated but refused, and subsequently died of tetanus; D was held to have caused the death. California v Lewis (1899) 124 Cal 551, Sup Ct (California) D shot a victim who then cut his own throat and died within minutes rather than hours: D's shooting was held to be an "operative and substantial cause" of death, and he was convicted of manslaughter. R v Blaue [1975] 3 All ER 446, CA D stabbed an 18-year-old woman V and punctured her lung. At the hospital, V was told she would need a blood transfusion to save her life, but refused this as contrary to her religious beliefs. She died next day, and D was charged with murder, subsequently reduced to manslaughter by reason of diminished responsibility. His appeal against conviction was dismissed. It has long been the policy of the law, said Lawton LJ, that those who use violence on other people must take their victims as they find them. This principle clearly applies to the mental as well as the physical characteristics of the victim, and the courts will rarely make a judgement as to whether the victim's response was reasonable. R v Dear [1996] Crim LR 595, CA A man D attacked another man V who had allegedly molested D's 12-year-old daughter, cutting him repeatedly and deeply with a Stanley knife. V died two days later and D was charged with murder; his plea of provocation was rejected by the jury and he was convicted. On appeal, D argued that V had in fact committed suicide by reopening his healing wounds, or alternatively by failing to stem the bleeding them after they had reopened themselves. The Court of Appeal said this would not break the chain of causation even if true, and affirmed the conviction.

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cases on malice aforethought

Woolmington v DPP [1935] AC 462, HL D was charged with murdering his wife; he admitted shooting her but claimed the gun had gone off accidentally. The House of Lords overruled the trial judge's direction that it was for D to prove his lack of intent: it is for the prosecution to prove beyond reasonable doubt every element of both actus reus and mens rea, subject to a few (almost all statutory) exceptions. DPP v Smith [1960] 3 All ER 161, HL D was the driver of a car containing stolen property, and a police officer M signalled him to stop. D drove on with M clinging to the car; he accelerated and swerved from side to side to throw M off. M fell into the path of another vehicle and was killed, and D was charged with murder. The trial judge told the jury that if they were satisfied that as a reasonable man D must have contemplated that grievous bodily harm was likely to result, they should convict, and this direction was ultimately upheld by the House of Lords. [The decision was subsequently doubted on the grounds that objective likelihood is not proof of intention, but the intention to cause grievous bodily harm (that is, really serious injury) is still sufficient to establish murder.] R v Cunningham [1981] 2 All ER 863, HL D was convicted of murder after striking his victim repeatedly with a chair, though he claimed he had not intended death. The Court of Appeal and the House of Lords upheld the trial judge's direction that an intention to cause really serious harm was sufficient mens rea to sustain a conviction for murder if the victim dies of his injuries. R v Janjua & Choudhury (1998) Times 8/5/98, CA DD appealed against their conviction for murder, the victim having been stabbed several times with a knife at least five inches long. Affirming the convictions, Curtis J said the judge had directed the jury in terms of an intent to cause just "serious harm", but in the circumstances there was no risk that they would think anything less than "really serious harm" was meant. R v Huntley (2003) unreported A school caretaker was found guilty of murdering two young girls. He claimed their deaths had been accidental, but the jury's verdict indicated that (in their view) he had intended to kill them.

In R v Powell [1998] 1 Cr App R 261, Lord Steyn said the present definition of the mental element of murder results in defendants being classified as murderers who are not in truth murderers. He referred to the assessment of Lord Windlesham (an experienced Home Office minister) that only a minority of convictions for murder are based on an intention to kill, and suggested that the requirement should be either an intention to kill, or an intention to cause serious injury plus foresight of the risk of death.

In 2006 the Law Commission echoed this suggestion, and recommended just two kinds of "first degree murder": killing with the intention to kill, or killing with the intention to cause serious injury and foresight of a serious risk of death.

Note in any case that attempted murder requires an intention to kill: for this offence, an intention to cause grievous bodily harm is not enough.

The defendant's intention is not necessarily the same as his motive. The following cases show a wide variety of motives but a common intention to kill.

R v Dudley & Stephens (1884) LR 14 QBD 273, CCR Three sailors and a cabin boy were shipwrecked and were adrift in an open boat 1600 miles from land. After they had been eight days without food, and six without water, DD decided that their only chance of survival was to kill the cabin boy and eat him, and this they did. Their motive was survival, but their intention was clearly to kill, and they were convicted of murder. R v Gibbins & Proctor (1918) 13 Cr App R 134, CCA D1 and his mistress D2 starved D1's seven-year-old daughter Nelly to death. D2's motive was clearly hatred of Nelly; D1's motive was presumably to keep D2 happy. The jury found that they had both intended to kill, and they were convicted of murder. R v Craig & Bentley (1953) unreported A youth D1 shot and killed a police officer who tried to arrest him during the course of a burglary. His motive was to escape, but his intention was to kill, and he and his accomplice D2 were convicted of murder. R v Brady & Hindley (1966) unreported A young couple kidnapped, tortured and murdered several children for no apparent reason other than ******. They were convicted of murder and sentenced to life imprisonment. [Hindley died in prison in 2003; at the time of writing, Brday is still in custody.] R v Magee (1985) unreported A bomb planted at the Grand Hotel in Brighton during the Conservative Party Conference killed four people and injured many others. The IRA man responsible was convicted of murder and sentenced to life imprisonment. [He was released in 1999 as part of the "Good Friday agreement".] R v Cox (1992) 12 BMLR 38, Ognall J B was an elderly lady, terminally ill and in constant severe pain. With the knowledge and approval of her family, she asked her doctor to end her suffering, and he gave her a lethal injection. He was convicted of attempted murder, there being no conclusive evidence of the actual cause of death.

The defendant may have had a direct intention to kill (or to cause grievous bodily harm) if that was his purpose, or an oblique intention if death or serious injury was an inevitable consequence of achieving some other purpose. He may even hope most sincerely that death will not occur, but still intend to kill in the legal sense. But where a doctor acting in good faith gives proper medical treatment that he knows will probably lead to the patient's death, the jury may decide that he did not intend to kill. This is a matter of semantics (or sophisticated moral philosophy), but can clearly be an important safeguard.

R v Dudley & Stephens (1884) LR 14 QBD 273, CCR Three sailors and a cabin boy were shipwrecked and were adrift in an open boat 1600 miles from land. After they had been eight days without food, and six without water, DD decided that their only chance of survival was to kill the cabin boy and eat him, and this they did. When they cut the boy's throat they had a direct intention to kill, and they were convicted of murder. R v Adams [1957] Crim LR 365, Devlin J A doctor was charged with "easing the passing" of a number of elderly patients (some of whom had left bequests to him in their wills) by giving drugs calculated to hasten their deaths. Devlin J directed the jury that a doctor has no special defence, but added that "he is entitled to do all that is proper and necessary to relieve pain even if the measures he takes may incidentally shorten life". R v Cox (1992) 12 BMLR 38, Ognall J B was an elderly lady, terminally ill and in constant severe pain. With the knowledge and approval of her family, she asked D to end her suffering by hastening her death. D gave her an injection of the lethal drug potassium chloride, and shortly afterwards she died comparatively peacefully. D could not be charged with murder, because B had been cremated before any suspicion arose and the cause of her death could not conclusively be proved, but the jury found him guilty of attempted murder - the treatment could have had no purpose except to kill - and the judge passed a suspended prison sentence. Re A (Children) [2000] 4 All ER 961, CA Conjoined ("Siamese") twins Jodie and Mary were joined in such a way that Jodie's heart and lungs were providing oxygenated blood for both; medical opinion broadly agreed that both would die in three to six months - or possibly slightly more - if nothing was done. Doctors sought the leave of the court to separate the twins, giving Jodie a good chance of a fairly "normal" life but causing the immediate death of Mary. In the Court of Appeal, Brooke LJ said there could be no doubt that in English law, a surgeon who performed the separation knowing that it would inevitably hasten Mary's death would be held to have caused that death and to have done so intentionally, even though that would not have been his primary motive. So far as the law was concerned, the doctrine of double effect did not apply here because Mary's death would not be a side-effect of treatment that was in her best interests overall. [The Court of Appeal authorised the separation, however, relying on an argument based on self-defence.]

But the victim's consent (to the risk of death or even to the actual killing) is no defence to murder if the actus reus and mens rea are satisfied. Euthanasia and duelling are both regarded as murder.

R v Taverner (1619) 81 ER 144, KB A man D killed another in a duel instigated by the victim. Affirming D's conviction for murder and passing sentence of death, Coke CJ said it is not material in the law who begins the quarrel: if one duellist kills the other while in possession of his self-control, it is murder. R v Cocker [1989] Crim LR 740, CA D's wife suffered from an incurable disease and was severely incapacitated. At her request, he suffocated her with a pillow and was charged with murder. He argued that he had been provoked by her repeated pleas to end her life, but the trial judge ruled this could not amount to provocation because there had been no loss of self-control. D's conviction was upheld by the Court of Appeal.

Where the defendant denies any intention of causing death or serious injury, the jury may have to reach a verdict based on circumstantial evidence of intention. The appropriate direction to be given to the jury in such cases has caused the courts not a little trouble.

DPP v Smith [1960] 3 All ER 161, HL D was the driver of a car containing stolen property, and a police officer M signalled him to stop. D drove on with M clinging to the car; he accelerated and swerved from side to side to throw M off. M fell into the path of another vehicle and was killed, and D was charged with murder. The trial judge told the jury that if they were satisfied that as a reasonable man D must have contemplated that grievous bodily harm was likely to result, they should convict, and this direction was ultimately upheld by the House of Lords. [This decision is now disapproved.] Criminal Justice Act 1967 s.8 A court or jury, in determining whether a person has committed an offence, shall not be bound in law to infer that he intended or foresaw a result of his actions by reason only of its being a natural and probable consequence of those actions, but shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences as appear proper in the circumstances. Hyam v DPP [1974] 2 All ER 41, HL D was the lover of J, and became suspicious of his relationship with another woman B. She went to B's house, poured petrol through the letter-box, and lit it, causing a serious fire. B's two daughters died in the fire, and D was charged with their murder. Her defence was that she intended only to frighten B into breaking off her relationship with J, and had not intended to kill anyone. The House of Lords by a majority dismissed D's appeal against conviction. Lord Hailsham LC said it was sufficient for murder that D knew there was a serious risk of death or grievous bodily harm and went on to commit the acts with the intention of exposing a potential victim to such a risk. Lords Diplock and Kilbrandon dissented as to the sufficiency of grievous bodily harm, but all agreed that foresight was as good as intention. [This decision flies in the face of s.8 of the Criminal Justice Act 1967 (above), and is now generally regarded as having been wrongly decided.] R v Moloney [1985] 1 All ER 1025, HL D and his stepfather V, each of whom had been drinking, got into an argument as to which could load and fire a shotgun more quickly. They decided to test their respective claims by practical experiment, in the course of which D shot V in the face at a range of about six feet, killing him instantly. D claimed that he had not deliberately aimed the gun, and had simply pulled the trigger in response to V's taunts, but the jury found him guilty of murder. The House of Lords were highly critical of a statement in Archbold that a man intends the consequence of his action when he foresees that it will probably happen; they allowed D's appeal and substituted a verdict of manslaughter. Lord Bridge suggested that where a special direction was necessary the jury might be invited to consider (i) whether death or serious injury was a "natural consequence" of D's actions, and (ii) whether D foresaw that consequence, and to infer the appropriate intention if and only if they could answer yes to both questions. R v Hancock & Shankland [1986] 1 All ER 641, HL During a strike, two strikers DD decided they would try to stop non-strikers from getting to work. They stood on a bridge over the motorway, and when they saw a taxi approaching in which a "blackleg" was travelling, they pushed over a lump of concrete meaning for it to land on the road in front of the taxi. In fact, the concrete hit the taxi itself and killed the taxi-driver, and DD were charged with murder. Their conviction based on the trial judge's Moloney direction was quashed by the Court of Appeal, and a further appeal by P to the House of Lords was dismissed. The House said Lord Bridge's dictum was erroneous and misleading. The greater the probability of a consequence, said Lord Scarman, the more likely it is that is was foreseen; and if it was foreseen, the more likely it is that it was intended. But it is entirely up to the jury to decide what degree of foresight is required for an inference of intention, and no simple formula can replace the jury's right and duty to make its own decision. R v Nedrick [1986] 3 All ER 1, CA D set fire to a house belonging to a woman against whom he had a grudge, and the woman's child died in the fire. The trial judge (before the judgments in Moloney and Hancock & Shankland had been published) directed the jury as to intention in a way that was now clearly inappropriate, and the Court of Appeal quashed D's conviction for murder and substituted manslaughter. Where the charge is murder, said Lord Lane CJ, and in the rare cases where a simple direction as to intention is not enough, the jury should be directed that they are not entitled to infer the necessary intention unless they feel sure that death or serious bodily harm was a virtual certainty - barring some unforeseen intervention - as a result of the defendant's actions, and that the defendant realised such was the case. Where a man realises that it is for all practical purposes inevitable that his actions will result in death or serious harm, the inference might be irresistible that he intends that result, however little he might desire or wish it to happen, but the decision is one for the jury, to be reached on a consideration of all the evidence. Frankland & Moore v R [1987] AC 576, PC (Isle of Man) DD were charged with murder in the Isle of Man, and the trial judge (following DPP v Smith above) directed the jury that the test was what a reasonable man would have foreseen as the probable consequence of DD's acts. The Privy Council allowed DD's appeal against conviction, strongly disapproving DPP v Smith and declaring that no such objective test had ever been part of the common law so far as murder was concerned. R v Donnelly [1989] Crim LR 739, CA A man V was killed by the accidental discharge of a shotgun being used by D as a club. At D's trial for murder the judge told the jury to consider the likelihood of such a discharge as an indication of possible intention. The Court of Appeal quashed D's conviction for murder and substituted a verdict of manslaughter. There was no evidence, they said, that such a likelihood had been anywhere near a "virtual certainty", and if D had intended to cause death or serious injury he could simply have pulled the trigger. R v Walker & Hayles (1990) 90 Cr App R 226, CA During a fight with a man V, DD dropped him from a third-floor balcony; V survived, but DD were charged with attempted murder. The trial judge told the jury that they might infer an intention to kill V if they were satisfied DD knew there was "a very high degree of probability" that he would be killed, and the jury convicted. The Court of Appeal dismissed DD's appeal, saying the abolition of any objective test meant that no specific form of words was required. The judge might use the phrase "a very high degree of probability" as broadly synonymous with "virtual certainty", so long as the line between intention and foresight was not blurred. [But see now Woollin below.] R v Woollin [1998] 4 All ER 103, HL A man D lost his temper with his three-month-old son and threw the child onto a hard surface, causing head injuries from which the child died. D was charged with murder and the judge directed the jury that they might infer the necessary intention if they were satisifed that D realised there was "a substantial risk" of serious injury. Allowing D's appeal against conviction and substituting a verdict of manslaughter, the House of Lords said this would enlarge the scope of murder and blur the distinction between that and manslaughter. The jury, said Lord Steyn, should be directed that they are not entitled to find the necessary intention unless they feel sure that death or serious bodily harm was a virtual certainty - barring some unforeseen intervention - as a result of the defendant's actions, and that the defendant realised such was the case, but should be reminded that the decision is one for them on a consideration of all the evidence. R v Matthews & Alleyne [2003] 2 Cr App R 30 (461), CA DD appealed against their conviction for murder following the death of a young man (a non-swimmer) whom they had thrown from a bridge into a river. The Court of Appeal affirmed the conviction, which it did not consider unsafe in the light of the evidence, but expressed concern that the Nedrick/ Woollin evidential rule should not be treated as if it were a rule of law. A defendant's foresight of virtually certain death does not automatically require the jury to find that he intended that result: it is merely evidence (albeit often very strong evidence) from which the jury may draw that conclusion.

Murder is a crime of specific intent. If for any reason (including self-induced intoxication) the killer does not form the necessary intent, he cannot be convicted of murder.

R v Lipman [1969] 3 All ER 410, CA D and his girlfriend V each took a quantity of LSD (a hallucinatory drug). During his "trip", D imagined he was being attacked by snakes at the centre of the earth and had to defend himself; in doing so, he actually killed V by cramming eight inches of sheet down her throat. He was acquitted of murder because the jury were not sure that he had the necessary intention, being intoxicated, but convicted of manslaughter. R v Sheehan & Moore [1975] 2 All ER 960, CA In revenge for a minor theft, and in a drunken state, D1 (assisted by D2) poured petrol over a man V and burned him to death. Allowing their appeals against a murder conviction and substituting manslaughter, the Court of Appeal said the jury should not have been asked to consider whether DD were so drunk as to have been incapable of forming the intention to cause death or serious injury. The question was not whether DD were capable of forming the necessary intention but whether they had in fact done so, and the onus of proving that was on the prosecution. R v O'Connor [1991] Crim LR 135, CA In a drunken state, D killed another man in a fight. The Court of Appeal quashed his conviction for murder and substituted a verdict of manslaughter; the trial judge should have instructed the jury to consider D's specific intent or lack of intent in the light of his intoxication, and had failed to do so.

As for any crime, the actus reus and the mens rea of murder must normally coincide in time, but the courts are prepared to take a broad view.

Meli v R [1954] 1 All ER 373, PC (South Africa) Thabo Meli and his friends took their victim to a small hut and beat him over the head intending to kill him. Thinking they had succeeded, they rolled his body over a cliff to make the death appear accidental. In fact, the victim survived both the beating and the rolling, but died from exposure shortly afterwards. Meli and the others were convicted of murder. The Privy Council, dismissing their appeal, said that where the actus reus consists of a series of linked acts, it is enough that the mens rea existed at some time during that series, even if not necessarily at the time of the particular act which caused the death. Attorney-General of Northern Ireland v Gallagher [1961] 3 All ER 299, HL A man D determined to kill his wife, and drank a substantial amount of whiskey to give himself "Dutch courage" before going upstairs and stabbing her to death. Affirming his conviction for murder, the House of Lords said it was enough that he had the intention to kill before he became intoxicated, and did not clearly abandon that intention. It was not necessary to prove that he had the necessary intention at the time of the actual stabbing.

The doctrine of "transferred malice" applies here as elsewhere: an intention to kill one person can be transferred to another if the second is the one who actually dies from the defendant's act.

Agnes Gore's Case (1611) 77 ER 853, KB A woman put poison into a medicine that had been prescribed for her husband. Her husband and her father took some of the medicine and became ill, but both recovered. The apothecary, anxious to show that their illness was not his fault, took a dose of the medicine himself (having first stirred it well) and died. The judges agreed that the woman's intention to kill her husband could be transferred to the apothecary, and she was convicted of murder. R v Mitchell [1983] 2 All ER 427, CA D and another man S became involved in a scuffle in a Post Office; D pushed S, who fell onto an elderly lady C, causing C injuries from which she later died. The Court of Appeal upheld D's conviction for manslaughter; his intention to assault S was transferred to C. Attorney-General's Reference (No.3 of 1994) [1997] 3 All ER 936, HL A man D stabbed his pregnant girlfriend V in the abdomen; she gave birth prematurely, and the baby B died some four months later as a result of its immaturity. D admitted wounding V with intent to cause grievous bodily harm, but there was no evidence that he intended to harm B. D was acquitted of B's murder on the judge's direction, and the Attorney-General referred the case to the Court of Appeal for a legal ruling. On a further appeal to the House of Lords, Lord Mustill said the "transferred malice" rule is a remnant of the old common law, not based on any sound principle: he was willing to follow such laws until they were overturned, he said, but not to extend them to make new law on a basis for which there was no principle. In particular, a double transfer from the mother to the foetus (which was not in law a "human being"), and then from the foetus to the subsequent living baby, would be a step too far. D could not be guilty of B's murder under these circumstances.

Note that a conditional intention - an intention to kill or cause serious injury if and only if certain conditions are met - still counts as an intention. The illustrative cases come from burglary but (it is assumed) apply equally to murder.

R v Collins [1972] 2 All ER 1105, CA In the early hours of the morning, a young man D decided he was going to have sex with a certain young woman V whom he knew slightly. Under questioning, he admitted that while he hoped she would consent, he intended to have sex with her whether she consented or not. In fact the young woman (mistaking him for her boyfriend) invited him into her bedroom, and his conviction for burglary with intent to **** was quashed on the grounds that he had not entered as a trespasser, but the Court of Appeal said obiter that his conditional intent (to **** her if she did not consent) would have been enough. Attorney-General's Reference (Nos.1 & 2 of 1979) [1979] 3 All ER 143, CA The Court of Appeal declared that a person who enters a house intending to steal only if he finds money (or other valuable items) in the house can be convicted of burglary contrary to s.9(1) of the Theft Act 1968 (which requires an intention to steal) notwithstanding that his intention to steal is conditional.

10 of 14

cases on voluntary manslaughter

DIMINISHED RESPONSIBILITY

Homicide Act 1957 s.2 Where a person kills ... 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 induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing ... the killing. R v Byrne [1960] 3 All ER 1, CCA D strangled a young woman V and mutilated her body. At his trial for murder he brought medical evidence to support his claim that since childhood he had suffered violent and perverted sexual desires that he found it difficult and sometimes impossible to resist. The Court of Criminal Appeal quashed D's conviction for murder and substituted manslaughter; lack of self-control due to an abnormality of mind is capable of constituting diminished responsibility, and the question should have been put to the jury. R v Reynolds (1988) unreported, CA A 19-year-old woman D battered her mother to death with a hammer and was convicted of murder. Allowing her appeal and substituting manslaughter (for which she was put on probation), the Court of Appeal said D was temporarily unbalanced after the secret birth of her baby, and post-natal depression could be enough to create diminished responsibility. R v Ahluwalia [1992] 4 All ER 889, CA A woman D had entered into an "arranged marriage" and had been very badly treated by her husband. He had been violent and abusive towards her; he had threatened to kill her and had once tried to run her down; and he had taunted her about his affair with another woman. One evening D poured petrol over his bed as he slept and set light to it. The Court of Appeal quashed D's original conviction for murder, and at the retrial D's plea of diminished responsibility resulting from the newly-acknowledged "battered woman syndrome" was accepted.

Under s.2(2), the burden of proving diminished responsibility rests on the defendant.

R v Ali, R v Jordan [2001] 1 All ER 1014, CA DD were (separately) convicted of murder, and appealed on the grounds that s.2(2) of the Homicide Act 1957 violated their Convention rights by placing on them the burden of proving diminished responsibility. Rejecting their appeals, Lord Woolf CJ said the common law principle that the burden of proof lies on the prosecution can be displaced, as in this case, by clear statutory words. It would be very difficult for the prosecution to prove that a defendant was not suffering diminished responsibility, particularly if the defendant refused to cooperate in a psychiatric assessment, and s.2 strikes a fair balance between the rights of the individual defendant and the need to protect the public.

Diminished responsibility is sui generis, and must not be treated as if it were synonymous with some kind of temporary (or permanent) insanity.

R v Seers (1984) 79 Cr App R 261, CA A man D killed his wife a month after she had left him taking their two children. Psychiatrists agreed he had been suffering from "reactive depression" but disagreed as to whether this had been sufficient to impair his responsibility. [Several witnesses testified that D had publicly declared his intentions: the prosecution said this showed premeditation, but the defence said it showed D's mental abnormality because no normal person would do such a thing!] Drake J directed the jury that diminished responsibility was something bordering on insanity, and the jury convicted. Allowing D's appeal, Griffiths LJ said such a direction could not be justified by the words of the statute.

The prosecution may sometimes accept a defendant's plea of guilty to manslaughter, even (on occasion) where his mental state does not strictly meet the statutory definition.

R v Cox [1968] 1 All ER 386, CA D was accused of murdering his wife; there was overwhelming evidence of diminished responsibility, and after a full trial the judge directed the jury accordingly. On D's appeal against his sentence of life imprisonment (which was varied to a hospital order) Winn LJ said obiter that in cases where the medical evidence plainly points to diminished responsibility, it is perfectly proper for the prosecution to accept a plea to manslaughter on that basis and avoid the trouble and expense of a trial for murder. R v Price (1971) unreported A boy of six had the mental capacity of a baby and a short life expectancy. His father D placed the boy in a river and watched him float away; the boy drowned. D pled guilty to manslaughter on the basis of diminished responsibility, and was put on probation for a year on condition that he underwent "such treatment as a doctor may prescribe for the next few weeks or so". R v Miller (1972) unreported An elderly woman became convinced that her husband (of forty years' marriage) was having an affair with his secretary, and stabbed him to death with a carving knife while he slept. Her plea of diminished responsibility was accepted, and she was put on probation for three years on condition that she spent at least a year in hospital. R v Robinson [1990] Independent 7/7/90, Saville J A woman D killed her husband by attacking him with a hammer and then strangling him. He had frequently been violent towards her, putting her in hospital from time to time, and she returned from hospital to find he had been having an affair with another woman. The prosecution said she had been subjected to a degree of provocation which goes well beyond that which might be thought to be extreme. The judge accepted her plea of manslaughter because of diminished responsibility and put her on probation for two years. R v Skerton (1994) unreported, Auld J A 25-year-old man D tried to commit suicide after his wife left him, by sitting in a closed car with his two sons and breathing the exhaust fumes; the baby died and the 4-year-old and D survived. D pled guilty to manslaughter by diminished responsibility resulting from reactive depression, and causing grievous bodily harm; charges of murder and attempted murder were abandoned, and D was sentenced to five years' imprisonment. R v Hampson (1999) unreported A man D who battered his wife to death with a hammer pled guilty to manslaughter by reason of diminished responsibility. The court accepted that D's wife's constant nagging had caused a depressive illness, and sentenced him to six years' imprisonment. R v Lawson (2001) unreported A young woman V had been seriously depressed for some years, and had tried several times to commit suicide. When she was sent home from hospital (for possessing cannabis) after two suicide attempts in a week, her father gave her two bottles of tranquillisers, which she swallowed, put a plastic bag over her head with her cooperation, and finally smothered her with a pillow. His plea to manslaughter by reason of diminished responsibility was accepted by the prosecution, and the judge suspended a sentence of two years' imprisonment. R v Bailey (2002) unreported A 74-year-old man D killed his wife, who was in severe pain from motor neurone disease. D's plea of guilty to manslaughter by reason of diminished responsibility was accepted by the prosecution, and the judge made a three-year community rehabilitation order.

The Law Commission in their report Law Com 290 (2004) noted these and other similar cases, but said that while the mandatory life sentence for murder remains in place, they "are not persuaded that the acknowledged infelicities of the current formulation presently cause injustice in practice".

If the case goes to trial, whether the defendant was suffering diminished responsibility is a matter of fact for the jury to decide. They will normally be guided by the medical evidence, but they are at liberty to make their own decision.

R v Lloyd [1966] 1 All ER 107n, CA A man D killed another and was charged with murder. The doctors agreed that D had been depressed and that his responsibility had been impaired, but doubted whether this impairment had been substantial. Ashworth J directed the jury that diminished responsibility required substantial impairment, and the jury convicted of manslaughter. The verdict was upheld by the Court of Appeal. Walton v R [1978] 1 All ER 542, PC (Barbados) A young man D was driving home with his girl friend and her mother when he stopped the car. He flagged down another car, and when it stopped he shot and killed the passenger for no apparent reason. At D's trial for murder two psychiatrists and a psychologist gave evidence on his behalf, but the jury rejected his claim of diminished responsibility and convicted of murder. Dismissing D's appeal, the Privy Council said the jury were entitled to reject the expert evidence if they chose. Upon an issue of diminished responsibility, said Lord Keith, the jury are entitled and indeed bound to consider not only the medical evidence but the evidence upon the whole facts and circumstances of the case. These include the nature of the killing, the conduct of the accused before, during and after it, and any history of mental abnormality. R v English (1981) unreported A woman who killed was allowed to bring evidence to show that pre-menstrual tension had impaired her responsibility sufficiently for this defence to be admitted. R v Sutcliffe (1981) unreported After a long police investigation D was identified as the "Yorkshire Ripper" and charged with the murders of about a dozen young women over a period of several years. D claimed to have been acting on a mission from God, and there was strong medical evidence to show he was a paranoid schizophrenic, but his plea of diminished responsibility was not accepted by the jury and he was found guilty of murder. R v Butters (2001) unreported A man stabbed his wife to death four days after their wedding. He claimed to have been suffering diminished responsibility, having not slept for three nights after coming off temazepan. The jury rejected this defence, and D was convicted of murder. R v Wragg (2005) unreported A man D was acquitted of murder but pled guilty to manslaughter by reason of diminished responsibility. He had suffocated his 10-year-old son, who suffered from Hunter syndrome (a degenerative and fatal disease) and had said he wanted to die. Rafferty J imposed a sentence of two years' imprisonment, suspended for two years, saying there was nothing to be gained from sending D to prison but that she would not have been so lenient had D's wife (the boy's mother) not been complicit in the killing.

Research carried out by Prof. Mackay for the Law Commission suggests that in cases where the defendant puts forward a plea of diminished responsibility, the prosecution accept such a plea about three-quarters of the time. In the remaining quarter of cases in which the question of diminished responsibility falls to be determined by the jury, about 75% of defendants are convicted of murder, 15% of manslaughter by diminished responsibility, and 10% of "ordinary" manslaughter.

Intoxication in itself does not constitute diminished responsibility. Where the defendant was intoxicated, the jury must consider whether his responsibility would still have been impaired if he had been sober.

R v Tandy [1989] 1 All ER 267, CA An alcoholic D was charged with the murder of her 11-year-old daughter, but claimed diminished responsibility due to her having drunk a whole bottle of vodka. The Court of Appeal dismissed D's appeal against a conviction for murder: drunkenness is not an "abnormality of mind", and only if alcoholism had reached such a state that the brain had been injured, or the drinking was purely involuntary, might a defence of diminished responsibility succeed. If D simply failed to resist an impulse to drink - even if only the first drink was voluntary - she could not avail herself of this defence. R v Gittens [1984] 3 All ER 252, CA D was charged with murdering his wife and step-daughter while suffering from depression combined with the effects of drink and drugs. The trial judge told the jury they had to decide whether it was depression or intoxication that was the substantial cause of D's state of mind, and they convicted of murder. The Court of Appeal substituted a verdict of manslaughter; Lord Lane CJ said the jury should have been directed to disregard the effect of the drink and drugs and then consider whether the effect of the other cause(s) was enough that it substantially impaired D's responsibility for his acts. R v Dietschmann [2003] 1 All ER 897, HL A man D suffering from an "adjustment disorder" following the death of a close relative killed another man V in a savage attack. D's defence of diminished responsibility was hampered by the fact that at the time of the killing he was heavily intoxicated, and he was convicted of murder. On appeal, the House of Lords approved the decision in Gittens. Whether D would still have killed had he not been been intoxicated is irrelevant, said Lord Hutton: the important question for the jury is simply whether his mental abnormality (arising from one of the specified causes, and disregarding the intoxication) substantially impaired his mental responsibility for his actions. [The House remitted the case for the Court of Appeal could decide whether to order a new trial on the murder charge or to substitute a conviction and sentence for manslaughter.] R v Wood [2008] EWCA Crim 1305 After a day's heavy drinking, a man D killed in a frenzied attack another man V who made sexual advances to him. It was agreed by the psychiatrists that D was a chronic alcoholic, and the question was whether the judge had directed the jury correctly on the question of diminished responsibility. Allowing D's appeal against his conviction for murder, the Court of Appeal said the decision in Dietschmann must modify the rule in Tandy: it cannot be a rule of law that a decision to drink is necessarily a voluntary choice if made by a chronic alcoholic. A man suffering from alcohol dependency syndrome may be incapable of making a truly voluntary choice whether or not to drink, and may therefore be involuntarily intoxicated.

PROVOCATION

The essence of provocation, as set out by Devlin J and approved by the Court of Criminal Appeal in R v Duffy [1949] 1 All ER 932, and modified by the Homicide Act 1957, is that some act or series of acts was done by the victim or another, aimed at the defendant or another, which would have caused in any reasonable person and did in fact cause in the defendant a sudden and temporary loss of self-control, rendering him so subject to passion as to make him for the moment not master of his mind.

Homicide Act 1957 s.3 Where on a charge of murder there is evidence on which the jury can find that 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 be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man.

Provocation need not be pled directly by the defendant (since it might weaken an alternative argument of self-defence), but there must be evidence tending to show that the killing might have been an uncontrolled reaction to provoking conduct. A loss of self control caused by fear, panic, sheer bad temper or circumstances (e.g. a slow down of traffic due to snow) would not be enough. But if there is the slightest evidence of provocation, the burden of proof lies on the prosecution to show beyond reasonable doubt that the killing was unprovoked. The defence is not required to prove provocation, and need only point to some evidential material which could induce a reasonable doubt in the jury's mind.

R v Whitfield (1976) 63 Cr App R 39, CA Following a long series of family quarrels, including a threat to take away the baby, D killed his wife and her sister. He was charged with murder and claimed provocation, but the judge withdrew this question from the jury. The Court of Appeal quashed D's conviction for murder and substituted one for manslaughter: it is clear that any conduct (including mere words) can in principle amount to provocation. R v Cambridge [1994] 2 All ER 760, CA D allegedly killed another man V in a pub fight after a quarrel, and was charged with murder. His defence was that he had not struck the fatal blow, and made no mention of provocation (which would clearly have been inconsistent). Allowing his appeal against conviction and substituting a manslaughter verdict, the Court of Appeal said that if there was any evidence on which the jury could properly find that D might have been provoked so as to lose his self-control, the judge must leave that question to them. R v Acott [1997] 1 All ER 706, HL D appealed against his conviction for murder on the grounds that the judge had not put the issue of provocation to the jury. The Court of Appeal said there was no need for the judge to direct the jury on provocation unless there was some direct or inferential evidence of provocation in its active sense, that is, of things said or done that might have caused D to react as he did. The House of Lords agreed and dismissed D's appeal.

It was formerly thought that provocation must be offered by the victim to the accused directly, but in the nineteenth century Park J said obiter in R v Fisher (1837) 173 ER 452 that if a father came upon a man sexually assaulting his young son and instantly killed him, that would have been provocation enough. This is clearly consistent with the wording of the Act, which does not specify the source or the target of the provocation.

R v Gross (1913) 23 Cox CC 455, Darling J Provoked by blows from her husband H, D shot at him intending to kill him, but missed and killed a third person V instead. Darling J said that if it would have been manslaughter rather than murder (because of provocation) for D to have killed H, it would equally be manslaughter rather than murder that she killed V. R v Davies [1975] 1 All ER 890, CA A man D became jealous of his wife W's association with another man S, and threatened to kill him. Over the course of the next six months D broke into W's bedroom with a loaded pistol, set fire to a friend's house, and eventually shot W as she met S outside the library where she worked. D was convicted of murder and appealed on the grounds that the judge's direction to the jury addressed only the possibility of provocation by S himself, and ignored the possibility of provocation by W. The Court of Appeal said the jury in considering provocation were entitled to look at acts or words emanating from a person other than the victim, but applied the proviso and upheld the conviction. R v Pearson [1992] Crim LR 193, CA Two brothers D1 and D2 were jointly charged with the murder of their father, who had seriously ill-treated the younger D2 over a period of eight years while D1 was away from home. Allowing their appeal and substituting a manslaughter verdict, the Court of Appeal said the jury should have been told to consider the father's words and deeds towards D2 when deciding whether or not D1 had been provoked, particularly since D1 had returned home deliberately to protect D2 from his father's violence.

Similarly, the courts had tried in earlier cases to lay down exactly what conduct could and what could not amount to provocation, but the Act set these precedents aside. The defendant can claim provocation where the supposedly provocative behaviour is not unlawful or unreasonable, or where he is mistaken (perhaps through voluntary intoxication) as to the meaning of the other person's behaviour, or even where the supposedly provocative behaviour was in fact a response to his own.

R v Doughty (1986) 83 Cr App R 319, CA A man D killed his baby, and claimed he had been provoked by its constant crying. Quashing his conviction for murder and substituting a five-year sentence for manslaughter, Stocker LJ said the trial judge was bound by the plain words of the statute to leave this defence to the jury. Provocation need not be unlawful in itself, and a baby's crying was undoubtedly "things done". R v Brown (1776) 168 ER 177, KB A soldier D wrongly (but apparently reasonably) supposed V to be a member of a gang attacking D and a comrade. D killed V with his sword and was charged with murder. On appeal from Gould J, the twelve judges took the view that this was only manslaughter, apparently relying on provocation rather than self-defence. R v Letenock (1917) 12 Cr App R 221, CCA A soldier D stabbed and killed a corporal, and was convicted of murder. Substituting a verdict of manslaughter, the Court of Criminal Appeal said there was an element of doubt as to whether there were circumstances which might have caused D in his drunken condition to believe he was going to be struck. (This was treated as provocation rather than self-defence, probably because the force used was manifestly more than reasonable protection.) R v Wardrope [1960] Crim LR 770, Edmund Davies J D and V spent the day drinking together, but by evening they began to argue. V called D a "Scots *******" and struck him with his belt; D then beat V and fell upon him. In the morning V was found dead, and D readily admitted the facts as described. A person whose mind is so impaired by drink as to imagine himself attacked, said the judge, talking about the alternative of self-defence, is entitled to take such steps in defending himself as are necessary to meet the imagined attack, as if it were real. However, the test for provocation is whether a reasonable man (not a drunken man) would have lost his self-control and reacted as D did in the circumstances in which D believed himself to be. Edwards v R [1973] 1 All ER 152, PC (Hong Kong) A blackmailer A went to V's hotel room in the early hours, after making a series of telephone calls, and pressed V for payment. V responded by swearing at A and attacking him with a knife; A seized the knife from V and stabbed him nearly 30 times, killing him. Allowing A's appeal against his conviction for murder, and substituting manslaughter, the Privy Council said that while a blackmailer should expect a certain amount of retaliation, an attack with a knife was more than might reasonably have been expected and the question of provocation should have been put to the jury. R v Johnson [1989] 2 All ER 839, CA A man D made violent threats towards V and V's girl-friend. V grabbed D and pinned him against a wall, holding a glass in his other hand, but when V let go of the glass D stabbed him fatally with a flick-knife. At D's trial for murder he argued only self-defence, but his counsel asked the judge to direct the jury on provocation too; the judge refused, saying self-induced provocation could never be a defence. The Court of Appeal applied Edwards and allowed D's appeal: if there was evidence on which the jury might find provocation, whether self-induced or not, it was up to the jury to decide the question. R v Morhall [1995] 3 All ER 659, HL A habitual glue-sniffer D killed another man V who nagged him about his habit. D was charged with murder and claimed he had been provoked. Allowing his appeal and substituting a conviction for manslaughter, the House of Lords said there is no rule to prevent a defendant's relying on a self-induced condition such as drug addiction (or even previous criminal convictions) as characteristics of the ordinary person where these are relevant to the provocation. R v Dryden [1995] 4 All ER 987, CA A man D built a bungalow on his land, without planning consent, and was directed to demolish it. He refused to do so, and the local authority obtained and sought to enforce a demolition order. D went into his house to get a revolver, shot and killed a planning officer, and wounded several other officials present at the scene. His appeal against his conviction for murder was dismissed, but there was no doubt (said the Court of Appeal) that the authority's conduct, lawful and reasonable as it was, could potentially have been provocation on which a defence might have been founded.

Loss of self-control

It is central to the doctrine of provocation that there should have been a sudden loss of self-control; a coolly planned act of revenge is murder.

R v Ibrams & Gregory (1981) 74 Cr App R 154, CA Two men DD and a woman A had been bullied and terrorised by V over a period up to and including a particular Sunday, and had been unable to obtain police protection. On Wednesday DD and A planned to beat up V the following Sunday and break his arms and legs; this plan was duly carried out, and V died of his injuries. The trial judge withdrew the defence of provocation from the jury, there having been no evidence of any provocative behaviour during the week or at the time of V's death, and DD's conviction was upheld. R v Cocker [1989] Crim LR 740, CA D's wife suffered from an incurable disease and was severely incapacitated. At her request, he suffocated her with a pillow and was charged with murder. He argued that he had been provoked by her repeated pleas to end her life, but the trial judge ruled this could not amount to provocation because there had been no loss of self-control. D's conviction was upheld by the Court of Appeal. R v Clarke [1991] Crim LR 383, CA Following some provocation, D head-butted V, strangled her (which might have been the cause of death), and then electrocuted her by placing live wires in her mouth. The Court of Appeal held that the trial judge had properly directed the jury to consider the entire sequence of events in determining whether D had lost his self-control. [Professors Smith and Hogan argue this may lead to wrong decisions; if D had lost his self-control when he did the act that caused V's death, it is immaterial that he may have regained it later.] R v Dryden [1995] 4 All ER 987, CA A man D built a bungalow on his land, without planning consent, and was directed to demolish it. He refused to do so, and the local authority obtained and sought to enforce a demolition order. D went into his house to get a revolver, shot and killed a planning officer, and wounded several other officials present at the scene. The Court of Appeal applied the proviso and dismissed D's appeal in spite of a misdirection by the trial judge on the question of provocation. Since D had announced his violent intentions some considerable time before the incident, and had already loaded his gun in readiness, there was overwhelming evidence on which the jury would surely have decided that he did not lose his self-control.

This rule has made it difficult for battered women (who often need a weapon if they are to respond effectively to their abusers) to use the defence of provocation. However, cumulative provocation, perhaps over many years, can be taken into account as long as there is a "last straw" leading to a sudden loss of self-control.

R v Thornton [1992] 1 All ER 306, CA After several years of physical and mental cruelty D stabbed and killed her husband and was charged with murder. The trial judge directed the jury that the loss of self-control must have been sudden for provocation to be found, and that a response after D had "cooled down" could not give rise to this defence. D's conviction was upheld by the Court of Appeal. [A second appeal based on new evidence was subsequently allowed.] R v Ahluwalia [1992] 4 All ER 889, CA D had entered into an "arranged marriage" and had been very badly treated by her husband. He had been violent and abusive towards her; he had threatened to kill her and had once tried to run her down; and he had taunted her about his affair with another woman. One evening D poured petrol over his bed as he slept and set light to it. She was charged with murder, and claimed provocation. The Court of Appeal confirmed the rule, but stressed that "sudden" is not the same as "immediate". The rule does not mean as a matter of law that the response must invariably follow immediately upon the provocation, said Lord Taylor CJ, but the longer the delay and the stronger the evidence of deliberation the more likely it will be that the prosecution will be able to show there was no "sudden and temporary loss of self-control". [At a retrial, an alternative defence of diminished responsibility was successful.] R v Baille [1995] 2 Cr App R 31, CA A man V had been supplying drugs to D's sons, and made threats against one of them. The son told his father D, who lost his self control, got a gun and a razor from the attic, drove to V's house (stopping for petrol on the way), knocked on V's door, and killed him after a very brief exchange of words. Allowing D's appeal against his conviction for murder, and ordering a new trial, the Court of Appeal said that although D's behaviour strongly suggested planned retaliation rather than a loss of self-control, he was entitled to have the whole of the provocation put to the jury. The judge's direction had suggested that the threats were too remote and that the jury should consider only the words at V's house: that was a usurpation of the jury's role. R v Humphreys [1995] 4 All ER 1008, CA A woman D of 17, working as a prostitute, stabbed and killed the 32-year old man with whom she was living. He had been violent towards her on several occasions, and when she cut her wrists, apparently seeking attention rather than seriously attempting suicide, he taunted her with her incompetence. D was charged with murder and convicted. Allowing her appeal some ten years later, the Court of Appeal said the judge had erred in not clearly directing the jury's attention to the cumulative provocation offered over several months before the final taunt.

The objective test

Having decided that D was provoked into losing his self-control, the jury should then consider whether an ordinary person in the same circumstances would have been similarly provoked and would have reacted in a similar way. At one time, this test was applied quite strictly, as if it were a rule of law, but the 1957 Act made the reasonableness of the provocation a matter for the jury.

R v Lesbini [1914] 3 KB 1116, CCA A woman V made a number of anti-Semitic remarks directed at D, who was Jewish; D took a loaded revolver V had provided for target practice, chased after her when she ran away, and shot her. D's conviction for murder was affirmed by the Court of Appeal; a reasonable man would not have responded so strongly to comparatively little provocation. Mancini v DPP [1941] 3 All ER 272, HL A fight broke out in a bar; V seized D's arm and aimed a blow at him, whereupon D pulled out a dagger and stabbed V causing fatal injuries. D was convicted of murder, and his plea of provocation was rejected by the House of Lords. To retort in the heat of passion induced by provocation by a simple blow is a very different thing from making use of a deadly instrument like a concealed dagger. If the offence is to be reduced to manslaughter, said Viscount Simon LC, the mode of resentment [i.e. retaliation] must bear a reasonable relationship to the provocation. Homicide Act 1957 s.3 Where on a charge of murder there is evidence on which the jury can find that 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 be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man. R v Brown [1972] 2 All ER 1328, CA A man D believed (wrongly) that his wife V was having an affair with another man, and killed her with a cut-throat razor. At his trial for murder he claimed provocation, but his conviction was upheld by the Court of Appeal. Talbot J said it is generally better if the jury is instructed to consider first whether or not D was actually provoked: if he was not, the matter ends there. If D is an exceptionally well-balanced and self-controlled person and did not actually lose his temper, he cannot claim provocation no matter what a reasonable man might have done. Only if the jury are satisfied that the defendant was in fact provoked need they go on to consider what the reasonable man would have done in the circumstances. But Viscount Simon's rule as set out in Mancini had been overtaken by the express terms of the Homicide Act 1957 and is no longer good law. Judges should refrain from directing juries in terms of "reasonable relationship" unless they make it clear that the dictum is offered as a guide to the jury's own consideration and not as a rule of law. R v Whitfield (1976) 63 Cr App R 39, CA Following a long series of family quarrels, including a threat to take away the baby, D killed his wife and her sister. He was charged with murder and claimed provocation, but the judge withdrew this question from the jury on the grounds that D's evidence did not disclose sufficient provocation to make a reasonable man act as D had done. The Court of Appeal quashed D's conviction for murder and substituted one for manslaughter; the Act expressly leaves it to the jury to decide how a reasonable person would have reacted.

There may be more than one "reasonable person" - different people react in different ways - and juries over the past fifty years have generally been told to compare that defendant's behaviour with that of a reasonable person sharing certain of the defendant's characteristics. In fact, most of the defendant's characteristics relevant to the provocation and/or the response can be ascribed to the reasonable person, except his state of intoxication or the shortness of his temper.

Bedder v DPP [1954] 2 All ER 801, HL An 18-year-old D went to a prostitute V, but impotence made him unable to perform. V jeered at him, slapped him and kicked him in the groin, and he stabbed her. D's plea of provocation was dismissed and he was convicted of murder. The House of Lords upheld the conviction: D's reaction was to be compared with that of a reasonable man, and a reasonable man (not being impotent) would not have been so provoked. DPP v Camplin [1978] 2 All ER 168, HL A boy D of 15 went with a man V in his fifties, who ******** him against his will and then taunted him; D responded by hitting V over the head with a heavy pan, killing him. D was charged with murder and claimed he had been provoked. Allowing his appeal against conviction, and substituting a verdict of manslaughter, the Court of Appeal distinguished Bedder on the grounds that impotence is an abnormal condition while age is not, and said the jury should have been directed to compare D's response with that of a reasonable 15-year-old. The House of Lords dismissed a further appeal by the Crown; since the Homicide Act 1957, said Lord Diplock, Bedder was no longer relevant. The "reasonable man" to be considered was an ordinary person of either sex, not exceptionally excitable or pugnacious, but possessed of such power of self-control as everyone was entitled to expect his fellow-citizens to exercise in today's society. Various dicta suggest that relevant factors might include age, sex, race, colour, ethnic origin, physical deformity or infirmity, impotence, a shameful incident in the past, an abscess on the cheek (where the provocation was a blow on the face), pregnancy or menstruation. R v Newell (1980) 71 Cr App R 331, CA A chronic alcoholic D was very depressed following the departure of a long-time woman friend W, and had become quite drunk. Another friend V, also drunk, made a number of derogatory remarks about W, which so angered D that he battered V some twenty times with a heavy ashtray and killed him. At his trial for murder, D claimed provocation. The judge told the jury to consider the effect V's drunken remark would have had on a reasonable sober person, and the jury convicted. Dismissing D's appeal, the Court of Appeal said that in ascribing to the reasonable man the characteristics of the defendant, only those characteristics which were reasonably permanent were to be considered, and any special characteristics were to be taken into account only where they related directly to the provocation. Thus "provocative words alluding to some infirmity or deformity ... might well bring about a loss of self-control", but "it would not be sufficient ... for the offender to claim merely that he belongs to an excitable race". R v Raven [1982] Crim LR 51, CCC D was charged with murder after killing a man who had made several sexual attacks on him, and claimed provocation. D was 22, but had a mental age of 9 and had lived in "squats" for several years, and the Recorder of London instructed the jury to consider the effects of similar provocation on a reasonable person with similar disadvantages. R v Ahluwalia [1992] 4 All ER 889, CA D had entered into an "arranged marriage" and had been very badly treated by her husband. He had been violent and abusive towards her; he had threatened to kill her and had once tried to run her down; and he had taunted her about his affair with another woman. One evening D poured petrol over his bed as he slept and set light to it. She was charged with murder, and claimed provocation. The Court of Appeal said characteristics relating to the defendant's mental state or personality, assuming they had the necessary degree of permanence, were just as relevant as physical ones, and that the jury might have been invited to consider not just D's status as an Asian wife and her level of education but also (had any evidence to that effect been given at the trial) the probability that she was suffering from a condition known as "battered woman syndrome". R v Dryden [1995] 4 All ER 987, CA A man D built a bungalow on his land, without planning consent, and was directed to demolish it. He refused to do so, and the local authority obtained and sought to enforce a demolition order. D went into his house to get a revolver, shot and killed a planning officer, and wounded several other officials present at the scene. Lord Taylor CJ said D's obsessiveness (e.g. his belief that the local authority were persecuting him) and his generally eccentric behaviour were relevant characteristics the jury should have been invited to consider in determining whether D had lost his self-control, particularly since the local authority's conduct in bringing an excavator to the scene was allegedly the "last straw" that had caused such a loss. On the facts, however, the conviction was upheld. R v Humphreys [1995] 4 All ER 1008, CA A woman D of 17, working as a prostitute, stabbed and killed the 32-year old man with whom she was living. He had been violent towards her on several occasions, and when she cut her wrists, apparently seeking attention rather than seriously attempting suicide, he taunted her with her incompetence. D was charged with murder and convicted. Allowing D's appeal, Hirst LJ said her immaturity (even in relation to other 17-year-olds) and her tendency to attention-seeking were permanent characteristics, not inconsistent with the idea of a reasonable person, and the jury should have been permitted to take them into account particularly since the alleged provocation was directed expressly at the latter trait. R v Morhall [1995] 3 All ER 659, HL A habitual glue-sniffer D killed another man V who nagged him about his habit. D was charged with murder and claimed he had been provoked. Dismissing D's appeal against a conviction for murder, the Court of Appeal said that since the reasonable man did not sniff glue, the defendant's glue-sniffing was not a relevant factor. The House of Lords disagreed and substituted a conviction for manslaughter. Lord Goff said the judge should have directed the jury to take D's glue-sniffing into account when considering the gravity of the provocation, even though it was discreditable and self-induced (and not necessarily permanent). The question then was whether a sober person with ordinary self-control but otherwise similar to D would have been provoked. The comparison to be made was with an ordinary person, rather than with a reasonable person as the term is understood elsewhere. All the relevant circumstances should be taken into account in assessing the gravity of the provocation, but D's reaction should then be compared with that of the ordinary sober person of the same age and sex, with ordinary powers of self-control. R v Thornton (No.2) [1996] 2 All ER 1023, CA After several years of physical and mental cruelty D stabbed and killed her husband, and was charged with murder. D's first appeal failed, but on a further reference by the Home Secretary, the Court of Appeal heard new evidence relating to D's "battered woman syndrome". The defence at trial had relied on diminished responsibility rather than provocation, but the judge had properly put the question of provocation to the jury. However, he had not drawn the jury's attention to this feature of D's personality as potentially relevant to provocation, either in rendering D more likely to lose her self-control as a result of some "last straw", or as a characteristic attributable to the "ordinary woman" with whom D was to be compared. In the light of the decisions in Humphreys and Morhall that had to be seen as a material misdirection casting doubt on the jury's verdict; D's conviction for murder was therefore quashed and a retrial was ordered. Luc Thiet Thuan v R [1996] 2 All ER 1033, PC (Hong Kong) D was charged with murder and claimed both provocation and diminished responsibility. He said that following a fall that had knocked him out some time before, he had several times lost his self-control in response to only minor provocation. He now appealed against conviction on the grounds that the judge had not referred to this injury when directing the jury on provocation, but the Privy Council dismissed his appeal. Any mental infirmity on D's part, said Lord Goff, that reduced his powers of self-control below those of an ordinary person, could not be ascribed to the ordinary person for the purposes of the objective test. The Board (Lord Steyn dissenting) expressly doubted the correctness of the decisions in Raven, Dryden and Humphreys insofar as they suggested that it might. R v Smith (Morgan) [2000] 4 All ER 289, HL A man D killed another man V in the course of an argument; he put forward a defence based on self-defence, diminished responsibility and provocation, but was convicted of murder. The Court of Appeal substituted a conviction for manslaughter, and said the judge had been wrong to tell the jury to ignore D's serious clinical depression (which might have reduced his powers of self-control) in considering whether an ordinary man would have acted in such a way. The House of Lords agreed, and rejected the reasoning of the majority in Luc. Under the 1957 Act, provocation is expressly a matter for the jury and the judge must not tell them to ignore anything they might consider relevant. It is for the jury to determine whether the provocation was enough to cause a reasonable (or ordinary) person, whatever they understand that term to mean, to behave as the defendant did. R v Holley [2005] UKPC 23 (Jersey) A chronic alcoholic killed his girl-friend with an axe while under the influence of alcohol: he admitted the killing but claimed provocation. The Court of Appeal of Jersey allowed his appeal from his conviction for murder and substituted a verdict of manslaughter; the Attorney-General of Jersey appealed against this decision to the Privy Council (not in fact seeking to restore the original verdict, the defendant having already gone through two trials and two appeals, but to clarify the law). The appeal was heard by a Board of nine judges, all members of the House of Lords, and by 6 votes to 3 the Board disapproved the majority judgment of the House of Lords in Morgan Smith and reaffirmed the decision in Luc Thiet Thuan. Delivering the majority judgment, Lord Nicholls said the majority view in Morgan Smith was inconsistent with the clear language of the statute and was therefore erroneous. The partial defence of provocation involves two elements, one subjective and the other objective. In determining whether in fact the defendant was provoked, the jury should take into account all the relevant evidence, including evidence of any mental or other abnormality making it more or less likely that he lost his self-control. If the defendant was taunted on account of his intoxication, that may be a relevant matter for the jury to take into account when assessing the gravity of the taunt to the defendant. But in determining (in the language of s.3 of the Homicide Act 1957) "whether the provocation was enough to make a reasonable man do as he did" the jury must consider the effect of that provocation on a person of the same age and sex as the defendant, but with ordinary powers of self-control. In some cases (such as Morhall) that might mean a glue-sniffer with ordinary powers of self-control, but the jury should not at this point take into account any individual peculiarities such as mental abnormality (which can be more appropriately dealt with through a defence of diminished responsibility) or intoxication. R v James, R v Karimi [2006] EWCA Crim 14 Dismissing two conjoined appeals by defendants convicted of murder, a five-judge Court of Appeal said it is the decision of the Privy Council in Holley, rather than that of the House of Lords in Morgan Smith, that is now to be followed as a correct statement of English law. Although in all normal circumstances the Court of Appeal is bound to follow a decision of the House of Lords (and is not bound to follow decisions of the Privy Council), the circumstances surrounding the decision in Holley were exceptional, and even the three members in the minority in that case had accepted that the majority decision settled the matter for England as well as for Jersey.

11 of 14

cases on involuntary manslughter

DPP v Newbury & Jones [1976] 2 All ER 365, HL As a train approached a bridge two teenage boys DD pushed a piece of a paving slab over the pa****t of the bridge. The stone struck the train and went through the window, killing the guard, and DD were convicted of manslaughter. R v Edwards (2001) unreported A couple DD who allowed their seven-year-old daughter and a friend to play on a railway bridge, promising to warn them if a train approached, were convicted of manslaughter after the girls were killed by a train which DD had not seen.

In R v Walker (1992) 13 Cr App R (S), Lord Lane CJ said it is a truism to say that of all crimes in the calendar, the crime of manslaughter faces the sentencing judge with the greatest problem, because manslaughter ranges in its gravity from the borders of murder right down to those of accidental death.

There are two or three main varieties of involuntary manslaughter, their common feature being some act or omission causing death. These are based respectively on an unlawful dangerous act, on gross negligence, and (though some writers doubt this) on recklessness. The distinction is made for the convenience of lawyers and law students: the criminal law proper makes no such distinction and recognises a single offence of manslaughter.

R v Jones (1999) Times 17/2/99, CA Dismissing D's appeal against his conviction for manslaughter, Rose LJ said it might sometimes be appropriate, when a jury in a murder trial returned a verdict of not guilty of murder but guilty of manslaughter, for the judge to ask the basis on which they returned that verdict: that might help him pass an appropriate sentence. The jury would be under no obligation to answer such a question, however, and the judge was certainly under no obligation to ask it. But if the jury were agreed that a defendant had perpetrated an unlawful act which caused the victim's death, it did not matter that they might not have been unanimous as to the basis for their verdict.

UNLAWFUL ACT MANSLAUGHTER

Under the common law, a person who killed in the course of felony was guilty of murder through the doctrine of "constructive intent". This doctrine was abolished for murder by the Homicide Act 1957, but its spirit survives in "constructive manslaughter", better known nowadays as "unlawful act manslaughter".

R v Goodfellow (1986) 83 Cr App R 23, CA A man D set fire to his council house, hoping to be moved to a better one, but his wife, one of his children, and another woman died in the fire. D was convicted of manslaughter, and the Court of Appeal dismissed his appeal. The questions which the jury have to decide, said Lord Lane CJ, are whether the defendant's act was intentional, whether it was unlawful, whether it was dangerous (in the sense that any reasonable person would realise it was bound to subject some other person to the risk of physical harm, albeit not necessarily serious harm), and whether it was the cause of death.

An intentional act

There must have been an act - an omission will not do - and the act itself must have been intentional. But there need not have been any intention to cause harm.

R v Lowe [1973] 1 All ER 805, CA A man D of low intelligence neglected a baby belonging to his partner, which died of dehydration after ten days. He was charged with wilful neglect (contrary to s.1 of the Children & Young Persons Act 1933) and manslaughter, and convicted on both counts. Affirming the former conviction and quashing the latter, Phillimore LJ said mere neglect, even though a statutory crime, was not sufficient for unlawful act manslaughter if D had not foreseen the consequences of his neglect. R v Cato [1976] 1 All ER 260, CA Two heroin users D and V injected one another several times during the course of one night, and V died in the morning. D was convicted of manslaughter, and the Court of Appeal upheld his conviction even though his acts were not "directed against" anyone, his friend having freely consented. The unlawful act, said Lord Widgery CJ, was not the possession of heroin (which is unlawful but not inherently dangerous) but intentionally administering a noxious substance contrary to s.23 of the Offences Against the Person Act 1861. DPP v Newbury & Jones [1976] 2 All ER 365, HL As a train approached a bridge two teenage boys DD pushed a piece of a paving slab over the pa****t of the bridge. The stone struck the train and went through the window, killing the guard, and DD were charged with manslaughter. Upholding their conviction, the House of Lords said a defendant can be convicted of manslaughter by an unlawful act even if he did not foresee his act might cause harm to another. He need not be aware that his act was unlawful, as long as he realises what he is doing, and he need not intend (or even consider the risk of) death or injury. R v Le Brun [1991] 4 All ER 673, CA D hit his wife on the chin (without meaning any serious harm) in an argument outside their house; when she fell unconscious he dragged her away to avoid detection and in so doing caused her head to hit the pavement sufficiently hard to fracture her skull, as a result of which she died. The Court of Appeal upheld a verdict of manslaughter, saying that although the intentional unlawful act was not the direct cause of death, that act and the act causing death were part of "the same sequence of events", and that was sufficient.

An unlawful act

The act must be genuinely unlawful in the criminal sense. A tort is not enough, and neither is an inherently lawful act (such as driving) that becomes unlawful only because it is badly done and/or causes death.

R v Van Butchell (1829) 172 ER 576, Hullock B D was an unlicensed surgeon whose patient died; the judge said the statutory penalty for practising medicine without a licence was irrelevant to a charge of manslaughter so long as D had taken reasonable care. The unlawfulness lay only in the fact that D had no licence, and this was not the cause of death. R v Franklin (1883) 15 Cox CC 163, Field J D threw an empty box from a pier into the sea and accidentally hit a bather, causing his death. The judge said this was not an unlawful act sufficient for manslaughter: the intentional tort (trespass to goods) against the owner of the box was insufficient. Andrews v DPP [1937] 2 All ER 552, HL A van driver D killed a pedestrian by careless driving and was charged with manslaughter. His conviction was upheld by the House of Lords, but Lord Atkin said obiter this was not necessarily an "unlawful act" for the purposes of manslaughter. There is an obvious difference in the law of manslaughter between doing an unlawful act and doing a lawful act with a degree of carelessness that the legislature makes criminal. R v Goodfellow (1986) 83 Cr App R 23, CA A man D set fire to his council house, hoping to be moved to a better one, but his wife, one of his children, and another woman died in the fire. D was convicted of manslaughter on the basis that death had been caused by his intentional, unlawful and dangerous act constituting the crime of arson. R v Humble (1998) unreported A driver D became impatient when a car in front of him failed to pull over to let him pass. He shunted the other car out of his path, across the central reservation of a dual carriageway into the path of oncoming traffic, thereby causing the death of its two occupants. D (who had a long history of driving and other offences) was convicted of manslaughter on the basis of an assault (rather than careless driving per se), and sent to prison for twelve years.

If the defendant's act is inherently lawful (for example, because the defendant acts in self- defence) it does not become unlawful simply because death results. In particular, although a victim cannot legally consent to his own death, his consent may in some circumstances negate the unlawfulness of an "assault".

R v Bradshaw (1878) 14 Cox CC 83, Bramwell LJ A footballer V died as a result of a hard tackle, and his opponent D was charged with manslaughter. The umpires gave evidence that the tackle had been a fair one and the jury acquitted on the facts, but the judge said even play within the rules of the game could be unlawful if D intended or was reckless as to the risk of serious injury. R v Lamb [1967] 2 All ER 1282, CA D and a friend V were playing with a revolver. In the chamber there were two bullets, but neither was opposite the hammer when D, in jest, pointed the gun at V and pulled the trigger. The chamber rotated and V was killed. The Court of Appeal said that since V shared in the joke and did not feel threatened (since both believed the gun to be safe at that time) there was no assault and hence no unlawful act, even though a reasonable person might well say that the situation was objectively dangerous. R v Arobieke [1988] Crim LR 314, CA A man V, seeing D on a railway platform, tried to escape from him and was electrocuted crossing the railway line. There was evidence that V feared serious violence if D found him, and D was charged with manslaughter. Quashing D's conviction, the Court of Appeal said there was no unlawful act in standing on a platform looking into trains, and the conviction could not be sustained even if V's belief were true. R v Scarlett [1993] 4 All ER 629, CA A publican D used some force to eject a drunk V from his premises; perhaps because of his drunkenness, V fell backwards down a flight of steps, struck his head, and died from his injuries. Allowing D's appeal, the Court of Appeal said the objective test of a dangerous act is independent of the possibly subjective test of unlawfulness; if in these circumstances D used no more force than was necessary in the circumstances as he honestly believed them to be, he was not guilty of manslaughter. R v Slingsby [1995] Crim LR 570, Judge J During sexual intercourse, with V's consent, a man D inserted his hand into her ******. His signet ring caused her internal injuries, which neither of them realised at the time but from which from which V later died. D was acquitted of manslaughter on the judge's direction. V had consented to D's doing what he did, and there was no evidence that either of them had contemplated actual bodily harm resulting, so there was no unlawful act on which to found a prosecution.

A dangerous act

The act must be objectively dangerous, in the sense that any sober and reasonable person would realise that it created a significant risk of some injury (not necessarily serious) to someone.

DPP v Newbury & Jones [1976] 2 All ER 365, HL As a train approached a bridge two teenage boys DD pushed a piece of a paving slab over the pa****t of the bridge. The stone struck the train and went through the window, killing the guard, and DD were charged with manslaughter. Upholding their conviction, the House of Lords said a defendant can be convicted of manslaughter by an unlawful act even if he did not foresee his act might cause harm to another, He need not himself be aware of the danger of death or injury, as long as such a danger would be obvious to any sober and reasonable person. R v Mitchell [1983] 2 All ER 427, CA D tried to jump the queue in a busy post office. Another man S objected and D hit S, causing him to fall against several other people including an elderly woman V. V suffered a broken femur, and died in hospital a few days later. D's conviction for manslaughter was upheld; the doctrine of transferred malice was enough that an act directed only against S could still be the unlawful act making D liable for the death of V. R v Dawson (1985) 81 Cr App R 150, CA DD carried out an armed robbery at a petrol station late one night. The 60-year-old attendant pressed an alarm button and the robbers ran away, but shortly after the police arrived the attendant collapsed and died from a heart attack. DD were charged with manslaughter, but their conviction was quashed by the Court of Appeal. They had not intended any physical harm, and causing emotional disturbance was not "an act likely to cause harm" for the purpose of manslaughter, since a reasonable man would not have thought that any physical harm was a likely result. Watkins LJ said the test can only be undertaken upon the basis of the knowledge gained by the sober and reasonable man as though he were present at the scene. R v Watson [1989] 2 All ER 865, CA DD broke into a house where an 87-year-old man lived alone, intending to steal. They confronted him as he awoke, abused him verbally, and then left. The man died of heart failure 90 minutes later, and DD were charged with manslaughter on the basis of their unlawful act of burglary. The trial judge told the jury that in deciding whether the act was dangerous they should take the point of view of a reasonable bystander with the knowledge available to DD; there was no evidence that DD knew the victim's age or state of health when they first broke in, but it must have become obvious to them once they saw him. The Court of Appeal quashed the conviction on a question of causation, but approved the judge's direction as regards the dangerous act. R v Ball [1989] Crim LR 730, CA Following an argument with V, D loaded a gun from a pocket containing mixed live and blank ammunition, and fired at V believing he had loaded it with blanks. In fact there was a live round in the chamber and V was killed. Dismissing D's appeal against his conviction for manslaughter, the Court of Appeal said unlawful act manslaughter required neither negligence nor recklessness. If death resulted from D's intentional unlawful and objectively dangerous act, and the risk of injury was obvious to a reasonable person, it was immaterial that D himself might have considered the matter and believed there was no danger. Attorney-General's Reference (No.3 of 1994) [1997] 3 All ER 936, HL A man D stabbed his pregnant girlfriend V in the abdomen; she gave birth prematurely, and the baby B died some four months later as a result of its immaturity. The House of Lords said that if D intentionally committed an unlawful and objectively dangerous act that caused the death of a living human being, there was no reason why he should not be convicted of "unlawful act" manslaughter. His act clearly carried a risk of some injury to V, even if not necessarily to B, and that (with the other elements) was enough to constitute manslaughter even though it was B rather than V who ultimately died. R v Woolley & Campbell (2003) unreported Two women DD harassed an elderly man V in the street, demanding money and threatening to accuse him of ****. V had a weak heart, and was so frightened that he had a heart attack and died. DD were charged with manslaughter, and the judge told the jury to convict if they were satisfied that DD's harassment was the cause of death, and that a reasonable person would have seen their behaviour as carrying a risk of injury. The jury returned a verdict of guilty.

The cause of death

The unlawful act must have been the cause of death, and the same general principles (including the "eggshell skull" rule) apply to manslaughter as to murder.

R v Swindall & Osborne (1846) 175 ER 95, Pollock CB DD were racing their horses and carts along a public road when they ran over and killed an old man V. At their trial for manslaughter they claimed V had been deaf or drunk or negligent in not getting out of their way, but the judge directed the jury that this was irrelevant and made no difference to DD's guilt or innocence. R v Bennett (1858) 8 Cox CC 74, Cockburn CJ D made fireworks contrary to statute and stored explosives for this purpose. A fire broke out accidentally or by the negligence of others, and a rocket set fire to an adjacent house, killing its occupant. Cockburn CJ said the unlawful act - the keeping of the fireworks - did not in itself cause the death, and D's conviction was quashed. R v Hayward (1908) 21 Cox CC 692, Ridley J D threatened his wife with violence and chased her out of the house, where she died from an unsuspected medical condition aggravated by violent exercise and fright. Ridley J told the jury that death from fright alone, caused by an illegal act such as a threat of violence, was enough to sustain a charge of manslaughter. R v Curley (1909) 2 Cr App R 96, CCA D's wife W fell or was pushed from a window during an argument, and died. At D's trial Phillimore J told the jury that if from a well-founded fear of violence W went to the window to call for help and overbalanced herself it would be a case of manslaughter, and the jury convicted. The Court of Criminal Appeal upheld this part of the judge's direction. R v Woods (1921) 85 JP 272, Avory J A young man D, now aged 21, had been left in charge of his younger brothers and sisters while their father was away at war, but the father had recently returned. One day D struck his younger brother B for being cheeky; B got up and walked out of the room, but soon afterwards collapsed and died because of a very rare and unsuspected thymus condition making him highly susceptible to any sudden shock. D was charged with manslaughter, and the judge directed the jury that he would be guilty if D had struck an unlawful blow, even though it would have caused no serious harm to any healthy person. (The jury acquitted D nevertheless.) R v Mackie (1973) 57 Cr App R 453, CA D threatened his three-year-old stepson with a severe thrashing for some minor misbehaviour. The boy tried to run away but fell downstairs, dislocated his neck, and died. D was charged with manslaughter, and his conviction was upheld by the Court of Appeal. The judge had put four questions to the jury: Was the boy in fear of D? Did that fear cause him to try to escape? Was that fear well-founded? Was it caused by D's unlawful conduct, allowing for the fact that D was in loco parentis and could lawfully administer reasonable punishment? These were the right questions, and the jury had evidently answered each of them affirmatively. Attorney-General's Reference (No.4 of 1980) [1981] 2 All ER 617, CA D pushed V head first over the landing rail so that she landed on her head on the floor below; then he dragged her upstairs by a rope around her neck; finally he cut her neck with a knife before cutting up and disposing of the body. The Court of Appeal said where D has committed a series of acts, each unlawful and dangerous or grossly negligent, as a result of which a person dies, then he can properly be convicted of manslaughter even though it cannot be shown which particular act was the actual cause of death. R v Pagett (1983) 76 Cr App R 279, CA D took his girlfriend G from her home by force and held her prisoner in a flat. When the police surrounded the flat, D came out holding G in front of him as a shield. He fired a shotgun at the police and they shot back; G was hit by three police bullets and died. D's conviction for manslaughter was upheld by the Court of Appeal; his unlawful and dangerous act (directed against the police) was the cause of G's death, and that was sufficient. [The police were subsequently found to have been negligent, and had to pay civil compensation to G's family.] R v Ruby (1988) 86 Cr App R 186, CA In a fight outside a night club, D knocked V down with a single blow of his fist and gave a half-hearted kick to his head; V had a very thin skull and died from the kick. D was found guilty of manslaughter - a rare literal application of the "eggshell skull" rule - but the Court of Appeal took into account that a normal person would not have died in such a situation and reduced D's sentence from five to three years' imprisonment. R v Cheshire [1991] 3 All ER 670, CA D shot V in an argument, and V was taken to hospital where a tracheotomy was performed. Six weeks later, V suffered breathing problems as a result of the tracheotomy scar and died. The hospital had been negligent - perhaps even reckless - in not recognising the likely cause of V's problems and responding to them, but the Court of Appeal said this did not break the chain of causation from the shooting. D's actions need not be the sole or even the main cause of death as long as they contributed significantly to that result; medical negligence did not exclude D's liability unless it was so independent of his acts and so potent as to make his own contribution insignificant. Only in the most extraordinary and unusual case would treatment, whether right or wrong, given in good faith by a generally competent doctor, be regarded as independent of the original injury. R v Williams & Davis [1992] 2 All ER 183, CA DD picked up a hitchhiker V and tried to rob him. V jumped from the car at about 30 mph, and suffered head injuries from which he died. Quashing DD's conviction for manslaughter, the Court of Appeal said the nature of the supposed threat was important in deciding both the foreseeability of some harm (not necessarily serious) to the victim from the threat itself, and the proportionality of his response. If V's response fell outside the range of responses which might be expected from a victim in his situation, allowing for any particular characteristic and for the fact that in the agony of the moment he might act without proper thought, then it would break the chain of causation. R v Corbett [1996] Crim LR 594, CA A man D was convicted of manslaughter: following an argument he had head-butted V, causing V to fall into the gutter where he was struck and killed by a passing car. The Court of Appeal affirmed the conviction and said this was a foreseeable result of D's assault. The assault could thus be regarded as a cause of the death. R v Dunne (1999) unreported A man D shouted at a 70-year-old man V and kicked his car; V was clearly frightened, and several minutes later he got out of the car, collapsed and died. The post-mortem examination showed heart failure brought on by emotional stress; D was convicted of manslaughter and sent to prison for nine months. R v Shohid [2003] All ER (D) 216 (Dec), CA A group of men including D attacked V and V's friend on a railway platform and forced them onto the track. The friend climbed back onto the platform, but V was preventing from doing so by some of the men (not including D). Some 20 seconds later V was struck by a train and killed. Affirming D's conviction for manslaughter, the Court of Appeal said his unlawful and dangerous act had been a non-trivial cause of V's death, and it was not necessary that it should have been the sole cause. R v Corion-Auguiste (2004) unreported A young man D threw an "air bomb" firework during the rush hour in an enclosed bus station. Other passengers panicked and rushed for the exits; an elderly lady was knocked over in the rush, struck her head, and died later in hospital. D was convicted of unlawful act manslaughter and sentenced to 12 months' detention. R v Kennedy [2007] UKHL 38 At the request of a man Bosque, the defendant D filled syringe with heroin and gave it to B so that B could inject himself. B did so, and subsequently died from the effects of the drug. D was charged with unlawful act manslaughter. Quashing his conviction, the House of Lords said B's voluntary act in injecting himself broke the chain of causation between D's supply and B's death. Section 23 of the Offences Against the Person Act 1861 (on which the prosecution relied) deals with the situation in which a defendant causes a noxious substance to be administered to the victim, but a defendant is not to be treated as causing the victim to act in a certain way if the adult victim makes a voluntary and informed decision to act in that way rather than another. R v Carey [2006] EWCA Crim 17 Three girls DD started a fight in which a fourth girl V suffered only minor bruises. V later ran away but collapsed after running about 100m and died from an inherent heart disease aggravated by the running. DD were convicted of "unlawful act" manslaughter grounded in the unlawful act of affray, but these convictions were quashed on appeal. V had not been running to escape from a serious threat but simply to get home, the only dangerous act perpetrated on V (a single punch) was not the cause of her death, and the other violence and threats of violence used in the course of the affray were not dangerous, inasmuch as a reasonable person would not have foreseen their causing any physical harm to V. R v D [2006] EWCA 1139 After many months of abuse (mainly psychological) from her husband D, a woman committed suicide. D was charged with manslaughter, but the Court of Appeal affirmed the trial judge's ruling that the evidence presented ruled out such a conviction. Obiter, however, unlawful violence against a vulnerable victim might form a basis for manslaughter if it was a material cause of the victim's death even by suicide. [But quaere, is suicide ever a reasonable response not breaking the chain of causation?]

MANSLAUGHTER BY GROSS NEGLIGENCE

Manslaughter by gross negligence depends on the defendant's having a duty of care towards the victim, on his being in breach of that duty, on that breach of duty causing the victim's death, and on the defendant's breach of duty being so serious in itself as to amount to "gross" negligence.

Whether a duty of care existed is in theory a matter for the jury to determine as a question of fact (R v Willoughby (2004) Times 21/12/04), but there may be a relationship (such as doctor/patient) in which such a duty clearly exists and the judge may direct the jury accordingly. The jury have then to decide whether the defendant breached that duty by falling short of the standard of the reasonable person (or the reasonable doctor, driver, &c), and whether that breach was the cause of the victim's death. Finally, the jury must decide, applying their own common sense, whether the defendant's incompetence, idleness, carelessness or recklessness (in the everyday sense of that word) was so serious as to amount to gross negligence completing the crime of manslaughter.

Duty of care

There is a wide-ranging duty not to cause physical harm to other people by one's actions. Some common duty situations are well known - driver/passenger, doctor/patient, teacher/pupil and so on - but there is a more general duty based on Lord Atkin's "neighbour principle".

R v Bateman (1925) 19 Cr App R 8, CCA A doctor D attending a difficult birth spent an hour trying to turn the child in the womb, but it was born dead. He then tried to remove the placenta but took away part of V's womb with it, and he subsequently delayed in sending V to hospital. V died and D was charged with manslaughter. The Court of Criminal Appeal allowed his appeal against conviction, but there was no doubt that a doctor owes a duty of care to his patients. Donoghue v Stevenson [1932] AC 562, HL P went to a café with a friend, who bought her a bottle of ginger beer. After drinking most of it, P found a decomposed snail in the bottle and became ill. The House of Lords said the manufacturers had a duty of care to the consumer of their product, and found in P's favour. Going further, Lord Atkin said you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then, in law, is my neighbour? The answer seems to be, persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question. R v Wacker [2003] 4 All ER 295, CA A lorry driver D caused the deaths of 58 illegal immigrants travelling in the back of his lorry by thoughtlessly blocking their only ventilation inlet. He was convicted of manslaughter and sentenced to six years' imprisonment on each count, to run consecutively with an eight-year sentence for conspiring to smuggle immigrants. His appeal failed: a driver has a duty of care to his passengers, and the fact that the defendant and the victims were jointly engaged in a criminal activity was no defence.

Subsequent developments in the civil law of negligence (discussed in Unit 2) have imposed additional tests of proximity and reasonableness, but these are unlikely to cause any difficulties when a person causes fatal harm to another by his actions. In some specific circumstances, however, the defendant may also have a duty not to allow another person to suffer physical harm through his inaction.

R v Nicholls (1874) 13 Cox CC 75, Brett J A baby died of malnutrition, and its grandmother (who had taken in the baby when her own daughter, the baby's mother, had died) was charged with manslaughter. The judge said that as the baby's grandmother she was not bound by law to look after it, but if a grown-up person chooses to undertake the charge of a human creature helpless from infancy, simplicity, lunacy or other infirmity he is bound to exercise that charge without (at all events) wicked negligence. (The jury found her not guilty on the facts.) R v Curtis (1885) 15 Cox CC 746, Hawkins J The "relieving officer" of a local authority, whose duty it was to make provision for the destitute, was found guilty of manslaughter after refusing help to the mother of a sick child which later died. He was a public officer with a statutory duty to act and had failed to do so. R v Pittwood (1902) 19 TLR 37, Wright J D was a level crossing keeper who negligently left open the crossing gate. This led to the death of a carter whose cart was struck by a train, and D was convicted of manslaughter. He had a duty (arising from his contract of employment) to shut the gate, and although this duty was owed to his employers rather than to the public at large, it was enough that his negligent failure to act could lead to conviction. R v Stone & Dobinson [1977] 2 All ER 341, CA D1 and D2 had D1's elderly sister living with them; when she became incapable of looking after herself they neglected to care for her and she died. DD were convicted of manslaughter; on the evidence, the jury were entitled to find as a matter of fact that S and D had voluntarily taken on themselves the duty of caring for F, and that they had failed in that duty. R v Miller [1983] 1 All ER 978, HL A tramp took shelter in an empty house, and went to sleep with a cigarette in his hand. He awoke a little later to find that he had set the mattress alight, so he got up, went into another room, and went to sleep there. The fire took hold and the house burned down. D's conviction for arson was upheld by the House of Lords, who said once he had created a danger of harmful consequences by his inadvertent action he had a duty to try to avert those consequences; his failure to do so could in those circumstances be a crime. R v Harris & Harris (1993) unreported Two parents were found guilty of the manslaughter of their daughter after refusing to allow doctors to treat her diabetes with insulin. Their duty to act arose from their relationship: parents have a duty to take proper care of their children, and if they fail to do so they can be criminally liable for the consequences.[Professors Smith & Hogan suggest adult children may have a similar duty to their infirm parents.] R v Khan (1998) Times 7/4/98, CA D supplied heroin to a 15-year-old girl V, giving her a dose twice the normal amount. V, a first- time user, took the heroin; she fell into a coma on D's premises and died several hours later. D, who had not obtained medical assistance for V, was convicted of manslaughter and other lesser offences. Allowing D's appeal on other grounds, Swinton Thomas LJ said there might be a duty of care by a drug dealer towards a customer, but such an enlargement of the present range of duty situations would require a clear ruling from the judge and an appropriate direction to the jury. R v Singh [1999] Crim LR 582, CA The manager D of a privately-owned block of flats was convicted of manslaughter after one of the tenants V died of carbon monoxide poisoning: there was evidence that the gas fires in many of the flats were unsafe, and there had been complaints from other tenants (though not from V). The Court of Appeal agreed that D had a duty of care and affirmed a suspended prison sentence. R v Browning (2000) unreported The landlords DD of a pub were charged with manslaughter by gross negligence after a customer died as a result of drinking three-quarters of a pint of mixed spirits, allegedly as a bet. Turner J was highly critical of DD's behaviour, but directed a verdict of not guilty after ruling that as a matter of law they had no duty of care towards the victim.

Causing death

It must be proved that the defendant's negligence was the cause of the victim's death, and that had the defendant exercised proper care the death would not have occurred. (The same rules apply as elsewhere in criminal law in relation to "eggshell skulls" and medical intervention.)

R v Dalloway (1847) 2 Cox CC 273, Erle J A man D was driving a cart on the road, with the horse's reins not in his hands but loose on the horse's back. A three-year-old child ran into the road a few yards in front of the horse, and was struck by one of the cart wheels and killed. Erle J told the jury that if D could have prevented the child's death by using the reins then they should find him guilty of manslaughter, but that if he could have done nothing to prevent it then he would not be guilty in spite of his negligence. (The jury acquitted.) R v Armstrong [1989] Crim LR 149, Owen J A drug addict D supplied another man V with heroin and equipment. V (who had already drunk a large amount of alcohol) injected himself with heroin and died shortly afterwards. At D's trial for manslaughter, there was conflicting evidence as to whether the heroin contributed to V's death or whether V would have died from the alcohol alone. The judge directed an acquittal: if the experts were not sure as to the cause of death, he said, the jury could not possibly be.

Gross negligence

The level of negligence required for manslaughter is something more than ordinary civil negligence. In Stone & Dobinson (above), Geoffrey Lane LJ said obiter that mere inadvertence is not enough: D must be proved to have been indifferent to an obvious risk of injury to health, or actually to have foreseen the risk but to have determined nevertheless to run it.

R v Nicholls (1874) 13 Cox CC 75, Brett J A baby died of malnutrition, and its grandmother (who had taken in the baby when her own daughter, the baby's mother, had died) was charged with manslaughter. She might have been careless, said the judge, in leaving the baby for long periods in the care of her 9-year-old son, but not wickedly so: she was understandably reluctant to put the child "on the parish", she had limited means and had to go to work each day, and she had at least ensured that there was food in the house. (The jury found her not guilty.) R v Bateman (1925) 19 Cr App R 8, CCA A doctor D attending a difficult birth spent an hour trying to turn the child in the womb,but it was born dead. He then tried to remove the placenta but took away part of V's womb with it, and he subsequently delayed in sending V to hospital. V died and D was charged with manslaughter. The Court of Criminal Appeal allowed his appeal against conviction, and said the trial judge had misdirected the jury as to the degree of negligence needed to sustain a conviction. In order to establish criminal liability, said Lord Hewart CJ, the facts must be such that in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment. Andrews v DPP [1937] 2 All ER 552, HL A van driver D killed a pedestrian by careless driving and was charged with manslaughter. Lord Atkin expressly approved the judgment of Lord Hewart CJ in Bateman, and restated the rule in different words: in cases of manslaughter, he said, a simple lack of care such as will constitute civil liability is not enough. For the purpose of the criminal law there are degrees of negligence, and a very high degree of negligence is required to be proved before manslaughter is established. R v Church [1965] 2 All ER 72, CCA After unsuccessful sex with a woman V in a van, D attacked her and knocked her unconscious. He tried to revive her but without success, and after about half an hour, thinking she was dead, he panicked and threw her body into a nearby river. She was not in fact dead but died from drowning, and D was charged with manslaughter. Affirming his conviction, Edmund Davies J said he was guilty of criminal negligence in not checking whether V was still alive, and that in any case V died of an unlawful dangerous act. R v Litchfield [1998] Crim LR 507, CA A ship foundered off the Cornish coast and three crew members were drowned. The ship's master was tried for manslaughter, having allegedly followed an unsafe course and relied too heavily on his engines even though he knew the fuel was contaminated. Affirming his conviction and sentence of 18 months' imprisonment, the Court of Appeal said it is up to the jury to decide whether or not negligence is gross negligence. They rejected an argument that since negligently endangering a ship is a statutory offence, it is nonsense to let the jury decide whether a defendant's behaviour amounts to a crime: the question for the jury is whether it amounts to the crime of manslaughter. R v Singh [1999] Crim LR 582, CA The manager D of a privately-owned block of flats was convicted of manslaughter after one of the tenants V died of carbon monoxide poisoning: there was evidence that the gas fires in many of the flats were unsafe, and there had been complaints from other tenants (though not from V). The Court of Appeal approved the trial judge's jury direction that a conviction would require circumstances such that a reasonably prudent person would have foreseen a serious and obvious risk not merely of injury, even serious injury, but of death. The jury evidently did find such circumstances, and D's appeal was dismissed.

It remains in the hands of the jury to decide as a matter of fact whether the defendant's negligence was sufficiently serious to amount to manslaughter, and the following cases are merely illustrative.

R v Edwards (2001) unreported A couple DD who allowed their seven-year-old daughter and a friend to play on a railway bridge, promising to warn them if a train approached, were convicted of manslaughter after the girls were killed by a train which DD had not seen. They had shut their eyes to an obvious and serious danger - or had decided to take the risk - and this was gross negligence. R v Finlay (2001) unreported A Bristol Scout Leader D was acquitted of manslaughter after a ten-year-old Scout fell to his death on Snowdon. There was evidence of several breaches of proper safety procedures, but the jury clearly felt D's conduct did not show such disregard for life and safety as to amount to gross negligence. R v Hood (2003) unreported A 57-year-old man D was acquitted of murder but convicted of the manslaughter of his invalid wife V by gross negligence. She was admitted to Middlesbrough General Hospital suffering from multiple injuries, and died of pneumonia a few weeks later. The jury were not sure that D had inflicted the inuries that led to V's death, but found him guilty of manslaughter on the basis that he had failed to get medical attention for some two weeks. D's drunkenness during much of that time was no excuse, said the judge, and D was sentenced to four years' imprisonment. R v Wood & Hodgson (2003) unreported A ten-year-old girl (Jade Slack) commonly visited neighbours DD to play with their baby and to watch videos. On one such visit she found ecstasy tablets hidden in a cigarette packet and took about five of them. When she became ill, DD tried to treat her themselves and did not call an ambulance for about 1½ hours. V died in hospital and DD were charged with manslaughter. The prosecution alleged gross negligence in allowing V to get hold of the tablets, but there was evidence that DD had taken some care to hide them from her. The jury evidently decided that although DD had been negligent, their conduct had not shown a sufficiently high level of disregard for life and safety, and found them not guilty. R v Misra & Srivastava (2004) Times 13/10/04, CA A patient died through the negligence of two doctors, who were convicted of manslaughter by gross negligence. Affirming the convictions, Judge LJ said the offence is compatible with human rights (specifically, the right not to be punished for an act not defined as an offence at the time it was performed). The jury are not (as the appellants argued) asked to define a hitherto unknown crime, but to decide as a matter of fact whether the defendant's negligence was so reprehensible as to amount to "gross" negligence (thereby meeting the pre-existing definition of the crime).

RECKLESS MANSLAUGHTER

Reckless manslaughter has had a chequered career. In the 1980s it seemed to replace manslaughter by gross negligence; then in the 1990s gross negligence made a comeback and recklessness vanished; then in the 2000s there were some indications that both may now exist in parallel. The reality is that gross negligence and recklessness are almost synonymous, and that one will very rarely exist without the other.

R v Seymour [1983] 2 All ER 1058, HL During an argument with his mistress V, D drove his lorry towards her car to push it out of the way. The collision was quite violent, and V was crushed between the two vehicles and killed. D was charged with manslaughter, and the judge directed the jury that a driver is guilty of driving recklessly if he deliberately disregards the obligation to drive with due care and attention or is indifferent whether he does so and thereby creates a risk of an accident which a driver driving with due care and attention would not create. D's conviction was upheld by the House of Lords, who said this objective test of recklessness is the appropriate test in cases of manslaughter. Kong Cheuk Kwan v R (1986) 82 Cr App R 18, PC (Hong Kong) Two hydrofoils collided in good weather in the harbour at Hong Kong and two passengers were killed; D and other officers of one of the vessels were charged with manslaughter. Allowing their appeal against conviction, the Privy Council said the judge had confused the different types of manslaughter: the test set out in Seymour as applying to motor manslaughter was the one to be used in cases such as this. It was no longer necessary or helpful to make references to compensation or negligence. R v Sulman & Prentice, R v Holloway [1993] 4 All ER 935, CA Two doctors DD1 killed a patient by a misguided injection. An electrician D2 installed some new wiring in a house, but did so very carelessly and caused some water pipes to become "live"; the householder took hold of the cold tap while standing on the floor in bare feet, and suffered a severe electric shock from which he died. Their convictions for manslaughter were quashed by the Court of Appeal. The decision in Seymour, said Lord Taylor CJ, is a direct authority in cases of motor manslaughter only, where death is caused by reckless driving. In all other cases of manslaughter, the requirement is not recklessness but gross negligence as defined in Bateman and Andrews. R v Adomako [1994] 3 All ER 79, HL D was an anaesthetist. During an operation, the breathing tube accidentally became detached from the machine and the supply of oxygen to the patient was stopped. D did not notice this for almost five minutes, until the patient's heart also stopped and an alarm sounded. The patient could not be resuscitated, and D was charged with manslaughter. His appeal against conviction was dismissed and his sentence (6 months' imprisonment, suspended for a year) confirmed. The ordinary principles of the law of negligence, said Lord Mackay LC, apply to ascertain whether or not the defendant has been in breach of a duty of care towards the victim who has died. If such breach of duty is established the next question is whether that breach of duty caused the death of the victim. If so, the jury must go on to consider whether that breach of duty should be characterised as gross negligence and therefore as a crime. This will depend on the seriousness of the breach of duty committed by the defendant in all the circumstances in which the defendant was placed when it occurred. The essence of the matter, which is supremely a jury question, is whether, having regard to the risk of death involved, the conduct of the defendant was so bad in all the circumstances as to amount in their judgment to a criminal act or omission. R v Lidar (1999) unreported, CA A man D drove away from a pub with two passengers in the car and a third man leaning in through the car window. After about 200 metres (by which time the car was doing some 30 mph) the third man caught his foot in a wheel and fell completely out of the car; he was run over by another vehicle and died of his injuries. Affirming D's conviction (for which he was sentenced to five years' imprisonment), Evans LJ said there is nothing in Adomako to exclude "reckless manslaughter" where the defendant is aware of a significant (highly probable) risk of serious injury.

The Law Commission in their recent report on homicide (Law Com 304, 2006) propose that involuntary manslaughter (or in their terms simply "manslaughter") should consist of (i) killing through gross negligence and (ii) killing through the commission of a criminal act, intending to cause injury or aware of a serious risk of causing injury. These proposals, if adopted, would dispose of the last remains of "reckless manslaughter", but more significantly would replace the current objective test of dangerousness (in unlawful act manslaughter) with a subjective test based on the defendant's own knowledge or foresight.

CRITICAL EVALUATION

In an A Level examination (but not in the new AQA specification for 2010 and onwards), candidates may be asked to comment on the law of involuntary manslaughter (possibly coupled with voluntary manslaughter) and the reforms that might be desirable. This clearly gives room for the expression of personal views - lawyers and others disagree as to the problems and the solutions - but the following are among the points that might reasonably be made.

  • Manslaughter is a very wide-ranging offence, from near-murder (Nedrick) to near-accident (Mitchell), and can be committed in many different ways. Judges have discretion to pass sentences appropriate to the individual circumstances of each crime, but is it right that so many very different offences should carry the same label?
  • The rules of causation might be challenged: should an assailant be held legally responsible for a death whose immediate cause was medical negligence (Cheshire) or the victim's refusal of life-saving treatment (Blaue)?
  • The mens rea for unlawful act manslaughter can be very low - no more than the intention to do the unlawful act, without necessarily any foresight of death (Mitchell).
  • The unlawful act must be objectively dangerous: the risk (of some injury to someone) must have been obvious to a reasonable adult of normal intelligence (Newbury & Jones). This takes no account of the defendant's age or mental capacity, whereas in non-fatal assaults the test is one of subjective recklessness.
  • Gross negligence manslaughter is based on the civil concept of negligence: given the fundamental differences between civil and criminal law (e.g. in standard of proof) this may be confusing. Would it be better to substitute recklessness, either objective (Caldwell, Seymour) or subjective (Cunningham)?
  • The Bateman test is very vague, and although in theory it requires the jury only to decide whether the defendant's negligence was "gross", in practice it requires them to determine the boundaries of manslaughter.

OTHER OFFENCES

Corporate manslaughter

Until recently, a company or other corporation could be found guilty of manslaughter by gross negligence only if it could be shown that its most senior officers had shown the necessary "disregard for life and safety". This was a very difficult test to satisfy unless the company was a small one.

R v OLL Ltd [1996] 2 Cr App R (S) 295, CA Four teenagers drowned in Lyme Bay after their canoes capsized in heavy seas. The evidence was that they had been inadequately equipped, trained and supervised, and that the supervisor had delayed unduly in calling for assistance; moreover, the company had been warned twelve months earlier of dangerous flaws in some of its working practices. The manager of the centre from which the victims had set out was acquitted, but the managing director of the controlling company, and the company OLL Ltd itself, were convicted of manslaughter by gross negligence. Attorney-General's Reference (No.2 of 1999) [2000] 3 All ER 182, CA Great Western Trains were charged with manslaughter following a rail crash in which seven people were killed, but the judge directed their acquittal on finding no evidence that the managing director or any other named senior officer of the company had been sufficiently negligent. The Court of Appeal said that as the law then stood there was no separate offence of "corporate manslaughter". A non-human defendant such as a company could not be convicted of manslaughter unless there was evidence to show the guilt of an identifiable human being for the same crime.

In practice, companies whose inadequate safety procedures led to death were normally prosecuted under the Health and Safety at Work Act 1974.

R v Great Western Trains (1999) unreported Seven people were killed in a rail crash after the driver (who was apparently packing his bags at the time) went through two warning signals and a red "stop" signal; the train's automatic warning system had not been working. Following the judge's dismissal of manslaughter charges (as above), GWT pled guilty to an offence under the 1974 Act and were fined £1½ million. R v British Steel (1999) unreported A worker fell through a manhole which had been left open for about four months in a dimly-lit corridor, and was killed. DD pled guilty to a breach of Regulations requiring all pits to be properly covered, and were fined £200 000.

A new record was set in August 2005, when Transco (formerly British Gas) were fined £15 million by a Scottish court for breaches of health and safety rules that led to the death of four people in a gas explosion. However, Transco had made a pre-tax profit of some £1.4 billion in the previous year, making this fine equivalent to a fine of about £250 imposed on a person earning an average salary.

The Corporate Manslaughter and Corporate Homicide Act 2007 is due to come into force in April 2008. It abolishes the common law offence of manslaughter by gross negligence so far as corporations are concerned (though the individual offence remains) and creates a specific offence of corporate manslaughter. This new offence is committed by an organisation if the way in which its activities are manages or organised causes a person's death and amounts to a gross breach of a relevant duty of care owed to that person.

The offence applies to most public bodies as well as to businesses, but matters of public policy, military operations and certain other areas are excluded. In most cases, whether or not there was a gross breach of duty is a matter for the jury, who (under s.8(2)) must consider how serious the organisation's failure was and how much of a risk of death it posed.

An organisation convicted of corporate manslaughter faces an unlimited fine; the judge may also make a "remedial order" requiring the organisation to take certain specified steps to improve its working practices.

Causing death by dangerous driving

The Road Traffic Act 1991 creates the offence of "causing death by dangerous driving", triable only on indictment and punishable by up to fourteen years' imprisonment. This is a strict liability offence: the prosecution need not prove anything about the driver's state of mind other than his intention to drive. The House of Lords said in R v Seymour [1983] 2 All ER 1058 that a charge of manslaughter might exceptionally be appropriate in a motor death case, where D's actions created a very high risk of death, but that the prosecution must choose one or the other and cannot pursue both.

Road Traffic Act 1988 s.2A (as inserted by the 1991 Act) A driver is deemed to be driving dangerously if the way he drives falls far below what would be expected of a competent and careful driver, and it would be obvious to a competent and careful driver that driving in that way would be dangerous or that driving the vehicle in its current state would be dangerous ... either of injury to any person or of serious damage to property.

Section 20 of the Road Safety Act 2006 creates a further offence of causing death by careless or inconsiderate driving, punishable by up to five years' imprisonment, to cover cases where the driving is bad but falls short of "dangerous" as defined above.

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cases on non-fatal offences

Assault

The actus reus of assault in its narrow sense is an act (or nowadays, words or even silence) by which D causes V to apprehend immediate and unlawful personal violence. It would probably be an assault if D pointed an unloaded gun at V: this was the view expressed by Parke B in R v St George (1840) 173 ER 921, and although it was doubted by Lord Abinger CB in Blake v Barnard (1840) 173 ER 985 it seems to make sense. But V must be aware of a real threat: if he is asleep and unaware of the axe held above his head, or if he knows the gun pointed at him is not loaded, then there can be no assault.

Tuberville v Savage (1669) 86 ER 684, KB In an argument, P placed his hand on his sword and said "If it were not Assize time I would not take such language ..."; D struck and wounded P, but claimed P's initial assault as provocation. The Court said P's conduct did not amount to an assault: it was in fact Assize time, so there was no immediate threat. Mead & Belt's Case (1823) 168 ER 1006, Holroyd J D1 had angered local boatman by informing the Customs of their smuggling, and they threatened to come at night and burn down his house. In the middle of the night they came "singing songs of menace"; D1 fired a pistol and a man was killed. D1 was charged with murder and D2 as an accomplice. The judge said no words or singing alone could amount to an assault justifying shooting in self-defence, but invited the jury to consider whether any actions were also performed. In the event, D2 was acquitted and D1 convicted of manslaughter. Stephens v Myers (1830) 172 ER 735, Tindal CJ Following an argument, D advanced towards V with his fists raised but was stopped by another person before coming within striking range. Tindal CJ said there could nevertheless have been an assault, and the jury convicted. It was enough that V was put in apprehension even though the battery (the actual striking) never occurred. Read v Coker (1853) 138 ER 1437, CP A rent collector P entered D's workshop and refused to go until the rent was paid. D and his men surrounded P, rolling up their sleeves, and servants threatened to break P's neck if he did not go. The judge said this was an assault: the condition attached to the threat was not enough to nullify it. R v Wilson [1955] 1 All ER 744, CCA D was found poaching and the gamekeeper tried to arrest him; D called "Get out the knives". Dismissing D's appeal against his conviction for common assault, Lord Goddard CJ said obiter that words such as those were capable of being an assault on their own, even without any accompanying acts. R v Lamb [1967] 2 All ER 1282, CA D and a friend V were playing with a revolver. In the chamber there were two bullets, but neither was opposite the hammer when D, in jest, pointed the gun at V and pulled the trigger. The chamber rotated and V was killed. The Court of Appeal said since V shared in the joke and did not feel threatened (since both believed the gun to be safe) there was no assault and hence no unlawful act to support D's conviction for manslaughter. Logdon v DPP [1976] Crim LR 121, HC QBD A Customs officer V called on D to discuss his VAT returns; D showed V a gun in a drawer and told her he would hold her prisoner until money owing him was repaid. D then handed V the gun and pointed out that it was actually a replica and would not fire. Affirming his conviction for assault, the High Court said it was enough that V had reasonable cause to fear that force was about to be inflicted on her; the conditional nature of the implied threat, and the fact that D had neither the means nor the intention of carrying it out, were irrelevant. Smith v Chief Superintendent, Woking Police [1983] Crim LR 323, HC QBD D was looking through V's closed bedroom window into her ground floor flat late at night. He was convicted under the Vagrancy Act 1824 of trespassing with an unlawful purpose, the unlawful purpose being assault, and the High Court upheld his conviction. V had feared violence sufficiently immediate to constitute assault even though D would have had to break the glass and climb into the room (by which time V could have escaped via the door) before he could have applied any force. R v Constanza [1997] Crim LR 576, CA A man D was convicted of assault occasioning actual bodily harm; the evidence was that he had stalked his victim for two years, harassing her by repeated telephone calls, letters, unwanted visits and graffiti on her front door, but that he had neither taken nor expressly threatened any immediate physical action against her. Affirming his conviction, Schiemann LJ said D lived near V's home, and V reasonably feared something might happen at any time. It was enough for the prosecution to show a fear of violence at some time not excluding the immediate future. R v Ireland [1997] 4 All ER 225, HL A man D, on legal advice, pled guilty to assault causing actual bodily harm and was imprisoned for three years after making a large number of unwanted telephone calls to three women; when they answered the telephone there was nothing but silence. Lord Steyn, with whom the other judges agreed, expressly rejected the views expressed in Meade & Belt's Case, and said the proposition that a gesture may amount to an assault, but that words can never suffice, is unrealistic and indefensible. A thing said is also a thing done, and there is no reason why something said should be incapable of causing an apprehension of immediate personal violence.

Battery

In DPP v Taylor [1992] 1 All ER 299 Mann LJ said common assault clearly includes the actual use of unlawful force to a person, formerly known as battery. In such cases, he said, the charge should be that D "did assault by beating ...". The force applied need not be serious - it need be no more than the slightest touch and P need not even be aware of it - but the law is properly reluctant to concern itself with trifles.

Cole v Turner (1704) 87 ER 907, Holt CJ In an action for battery, the judge said the least touching of another in anger is a battery. If two people meet in a narrow passage, there is no battery if one gently touches the other without violence or harm. But if one uses violence to force his way rudely past the other, that is a battery. R v Day (1845) 1 Cox CC 207, Parke B D slashed P's clothes with a knife. The judge said this was enough: it is an assault on a man's person to inflict injury to the clothes on his back. In the ordinary case of a blow on the back there is clearly an assault, though the blow is received by the coat on the person. Collins v Wilcock [1984] 3 All ER 374, DC A policewoman P wanted to question a woman D in the street, believing her to be a prostitute, and took hold of her arm. D resisted and was charged with assaulting a constable in the execution of her duty. The Divisional Court said since P did not claim to have been exercising a specific power to "stop and search", her taking D's arm was itself an assault, taking her outside the execution of her duty and entitling D to use reasonable force in self-defence. The slightest touch is capable in principle of being an assault, said Goff LJ, though there is a general exception for the exigencies of everyday life. No one can complain about a certain amount of jostling in a supermarket or a busy street, and a party guest must expect to have his hand clasped or his back slapped within reasonable limits. Likewise, no assault is committed if D touches P's arm or shoulder (with minimum force) to gain his attention, even more than once, but it may become an assault if the touching continues after P is clearly aware of D's solicitation and chooses to ignore it, or if a mere touch is replaced by a physical restraint. R v Thomas (1985) 81 Cr App R 331, CA A school caretaker was convicted of indecent assault after taking hold of the hem of a 12-year-old girl's skirt. His appeal was allowed: the act was not inherently indecent and there was no evidence of circumstances making it so. But Ackner LJ said obiter that there can be no dispute that if you touch a person's clothes while he is wearing them, that is equivalent to touching him. Wilson v Pringle [1986] 2 All ER 440, CA A schoolboy D in fun seized the bag over P's shoulder, thereby causing him injury, and P sued for the tort of assault. The Court of Appeal said P must establish an intentional and hostile touching of one person by another, though not necessarily an intent to injure. A plaintiff who cannot prove hostility on the defendant's part is likely to fail, because in a crowded world people must be considered to take upon themselves some risk of injury from the lawful acts of others. F v West Berkshire Health Authority [1989] 2 All ER 545, HL Doctors sought permission to sterilise a 36-year-old woman with a mental age of five, who had become sexually active but who because of her condition she was incapable of giving informed consent. Lord Goff was clear that a man who seizes another and forcibly drags him from the path of an oncoming vehicle, thereby saving him from injury or death, commits no wrong. But he doubted any requirement of hostility such as was suggested in Wilson v Pringle: a prank getting out of hand, or an over-friendly slap on the back - any touching without lawful excuse, in fact - was capable of being an assault.

A battery requires some positive act - a failure to act is not normally enough - but may be committed indirectly as well as directly.

R v Martin (1881) LR 8 QBD 54, CCR Shortly before the end of a performance in a crowded theatre, D (for a joke) switched off the lights on the main staircase and put an iron bar across the doorway. As a result, several people were injured and D was charged with inflicting grievous bodily harm. Upholding his conviction, the Court for Crown Cases Reserved said an assault as such was not essential to the offence; some unlawful act and the foresight of harm would be enough. "Inflict" meant no more than "cause" and did not require a face-to-face assault. Fagan v Metropolitan Police Commissioner [1968] 3 All ER 442, DC A police officer V told D to park his car at a particular place, and in doing so D accidentally drove onto V's foot. V asked D to remove the car from his foot, but D switched off the engine and refused to move for some time. D was charged with assaulting a constable, and his conviction by magistrates was upheld by Quarter Sessions on the basis of his deliberate failure to move the car. The Divisional Court upheld his conviction but disapproved the reasoning; a mere omission to act, they said, cannot amount to an assault. But here there was a continuing act from the time the wheel ran onto V's foot until it was removed, and since that was intentional at least in part it was sufficient. Haystead v DPP [2000] 3 All ER 890, DC A man D punched a woman W twice in the face, causing W to drop the child she had been holding. The child hit his head on the floor, and D was convicted of assaulting the child by beating (i.e. battery). Affirming the conviction, Laws LJ quoted with approval a passage from Smith & Hogan and said that although most batteries are directly inflicted, it is not essential that this should be so. And even if D did not intend the battery to the child, he was certainly reckless.

Mens rea

The mens rea of common assault can be intention or recklessness. For battery, it is an intention to apply unlawful physical force to another, or recklessness that such force may be applied. For assault in the narrow sense, it is intention or recklessness that another person may apprehend the immediate application of unlawful force, though arguably the intention to apply that force should also suffice.

R v Cunningham [1957] 2 All ER 412, CCA D broke into a gas meter in his cellar (intending to steal the money it contained) and left the broken pipe so that gas percolated through to the house next door and affected Mrs W. The Court of Criminal Appeal quashed his conviction for malicious poisoning; the judge had misdirected the jury as to the meaning of "maliciously". It was a legal term of art equivalent to recklessness, and required that D foresaw the risk of injury but went ahead anyway. R v Venna [1975] 3 All ER 788, CA A man D was being arrested following a scuffle outside a pub; he kicked out wildly and struck a policeman V, breaking a small bone in his hand. D was convicted of assaulting a constable, and his conviction was upheld by the Court of Appeal. The offence of common assault, they said, requires intention to cause the victim to apprehend immediate and unlawful personal violence or recklessness as to whether such apprehension is caused, or (for battery) intention or recklessness as to the application of force. R v Spratt [1991] 2 All ER 210, CA D was firing an air pistol from the window of his flat, aiming at a target in the yard below. One of the shots hit a 7-year-old girl playing in the yard, whom D had not known was there. His conviction for assault causing actual bodily harm was quashed by the Court of Appeal; Lord Roskill's remarks in Seymour about the general application of Caldwell/Lawrence recklessness were obiter, they said, and should not be applied to assault. Recklessness as envisaged in Venna was clearly subjective recklessness (that is, that D foresaw the risk but went ahead regardless), because the judgment in Venna speaks of recklessness and intention as being often almost indistinguishable. R v Savage, R v Parmenter [1991] 4 All ER 698, HL D1 became involved in an argument in a pub, and threw a pint of beer over V1's head; the glass slipped from her hand and caused cuts to V1's wrist. The Court of Appeal allowed her appeal against a conviction for unlawful wounding and substituted assault causing actual bodily harm; D1 appealed to the House of Lords. D2 handled his baby son V2 excessively roughly and caused injuries to the bones of V2's arms and legs. The Court of Appeal quashed his conviction for inflicting grievous bodily harm, and the Crown appealed to the House of Lords. In conjoined appeals, the House of Lords confirmed that the mens rea of assault (including battery) is intention or recklessness as to the application or apprehension of unlawful force, but did not say expressly whether they were speaking of subjective or objective recklessness. The decision in Spratt was overruled on other grounds, but this point was apparently not considered by their Lordships and the Court of Appeal's ruling on this point must therefore be taken as good law.

The doctrine of transferred malice applies to assault, so that an intention to assault one victim can be transferred to another victim who is actually frightened or struck.

R v Pembliton (1874) LR 2 CCR 119, CCR A man D was ejected from a pub for misbehaviour, and became involved in a fight. He picked up a stone and threw it at the group of men he had been fighting, but missed them and broke the pub window behind them. The jury at Quarter Sessions convicted him of malicious damage, but the Recorder postponed sentence and stated a case for the opinion of the Court for Crown Cases Reserved. D's conviction was quashed: his "malice" in intending to strike another person could not be transferred to an intention to break the window. (Obiter, he could have been convicted had it been proved that he was reckless, having foreseen the risk of damage to the window.) R v Latimer (1886) LR 17 QBD 359, CCR A soldier D became involved in an argument with another man C in a pub. He took off his belt and swung it at C, but missed and wounded the landlady V. His conviction for unlawfully wounding V was upheld by the Court for Crown Cases Reserved; the intention to strike C was transferred to V under the doctrine of transferred malice.

ACTUAL BODILY HARM

The most common of the several aggravated forms of assault is assault occasioning actual bodily harm, defined in s.47 of the Offences Against the Person Act 1861, triable either way and carrying a sentence of up to five years' imprisonment.

R v Miller [1954] 2 All ER 529, Lynskey J D was charged with assault causing actual bodily harm to his wife. The judge quoted with approval the words of Archbold that actual bodily harm "includes any hurt or injury calculated to interfere with the health or comfort of the victim", and said that included mental harm as well as physical injury. V was in a hysterical and nervous condition after being thrown down three times by D, and that was enough to allow the case to go to the jury. R v Roberts (1971) 56 Cr App R 95, CA A young woman V was travelling with D in his car. During the journey he grabbed at her and ordered her to undress; she opened the car door and jumped out while it was moving at about 20 mph, suffering concussion and grazing. D was convicted of assault occasioning actual bodily harm, and his conviction was upheld by the Court of Appeal. R v Chan-Fook [1994] 2 All ER 552, CA A shopkeeper D punched his victim V, suspecting him of theft, and locked him in a room; V thereupon became hysterical. At D's trial for assault causing actual bodily harm, the judge said a hysterical or nervous condition was sufficient. Allowing D's appeal, the Court of Appeal said actual bodily harm is capable of including psychiatric injury (if confirmed by competent medical evidence) but does not include mere emotions such as fear or distress or panic. The word "actual", said Hobhouse LJ, means only that the injury should not be so trivial as to be insignificant. R v Ireland [1997] 4 All ER 225, HL A man D, on legal advice, pled guilty to assault causing actual bodily harm and was imprisoned for three years after making a large number of unwanted telephone calls to three women; when they answered the telephone there was nothing but silence. There was psychiatric evidence that as a result of the calls the victims had suffered palpitations, difficulty in breathing, cold sweats, anxiety, inability to sleep, dizziness and stress, and the judge said this was enough for actual bodily harm. The House of Lords affirmed D's conviction and approved the decision in Chan Fook as to the meaning of "actual bodily harm". R v Burrows [1998] 2 Cr App R (S) 407, CA A stepmother D hit a 10-year-old boy with a slipper on his head and bottom for alleged misbehaviour, leaving a number of bruises. She was convicted of assault occasioning actual bodily harm, but the Court of Appeal recognised her sense of inadequacy as a parent, and reduced her sentence to twelve months' imprisonment. T v DPP [2003] Crim LR 622, Kay J During a scuffle, the victim V was kicked by the defendant T as V lay on the ground, and momentarily lost consciousness. Dismissing T's appeal by way of case stated against his conviction for assault occasioning actual bodily harm, the judge said momentary unconsciousness can certainly amount to actual bodily harm: even if it was transient, it was not trifling. DPP v Smith [2006] EWHC 94 (Admin) A man D assaulted his former partner and cut off her pony-tail with a pair of scissors. He was charged with assault occasioning actual bodily harm, but the magistrates decided there was no case to answer. Allowing the prosecutor's appeal by way of case stated, and remitting the case for further hearing, the High Court said actual bodily harm is not limited to injury and extends to hurt and damage so long as it is not trivial. Moreover, it is not limited to the skin, flesh and bones but applies to all parts of the body including the hair. Obiter, if paint or some other unpleasant substance were put on the hair, that would also be capable of amounting to actual bodily harm.

In formal "charging standards" having no statutory force but agreed between the Crown Prosecution Service and the police in 1994, it is suggested that although any injury can in theory amount to actual bodily harm, the appropriate charge where the injuries are no more than grazes, scratches, abrasions, minor bruising, swellings, reddening of the skin, superficial cuts or a black eye will be common assault under s.39 of the Criminal Justice Act 1988. In contrast, injuries that should normally be prosecuted under s.47 of the Offences Against the Person Act 1861 include loss or breaking of a tooth or teeth, temporary loss of sensory functions (which may include loss of consciousness), extensive or multiple bruising, a displaced broken nose, minor fractures, minor (but not merely superficial) cuts of a sort requiring medical treatment, and psychiatric injury which is more than just fear, distress or panic.

The actual bodily harm need not be caused by a face-to-face assault: it may be only an indirect result of the defendant's actions, so long as the chain of causation is not broken.

R v Roberts (1971) 56 Cr App R 95, CA A young woman V was travelling with D in his car. During the journey he grabbed at her and ordered her to undress; she opened the car door and jumped out while it was moving at about 20 mph, suffering concussion and grazing. D was convicted of assault occasioning actual bodily harm, and his conviction was upheld by the Court of Appeal. D certainly had the mens rea of assault, and V's response was a reasonably foreseeable consequence of his conduct for which he was therefore responsible. Only where V does something so daft that no reasonable person could possibly have anticipated it can it be said that it was not occasioned by the assault. DPP v K (a minor) [1990] 1 All ER 331, DC A 15-year-old schoolboy D left a chemistry lesson to go to the toilet, and secretly took with him a small amount of concentrated sulphuric acid to see what it would do. After a few minutes he heard someone coming, so he emptied the acid into the upturned nozzle of a hand-drier (meaning to come back at break to clear it away), put the empty tube in his pocket, and returned to the lesson. Before break, another boy came to the toilet, used the hand-drier, and suffered severe facial burns. D was acquitted of an assault causing actual bodily harm, but the High Court remitted the case with a direction to convict even though no assault in the ordinary sense had taken place. A defendant who pours a dangerous substance into a machine, said Parker LJ, just as truly assaults the next user of the machine as if he had himself switched the machine on. DPP v Santana-Bermudez [2004] Crim LR 471, DC A policewoman V carrying out a search asked D to turn out his pockets, which he did, revealing (among other things) some empty syringes without needles. V then asked D whether he had any further needles or sharps in his pockets, and he said no. V put a hand into D's pocket, where a hypodermic needle pierced a finger; D shrugged his shoulders and smiled. The High Court allowed the prosecutor's appeal against a ruling in the Crown Court that D had no case to answer. Where a person by acts and/or words creates a dangerous situation and thereby exposes another to a risk of injury, with the intention or recklessness appropriate to an assault, he can be convicted under s.47 if the foreseeable injury actually occurs.

The mens rea of this offence is no more than that of common assault. If the defendant intends to commit assault or battery, or is reckless as to that possibility, and harm results from his actions, it is no defence that he neither intended nor foresaw harm.

R v Roberts (1971) 56 Cr App R 95, CA A young woman V was travelling with D in his car. During the journey he grabbed at her and ordered her to undress; she opened the car door and jumped out while it was moving at about 20 mph, suffering concussion and grazing. D was convicted of assault occasioning actual bodily harm, and his conviction was upheld by the Court of Appeal. D certainly had the mens rea of assault, and that was enough. R v Savage, R v Parmenter [1991] 4 All ER 698, HL D1 became involved in an argument in a pub, and threw a pint of beer over V1's head; the glass slipped from her hand and caused cuts to V1's wrist. The Court of Appeal allowed her appeal against a conviction for unlawful wounding and substituted assault causing actual bodily harm; D1 appealed to the House of Lords. D2 handled his baby son V2 excessively roughly and caused injuries to the bones of V2's arms and legs. The Court of Appeal quashed his conviction for inflicting grievous bodily harm, and the Crown appealed to the House of Lords. The House said the mens rea of assault causing actual bodily harm is no more nor less than the mens rea of common assault. It is not necessary to show that D intended bodily harm or was reckless as to that result; if he intended or was reckless as to the assault, and the actual bodily harm was a reasonably foreseeable result (whether or not it was or should have been foreseen by D himself), that is sufficient. D1's appeal was therefore dismissed, and the Crown's appeal against D2 was allowed to the extent that a conviction under s.47 was substituted for the original conviction.

However, this is a subjective test based on what the defendant actually foresaw: what he should have foreseen is irrelevant.

R v Cunningham [1957] 2 All ER 412, CCA D broke into a gas meter in his cellar (intending to steal the money it contained) and left the broken pipe so that gas percolated through to the house next door and affected Mrs W. Quashing his conviction, the Court of Criminal Appeal said recklessness required that D foresaw the risk of injury but went ahead anyway. R v Spratt [1991] 2 All ER 210, CA D was firing an air pistol from the window of his flat, aiming at a target in the yard below. One of the shots hit a 7-year-old girl playing in the yard, whom D had not known was there. His conviction for assault causing actual bodily harm was quashed by the Court of Appeal; recklessness in the assault crimes is clearly subjective recklessness, in which D foresaw the risk but went ahead regardless.

GRIEVOUS BODILY HARM

According to the House of Lords in DPP v Smith [1960] 3 All ER 161, "grievous bodily harm" means no more and no less than "really serious injury". There is no more rigorous distinction than this between actual and grievous bodily harm, but the 1994 charging standards (which are only guidelines, and not legally binding) give as examples of grievous bodily harm any injury resulting in permanent disability, permanent loss of any sensory function, or significant permanent visible disfigurement; broken or displaced limbs or bones (including fractured skull, compound fractures, broken cheek bone, jaw, ribs &c); injuries causing substantial loss of blood, usually requiring a transfusion; and injuries (physical or psychiatric) resulting in lengthy treatment or incapacity.

R v Medland (1990) 12 Cr App R (S) 556, CA D went to the home of a man who (allegedly) owed him £25. He poured petrol over the front door and over the victim, and set light to it when the victim did not pay up. The victim was severely scarred and D was convicted of causing grievous bodily harm with intent. R v Ismail (1991) 13 Cr App R (S) 395, CA When D's girl-friend threatened to leave him because of his persistent violence to her, D threw nitric acid into her face, causing disfigurement and blinding. D was convicted of causing grievous bodily harm with intent, and the Court of Appeal upheld a sentence of 14 years' imprisonment. R v Burstow [1997] 4 All ER 225, HL A petty officer D had a close relationship with a woman V; after a time she broke it off, but he refused to accept this and began to follow her, telephone her, write menacing letters to her, and call at her home. V suffered severe clinical depression as a result, and D was charged with inflicting grievous bodily harm. Affirming his conviction, Lord Steyn said that as a matter of current usage, the contextual interpretation of "inflict" can embrace the idea of inflicting psychiatric rather than physical injury; the offence can accordingly be committed even where no physical violence is applied directly or indirectly to the body of the victim. R v Brown & Stratton [1998] Crim LR 485, CA DD attacked D2's father, who had undergone gender reassignment, causing her a broken nose, three broken teeth and a cut over one eye. Affirming DD's conviction for causing grievous bodily harm, the Court of Appeal said the jury were entitled to find this harm was "really serious". R v Dica [2004] 3 All ER 593, CA A man D knew he was infected with the HIV virus; he persuaded two women VV to consent to unprotected sex (each on more than one occasion) without telling them of his condition. VV were subsequently diagnosed HIV positive and D was convicted of causing them grievous bodily harm contrary to s.20. The Court of Appeal quashed his conviction because of the judge's inadequate direction on the issue of consent, and ordered a new trial, but confirmed that a conviction for grievous bodily harm is possible in circumstances such as these. The old case of Clarence (1888) 22 QBD 23, having been widely criticised, is no longer to be regarded as good law. R v Bollom (2003) Times 15/12/03, CA A man D was convicted of causing grievous bodily harm with intent to a 17-month child, the trial judge having told the jury that they might take the child's age into account in deciding whether bruises and abrasions all over the child's body. Dismissing D's appeal on this point (but allowing it on other grounds and substituting a conviction for assault occasioning actual bodily harm), Fulford J said the seriousness of injuries required that they be viewed in their context. Grievous bodily harm need not be life-threatening or permanent - it need not even require treatment - and the jury had quite properly applied the standards of society as a whole in assessing the seriousness of the harm done to this young child. R v D [2006] EWCA 1139 After many months of abuse (mainly psychological) from her husband D, a woman committed suicide. D was charged with manslaughter, but the Court of Appeal (agreeing with the trial judge) said psychological injury falling short of an identified or recognised psychiatric illness cannot amount to grievous bodily harm.

Like actual bodily harm, grievous bodily harm may be "inflicted" or caused - the two words mean the same - either directly or indirectly.

R v Martin (1881) LR 8 QBD 54, CCR Shortly before the end of a performance in a crowded theatre, D (for a joke) switched off the lights on the main staircase and put an iron bar across the doorway. As a result, several people were injured and D was charged with inflicting grievous bodily harm. Upholding his conviction, the Court for Crown Cases Reserved said an assault as such was not essential to the offence; some unlawful act and the foresight of harm would be enough. "Inflict" means no more than "cause" and does not require a face-to-face assault. R v Halliday (1889) 61 LT 701, CCR D frightened his wife V to such an extent that she jumped from a bedroom window to escape his threats and injured herself quite seriously: the Court for Crown Cases Reserved upheld D's conviction for the s.20 offence. As in Roberts above, V's action was a foreseeable result of D's unlawful act, and he could therefore be regarded as having caused her injuries. R v Marjoram [2000] Crim LR 372, CA A youth D appealed against his conviction for inflicting grievous bodily harm by forcing his way into a young woman's third floor room in a hostel, causing her to jump out of the window in fear. The judge directed the jury that they might convict if they believed such an outcome was foreseeable by a reasonable person in D's position (whether or not D had actually foreseen it), and the Court of Appeal approved this direction.

Mens rea

There are two versions of grievous bodily harm. The basic offence under s.20 of the Offences Against the Person Act 1861 requires an intention to cause some bodily harm (not necessarily serious), or subjective foresight that some bodily harm may be caused; the fact that a reasonable person might have foreseen such a risk is not enough.

R v Mowatt [1967] 3 All ER 47, CA D attacked V by sitting astride him, raining a series of blows on his face, and lifting his head up and throwing it down again. The Court of Appeal upheld D's conviction for inflicting grievous bodily harm, saying the offence required D to have foreseen the risk of some physical harm, which was clearly the case. R v Grimshaw [1984] Crim LR 108, CA Following an offensive remark in a pub, a woman D struck a man V, who suffered eye injuries from the glass he had been holding. She was charged with s.20 GBH, and the trial judge directed the jury to consider whether she "should have foreseen" the risk of harm. Her appeal succeeded: the proper question was whether D did foresee the risk of some harm, albeit perhaps only minor harm. R v Savage, R v Parmenter [1991] 4 All ER 698, HL D1 became involved in an argument in a pub, and threw a pint of beer over V1's head; the glass slipped from her hand and caused cuts to V1's wrist. The Court of Appeal allowed her appeal against a conviction for unlawful wounding and substituted assault causing actual bodily harm; D1 appealed to the House of Lords. D2 handled his baby son V2 excessively roughly and caused injuries to the bones of V2's arms and legs. The Court of Appeal quashed his conviction for inflicting grievous bodily harm, and the Crown appealed to the House of Lords. In the House of Lords, Lord Ackner said that to establish an offence under s.20 the prosecution must prove either that D intended or that he actually foresaw that his act would cause harm. It is unnecessary that he should have intended or foreseen that his unlawful act might cause serious physical injury; it is enough that he should have foreseen that some physical harm to some person, albeit of a minor character, might result. [This is unfortunate phrasing: Lord Ackner clearly meant "did foresee", but there is a danger that judges taking his comments in isolation may repeat the error made by the trial judge in Grimshaw.]

The more serious offence under s.18 is causing grievous bodily harm with intent to do grievous bodily harm or to resist arrest, and carries a possible life sentence. This offence therefore requires a specific intent to cause grievous bodily harm or to resist arrest, and recklessness (foresight) is not sufficient.

R v Belfon [1976] 3 All ER 46, CA D pushed a girl to the ground, and he and an accomplice attacked those who came to help her. D slashed one man with a razor, causing severe wounds to his head and chest, and was charged with wounding with intent. The Court of Appeal quashed his conviction under s.18 and substituted a conviction for s.20 unlawful wounding; he had certainly foreseen the risk of such consequences, but it had not been proved that he had the specific intent required for the more serious offence. [Note: this charge was based on wounding (below) rather than grievous bodily harm, but the principle is the same.] R v Morrison (1989) 89 Cr App R 17, CA Police entered a house to arrest its occupants for burglary, and when D tried to escape he was seized by a police officer V. D dived through the window, causing V's face to be severely cut by the broken glass. The Court of Appeal quashed D's conviction under s.18; an intention to resist arrest, they said, must be accompanied by intention or at least foresight as to the risk of bodily harm. R v Piff (1994) 15 Cr App R (S) 737, CA In an off-the-ball argument, a footballer D head-butted an opponent in the face, shattering his cheekbone and eye socket. He pled guilty to causing grievous bodily harm with intent, and was sent to prison for six months.

WOUNDING

The essence of wounding is that there should be a break in "the whole skin"; a simple fracture that leaves the skin intact is not sufficient, though it may constitute grievous bodily harm.

Moriarty v Brooks (1834) 172 ER 1419, Exch Ch In a civil action brought by a pub customer against a landlord who had struck him, causing a cut under his eye, Lord Lyndhurst CB said the definition of a wound in criminal cases is an injury to the person by which the skin is broken. JJC (a minor) v Eisenhower [1983] 3 All ER 230, DC V was shot with an airgun pellet just above the eye, suffering bruising and internal bleeding into the eye. The High Court quashed D's conviction for unlawful wounding, since there was no wound breaking the skin.

A wound may be inflicted directly or indirectly.

R v Dume (1986) Times 16/10/86, CA A police officer P went to D's house to question him. Standing in his hallway, D released his dog and told it to "kill that man". The dog went up to P, knocked him over, and bit him on the leg; D was charged with malicious wounding. The prosecution said D deliberately caused the dog to bite P, but the defence argued that the dog's act was the result of its natural exuberance. Quashing D's conviction, the Court of Appeal said a charge of malicious wounding might in principle be appropriate in such a case, but the trial judge should have directed the jury much more carefully as to the need to find some act of the defendant, committed with the necessary mens rea, that had been the proximate cause of V's injury.

As with grievous bodily harm, there are two versions of this offence. The basic offence under s.20 requires intention to cause some harm (not necessarily serious), or foresight that some harm might be caused. The more serious s.18 offence requires a specific intent to cause really serious injury or to escape from lawful arrest.

Flack v Hunt (1979) 70 Cr App R 51, DC A gamekeeper D suspected M was poaching in his woods. Thinking M was some way away, D fired into some nearby bushes to make a noise to frighten M off. In fact, M was hiding in those bushes and was hit by the shot, and D was charged with malicious wounding. His conviction was quashed by the High Court because he had not foreseen the risk of harm; on the contrary, he had considered the matter and decided there was no risk.

[Contrast Chief Constable of Avon v Shimmen (1986) 84 Cr App R 7, in which a young man D, wanting to impress his friends with his skill at karate, tried to demonstrate by doing a kick towards a plate-glass shop window; He misjudged the kick, broke the window, and was charged with criminal damage. The justices acquitted on the basis that D was not reckless - he had recognised the risk but had decided after due consideration that he could prevent its occurring - but the High Court disagreed. The defendant had recognised the existence of the risk, they said, and had gone ahead, taking manifestly inadequate measures against it.]

R v Farrell [1989] Crim LR 376, CA D wounded V with a crossbow but said it was an accident. Quashing his conviction, the Court of Appeal said D was entitled to have this defence put to the jury; objective recklessness - the fact that a reasonable person would have foreseen the risk - is not enough to support a s.20 conviction. Even a clear intention to frighten V (which is sufficient for common assault) would not be enough for unlawful wounding unless D had given some thought to the possible consequences. DPP v A [2001] Crim LR 140, DC A 13-year-old boy accidentally shot his friend in the eye while playing with an air pistol, and was charged with s.20 wounding. The magistrates dismissed the charge, relying on a statement in Stone's Justices' Manual that the prosecution were required to prove that D foresaw that his conduct would lead to some injury. Allowing an appeal by the Crown, the High Court said the proper question is whether D had foreseen that some physical harm might occur, however slight. R v Belfon [1976] 3 All ER 46, CA D pushed a girl to the ground, and he and an accomplice attacked those who came to help her. D slashed one man with a razor, causing severe wounds to his head and chest, and was charged with wounding with intent. The Court of Appeal quashed his conviction under s.18 and substituted s.20 wounding; he had certainly foreseen the risk of such consequences, but it had not been proved that he had the specific intent required for the more serious offence. R v Bryson [1985] Crim LR 669, CA D was convicted of wounding with intent to cause grievous bodily harm after driving his car directly at three men VV. The Recorder had directed the jury that they might convict if they were satisfied that D foresaw serious harm as probable, and D appealed. Dismissing his appeal, the Court said it is for the jury, not the judge, to decide whether foresight is sufficient evidence of intention, but on the facts of the instant case no reasonable jury could have come to any other conclusion. R v Stubbs (1989) 88 Cr App R 53, CA In a drunken state, D stabbed V during a fight outside a pub; he was charged under s.18, but the prosecution and the Recorder accepted a plea to s.20. Allowing D's appeal against sentence, the Court of Appeal criticised that decision: although the absence of mens rea due to drunkenness would be a defence to a crime of specific intent, that drunkenness would have to be very extreme to justify reducing a s.18 offence to s.20. R v Ramsell [1999] EWCA Crim 1506, unreported A woman D was arrested by a police officer who feared a breach of the peace; she caused her dog to bite the officer, and was convicted (under s.18) of wounding with intent to escape lawful arrest. The Court of Appeal affirmed her conviction and sentence (9 months' imprisonment, suspended for 12 months), but Buxton LJ said it is anomalous that there should be this part of s.18 leading to a conviction for an offence that at least technically carries a penalty of life imprisonment (and an automatic life sentence if it is a second serious offence), particularly where the arrest is not even for a crime.

MISCELLANEOUS OFFENCES

Racially aggravated assaults

Section 29 of the Crime and Disorder Act 1998 creates the offence of racially aggravated assault. A person is guilty of an offence under this section if he commits an offence under s.20 (wounding or grievous bodily harm) or s.47 (actual bodily harm) of the 1861 Act, or common assault, which is racially aggravated. These are either-way offences; the Crown Court can impose up to seven years' imprisonment for racially aggravated assaults causing bodily harm, and two years' for racially aggravated common assault.

Under s.28, an offence is taken to be racially aggravated if the offender demonstrates hostility towards the victim based on the victim's actual or presumed membership of or association with a particular racial group, or is motivated wholly or partly by hostility towards members of a racial group in general.

DPP v Pal [2000] Crim LR 756, DC An Asian youth asked to leave a community centre assaulted the Asian caretaker and called him a "white man's **** licker" and a "brown Englishman". The magistrates dismissed a charge of racially motivated assault, the motivation having been anger at the caretaker's behaviour rather than his race, and the Divisional Court affirmed their decision.

Sexual assault

Sexual assault (formerly indecent assault) is an offence under s.3 of the Sexual Offences Act 2003, and is committed by a person who intentionally touches another person if the touching is sexual, the other does not consent to the touching, and the defendant does not reasonably believe that the other consents. Under s.78, touching is sexual if a reasonable person would consider that it is sexual because of its nature and/or its circumstances and/or its purpose.

R v George [1956] Crim LR 52, Streatfeild J A man D was charged with attempted theft and indecent assault after trying to remove two young women's shoes. He admitted to a "***********", but the judge ruled that this could not make the assault indecent. D pled guilty to common assault, for which he was sentenced to twelve months' imprisonment in view of several previous offences of a similar nature, and the prosecution dropped the other charges. R v Court [1988] 2 All ER 221, HL D was a 26-year-old shop assistant, and a 12-year-old girl came into the shop whom he knew slightly; he pulled the girl over his knee and spanked her about a dozen times on the seat of her shorts. When questioned by the police he admitted to a "buttock fetish", and he was charged with indecent assault. The House of Lords upheld his conviction; Lord Ackner said the prosecution had proved (as they had to) that D intentionally assaulted V, that the assault in the circumstances was capable of being considered indecent by right-minded people, and that D intended such an (indecent) assault. If the spanking administered by Court had been (for example) a proper punishment, or consensual horseplay between uncle and niece, it might not have been indecent, but the sexual motive made it so. R v Mansell (1999) unreported A man D who licked a young woman's face after she refused him a kiss at a party was convicted of indecent assault and placed on probation for two years. He was also ordered to pay £500 compensation and placed on the sex offenders' register. R v Tabassum [2000] 2 Cr App R 328, CA A man D told several women that he was conducting a breast cancer survey; believing him to be medically qualified they allowed him to feel their breasts. D's conviction for indecent assault was affirmed on appeal: although there was no evidence of a sexual motive, D's touching of the women's breasts was indecent unless they had consented to that touching, and they had not consented to any touching except for medical purposes. R v Price [2004] 1 Cr App R 12 (145), CA A man D was charged with indecently assaulting a woman showing him around a flat: he had knelt in front of her, stroked her lower legs (over her trousers) and asked her to take off her boots. Affirming D's conviction, the Court of Appeal said the jury was entitled to decide that this behaviour amounted to an indecent assault. [D was given a three-year community rehabilitation order with a condition that he take part in a sex offenders' programme.] R v H [2005] unreported, CA A young man approached a woman in the street one evening and asked her whether she "fancied a shag"; when she ignored him he took hold of her tracksuit bottoms close to the side pocket and pulled her towards him, but she broke free and ran off. The man was convicted of sexual assault and his appeal was dismissed: Lord Woolf CJ said touching a person's clothes is equivalent to touching them for the purposes of this offence, and the jury were entitled to find that the circumstances made the touching sexual.

Poisoning

Sections 23 and 24 of the Offences Against the Person Act 1861 create offences of unlawfully and maliciously administering or causing to be administered to or taken by any other person any poison or other noxious thing ... so as thereby to endanger the life of that person or inflict grievous bodily harm (s.23), or with the intent to injure, aggrieve or annoy such person (s.24).

R v Cunningham [1957] 2 All ER 412, CCA D broke into a gas meter in his cellar (intending to steal the money it contained) and left the broken pipe so that gas percolated through to the house next door and affected Mrs W. The Court of Criminal Appeal quashed his conviction under s.23; the judge had misdirected the jury as to the meaning of "maliciously". It was a legal term of art equivalent to recklessness, and required that D foresaw the risk of injury but went ahead anyway. R v Cato [1976] 1 All ER 260, CA Two heroin users D and V injected one another several times during the course of one night, and V died in the morning. D was convicted of manslaughter, and the Court of Appeal upheld his conviction even though his acts were not "directed against" anyone, his friend having freely consented. The unlawful and dangerous act, said Lord Widgery CJ, was administering a noxious substance contrary to s.23. R v Hill (1986) 83 Cr App R 386, HL D gave a drug to two boys, intending to render them susceptible to his homosexual advances. The Court of Appeal quashed his conviction under s.24, but the House of Lords restored it. The trial judge's direction had quite clearly distinguished between an intention to injure (in relation to the whole of D's plan) and a benevolent intention such as keeping a child awake to enjoy late night fireworks: there was overwhelming evidence that D's intention was the former, and the jury had quite properly convicted. R v Gillard (1988) 87 Cr App R 189, CA The Court of Appeal affirmed the convictions of three men DD for conspiracy to administer a noxious substance by spraying CS gas into the face of their chosen victim (a doorman at a wine bar). R v Pollard (1991) unreported A 23-year-old woman D, for a joke, put a small amount of cannabis (enough for ten cigarettes) into a chocolate cake being baked by her aunt; some family members who ate the cake hallucinated or became ill. D was charged with and convicted of administering a noxious substance with intent to injure, aggrieve or annoy under s.24.

Threatening to kill

A person who without lawful excuse makes to another person a threat, intending it to be taken seriously, that he will kill that other or some third person, is guilty of an offence under s.16 of the Offences Against the Person Act 1861 and liable to imprisonment for up to ten years.

R v Solanke[1969] 3 All ER 1383, CA Following a long matrimonial dispute and protracted court proceedings, D wrote to the court's probation officer detailing his complaints against his wife W and saying "I do not wish to take her life but ... I hope my children will be looked after". After considering the letter in full the jury convicted, and the Court of Appeal said implied threats of this kind were quite capable of providing the actus reus of the offence. R v Williams (1986) 84 Cr App R 299, CA A few weeks after his release from prison for repeated harassment and violence towards an ex-girlfriend V, D met her by chance in the street and shouted "I'm still going to ******* kill you!". The judge told the jury to take the history of the relationship and the earlier assaults into account when deciding whether D had meant this threat to be taken seriously, and the Court of Appeal (affirming the conviction) said he had been right to do so. R v Tait [1989] 3 All ER 682, CA D and other youths threatened a pregnant woman that if she informed on them they would come back and kill her child once it was born. Allowing D's appeal, the court held that an unborn foetus was not a person, so that the offence of threatening to kill another person could not have been committed.

False imprisonment

False imprisonment is the restriction of P's freedom of movement without lawful excuse, and like assault is a tort actionable per se as well as a crime. The restriction need not be in a prison - it could be in a field, or in P's house - but it must be complete. In Bird v Jones (1845) 115 ER 668 the Court of Queen's Bench said there was no imprisonment in refusing to allow P to pass in one direction when there was a reasonable alternative open to him.

Herd v Weardale Steel [1915] AC 67, HL Following a dispute in the middle of his shift, a miner demanded to be taken up to the surface. The mine owners refused to operate the cage for him, and he claimed false imprisonment. The House said his claim must fail: he had agreed by his contract of employment that he would not leave the workings until the end of his shift, and had thus consented to the restraint on his liberty. R v Rahman (1985) 81 Cr App R 349, CA A father D seized his 15-year-old daughter and tried to take her back to Bangladesh against her wishes; she struggled and police intervened. D pled guilty to false imprisonment when the judge dismissed his defence that a parent could not falsely imprison his own child, and his appeal was dismissed. Lord Lane CJ said false imprisonment is the unlawful and intentional or reckless restraint of a victim's freedom of movement from a particular place; in other words, an unlawful detention which stops the victim moving away as he would wish to move. Murray v Ministry of Defence [1988] 2 All ER 521, HL Six soldiers entered a house in Northern Ireland and one stayed with the plaintiff in one room while the others searched the house. P claimed false imprisonment. The House of Lords dismissed her claim on the basis that she must have known it was a lawful arrest even though no express words had been spoken, but declared that it is not essential to the tort of false imprisonment that the victim should have been aware that his liberty was denied. Where the victim was unaware, however, only nominal damages will generally be awarded. R v James (1997) Times 2/10/97, CA D pled guilty to assault and was convicted of false imprisonment where the victim's restraint arose solely from her fear of further assault if she tried to escape. Allowing D's appeal against the latter conviction, Potter LJ said the mens rea of false imprisonment is an intention to do the restraining act coupled with an intention to restrain the victim or subjective recklessness as to such restraint. Roberts v Chief Constable of Cheshire [1999] 2 All ER 326, CA A man P suspected of conspiracy to burgle was arrested at 10.50pm and taken to the police station, where he was detained until eventually being released without charge at 6.55pm the next day. He subsequently sued for damages for false imprisonment, arguing that the lack of any review by a senior officer at 5.25am (i.e. six hours after the custody officer first authorised his detention, as required by s.40 of thenPolice and Criminal Evidence Act 1984) rendered his further detention unlawful under s.34 until the first review took place at 7.45am. The judge agreed, saying the relevant provisions of the Act were mandatory, and awarded P £500 in damages. D's appeal was dismissed even though P had been asleep at the relevant time, but Clarke LJ suggested obiter that imprisonment of which the victim is unaware should attract only nominal damages.

DEFENCES

The general defences of consent and lawful force are particularly important in cases of assault. These defences and others are discussed on the page dealing with general defences.

CRITICAL EVALUATION

In an A Level examination, candidates may be asked to comment on the law governing non-fatal assaults and the reforms that might be desirable. This clearly gives room for the expression of personal views - lawyers and others disagree as to the problems and the solutions - but the following are among the points that might reasonably be made.

  • The 1861 Act is nearly 150 years old, and some of its language (e.g. "maliciously", "grievous") is seriously out of date. "Bodily harm" includes mental harm, and even lawyers and judges say "assault" when they mean battery.
  • The maximum sentence for s.20 grievous bodily harm (five years' imprisonment) is the same as that for s.47 actual bodily harm, even though the former is by definition more serious. This is illogical: either the sentence for GBH should be increased, or that for ABH should be reduced, or the two offences should be merged.
  • A number of cases (e.g. Burstow, Dica) show how the judges have been able to adapt the non-fatal assault offences to meet modern requirements. Arguably, however, cases such as Brown show how the judges have sometimes extended the offences inappropriately.
  • The boundaries between battery and actual bodily harm (more than trifling and transient), and between actual and grievous bodily harm (really serious injury), are very vague even with the assistance of the CPS charging standards. But is it possible to do any better? The Law Commission thought not, and suggested only "injury" and "serious injury".
  • Wounding is an unnecessary and very wide offence - any wound (except the most trivial) amounts to either actual bodily harm or grievous bodily harm and could (should?) be charged as such. Moreover, the inclusion of grievous bodily harm and wounding in the same sections of the 1861 Act suggests (wrongly) that they are equivalent.
  • The mens rea for several offences does not match the actus reus. A person who does not foresee any harm (but foresees apprehension or a mere touch) can be convicted of assault occasioning actual bodily harm (Savage); a person who foresees only slight injury can be convicted of inflicting grievous bodily harm. The mens rea for s.18 GBH or wounding, which carries a possible life sentence, could be no more than an intention to escape plus foresight of some (minor) injury.
  • Following Spratt, all the assault offences require at least subjective recklessness: the fact that the defendant should have considered the risk is not enough. Some people find this quite acceptable - defendants should not be punished for mere stupidity - but others do not.
  • Consent is not recognised as a defence to any assault causing actual bodily harm or worse, subject to the recognised exceptions. Many people think "victims" should be allowed to decide for themselves what injuries they are prepared to suffer. In any case, the "recognised exceptions" are anomalous: for example, boxing is an exception but sadomasochism is not.
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cases on general defences

INCAPACITY

A child under 10 cannot be convicted of any offence, but can (in appropriate cases) be made the subject of care proceedings or other proceedings in the family courts.

Children & Young Persons Act 1933 s.50 It shall be conclusively presumed that no child under the age of ten years can be guilty of any offence.

This presumption is sometimes called doli incapax (incapable of evil). There was formerly a further presumption that children between 10 and 14 did not know the difference between right and wrong (and hence could not be convicted), but this second presumption was rebuttable by evidence to the contrary. In practice, it was usually enough to prove (i) that the act was one which any normal child would know was wrong, and (ii) that the defendant was of normal intelligence, so that only a few cases presented any real problems. However, the requirement was that the child should know that his acts were "seriously wrong" rather than just "naughty" or technically unlawful. This second presumption was abolished by Act of Parliament in 1998.

Crime & Disorder Act 1998 s.34 The rebuttable presumption of criminal law that a child aged 10 or over is incapable of committing an offence is abolished. CPS v P [2007] EWHC 946 Admin Upholding a stay of proceedings against a boy now aged 13, but with a low mental age, Smith LJ suggested obiter that s.34 of the Crime & Disorder Act 1998 abolished the presumption of doli incapax, not the defence itself. R v T [2008] EWCA Crim 815 The defendant was charged with several counts of unlawful sexual activity with a child, at a time when the defendant himself was only 12 years old. He sought to argue that he did not know that his behaviour was seriously wrong, but the judge said the defence of doli incapax for children between 10 and 14 had been abolished by s.34 of the Crime and Disorder Act 1998. Dismissing the defendant's appeal, the Court of Appeal rejected the tentative view expressed by Smith LJ in CPS v P and said it was clear that Parliament had intended to abolish not just the presumption but the defence itself.

The rule now is that children over 10 are fully liable for their crimes as if they were adults.

R v Wilson [2007] All ER (D) 228 (May) The Court of Appeal affirmed the defendant's conviction for murder (as a joint participant with his father), rejecting as inadmissible his defence of duress even though (they said) there might be grounds for criticising a principle of law that did not afford a 13-year-old boy any defence to a charge of murder on the ground that he was frightened to disobey his father's instructions.

AUTOMATISM

The law makes a distinction between insanity and sane automatism, but the distinction is a fine one. Its practical importance lies in the fact that while automatism leads to a complete acquittal, a "special verdict" of not guilty by reason of insanity commonly results in commital to a psychiatric hospital.

Sane automatism arises when the body acts for itself, without control from the conscious mind. Very few cases are reported in which a defence of sane automatism has been accepted; the writers of textbooks suggest it might apply to a sudden muscular spasm or fit, a sudden temporary illness, sleepwalking, a hypnotic trance, an accident causing concussion, the effects of an anaesthetic administered for proper medical reasons, or the intervention of a non-human agency such as a swarm of angry bees.

R v Charlson [1955] 1 All ER 859, Barry J A good father D, for no apparent reason, hit his ten-year-old son on the head with a hammer and threw him into a river. At his trial for causing grievous bodily harm with intent, there was evidence that D suffered from a cerebral tumour which could have caused the sudden violence. The judge directed the jury that if the defendant did not know what he was doing, so that his mind was not in control of his limbs, they should acquit, and the jury did so. (The question of insanity was apparently not raised.) Bratty v Attorney-General [1961] 3 All ER 523, HL D was convicted of murdering an 18-year-old girl by strangling her, in spite of his defence based on automatism, and his appeals were dismissed. The House of Lords distinguished sane from insane automatism, but confirmed that both were available as defences. No act is punishable if done involuntarily, said Lord Denning, and the term "automatism" describes any act done by the muscles without the control of the mind, such as a spasm, a reflex action or convulsion, or an act done by a person not conscious of what he is doing, such as an act done while suffering from concussion or while sleepwalking. But he doubted the direction in Charlson above: any mental disorder that has once manifested itself in violence and is prone to recur should be regarded as a disease of the mind pointing towards insanity. R v T [1990] Crim LR 256, Southan J A young woman D was charged with taking part in a robbery with others. When arrested she could remember very little, but later examination showed evidence that she had been ***** a few days earlier. A psychiatrist diagnosed post-traumatic stress disorder, and suggested she had not at the time of the robbery been acting with her conscious mind. The judge said there was a question of sane automatism to go to the jury: the actual verdict is not reported. R v Antoniuk (1995) unreported A woman who stabbed her lover in a "robot-like" trance after he had ***** her was acquitted of unlawful wounding, apparently on the basis of automatism. R v Padmore (1999) unreported A diabetic D stabbed a housemate with a kitchen knife after entering a state of hypoglycaemic automatism. His trial for murder was abandoned after medical evidence had been given, the prosecution offering no further evidence. R v Bilton (2005) unreported A man accused of ****** a woman friend was acquitted by the jury on the basis of his explanation (supported by medical evidence) that he was prone to sleepwalking and could remember nothing between going to sleep on the sofa (the woman being then alone in the bed) and waking up next morning.

The courts will not normally accept a defence of automatism without some medical evidence to support it, and are understandably cautious even then.

Hill v Baxter [1958] 1 All ER 193, HC QBD A driver D was behind the wheel when his car collided with another; at his trial on a charge of dangerous driving he claimed he had been overcome by an unknown illness and had been unconscious. The magistrates acquitted him on the basis of automatism, but the High Court allowed the prosecutor's appeal. A claim of sudden illness or concussion must be supported by some credible evidence, they said, usually going beyond D's mere assertion, but (Lord Goddard CJ dissenting) the burden of proof thereafter is on the prosecution to show that the act was a voluntary one. Watmore v Jenkins [1962] 2 All ER 868, HC QBD A driver D suffering progressive hypoglycaemia who gradually lost consciousness over the course of a five-mile drive was charged with dangerous driving. A five-judge Divisional Court dismissed his appeal; Winn J said a state of automatism is no more than a modern catchphrase which the courts have not accepted as connoting any wider or looser concept than involuntary movement of the body or limbs. Only when the driver is not really driving at all is the defence of automatism available to him. R v Smith (Sandie) [1982] Crim LR 531, CA A woman D was charged with threatening to kill and carrying an offensive weapon. She was already on probation for manslaughter by reason of diminished responsibility, and brought evidence to show a history of psychological disturbance and violent behaviour clearly associated with her menstrual cycle. The judge said this PMT could not provide a defence of automatism, but (following conviction) made a probation order with a condition D undergo a course of drug treatment. The ruling and sentence were affirmed on appeal. Attorney-General's Reference (No.2 of 1992) [1993] 4 All ER 683, CA The driver of a heavy goods lorry had crashed into a stationary vehicle on the hard shoulder of a motorway, killing two people standing nearby, was acquitted of causing death by reckless driving after the Recorder had left sane automatism to the jury. The Court of Appeal confirmed the legal rule expressed in Watmore v Jenkins; driving without awareness is incapable of founding a defence of automatism unless there is total destruction of voluntary control on the defendant's part, and impaired or reduced control is not enough. The driver in the instant case was still steering his vehicle in a straight line, and had admitted seeing the flashing hazard lights at a distance of ¼ mile even though he had not responded to them.

Voluntary intoxication by drink or drugs (other than medicines) cannot underpin a defence of automatism even if the defendant did not know what he was doing. But a person who takes prescribed drugs (or over-the-counter medicines for proper medical reasons) may be able to rely on any resulting automatism so long as he has not been reckless in disregarding any instructions or warnings.

R v Lipman [1969] 3 All ER 410, CA D and his girlfriend V each took a quantity of LSD (a hallucinatory drug). During his "trip", D imagined he was being attacked by snakes at the centre of the earth and had to defend himself; in doing so, he actually killed V by cramming eight inches of sheet down her throat. He was charged with murder and convicted of manslaughter. Upholding the conviction, the Court of Appeal said that since no specific intent is required for manslaughter, self-induced intoxication (whether by drink or drugs) affords no defence. R v Quick [1973] 3 All ER 347, CA A psychiatric nurse D was charged with assaulting a patient. D was diabetic, and his defence was that he was suffering from hypoglycaemia at the time (that is, low blood sugar following his daily insulin injection) and did not know what he was doing. The trial judge ruled that this defence amounted to insanity, whereupon he pled guilty. He then appealed on the ground that the judge's direction was wrong in law, and the Court of Appeal quashed his conviction. D's alleged mental condition was caused not by his diabetes but by the use of insulin prescribed by his doctor; consequently, it was not due to a disease of the mind. The Court doubted whether the jury would have accepted D's story, but they should have been given a chance to consider it. But obiter, an incapacity which D could reasonably have foreseen as a result of doing or not doing something else, such as taking alcohol against medical advice after taking a prescribed drug, or failing to eat regularly after taking insulin, would not excuse him. DPP v Majewski [1976] 2 All ER 142, HL D took a mixture of drugs and alcohol and subsequently assaulted the landlord in a pub brawl. His conviction was upheld: D's intoxication was the result of his own voluntary reckless act, said the House of Lords, and the trial judge had rightly directed the jury that they were to ignore it in considering whether he had formed the necessary mens rea in a crime of basic intent. Lord Elwyn-Jones LC said that if a man of his own volition takes a substance which causes him to cast off the restraints of reason and conscience, no wrong is done to him by holding him answerable criminally for any injury he may do while in that condition. His conduct in reducing himself to that condition supplies the evidence of mens rea sufficient for crimes of basic intent. Lord Simon said one of the prime purposes of the criminal law is the protection from certain proscribed conduct, including unprovoked violence, of persons who are pursuing their lawful lives. To allow intoxication as a defence would leave the citizen legally unprotected from unprovoked violence where this was the consequence of drink or drugs having obliterated the capacity of the perpetrator to know what he was doing. R v Bailey [1983] 2 All ER 503, CA A diabetic D attacked a man V with an iron bar, and was charged with both malicious wounding and wounding with intent. His defence was automatism caused by hypoglycaemia, brought on by failing to take sufficient food after taking his prescribed insulin. The trial judge directed the jury that self-induced automatism could not be a defence, and the jury convicted on both counts. The Court of Appeal upheld the conviction on the facts of the case, but said Lawton LJ's dictum in Quick was perhaps too broad. If a defendant does appreciate the risks associated with a failure to take food after insulin, the jury may decide that his disregard of such a risk is reckless, but it depends on the circumstances. R v Hardie [1984] 3 All ER 848, CA To calm himself following the breakdown of his extra-marital relationship, D took some Valium tablets prescribed for his mistress, and (under the influence of the drug) started a fire in the bedroom. At his trial for aggravated criminal damage; the judge said his self-induced intoxication could not provide a defence, and the jury convicted. Quashing D's conviction, the Court of Appeal said that unless it was known to D (or at least to the reasonable man) that the taking of Valium would be likely to lead to aggression or to an inability to appreciate risks, then its taking would not necessarily be reckless and he would be entitled to rely on his intoxication insofar as it negated mens rea. A person who knowingly takes alcohol or drugs likely to make his behaviour aggressive or unpredictable is acting recklessly in so doing; one who takes sedatives or soporific drugs is generally not, though reckless driving is an obvious exception.

INSANITY

The question of insanity may arise in a criminal case in two ways. It may be alleged that the defendant is unfit to plead to the indictment because he cannot understand the charge and the possible pleas, cannot challenge jurors adequately, cannot instruct counsel, or cannot understand the evidence; or alternatively that he was legally insane at the time of the alleged offence. The question of fitness to plead is tried nowadays by a judge sitting alone without a jury.

R v Podola [1959] 3 All ER 418, CCA D was charged with murdering a policeman, but claimed he could not remember any of the alleged incident. Edmund Davies J said the onus was on D to establish his unfitness to plead, and a special jury empanelled for that purpose found he was not suffering from a genuine loss of memory. Dismissing D's appeal, the Court of Criminal Appeal said that in any event, the mere fact that a defendant cannot remember what had happened does not render him unfit to plead. Criminal Procedure (Insanity) Act 1964 s.4A Where it is determined by the court that the accused is under a disability ... the trial shall not proceed but it shall be determined by a jury ... whether they are satisfied that he did the act charged against him as the offence.

Until 1991 a defendant found unfit to plead, or not guilty by reason of insanity, was automatically committed to a psychiatric hospital until such time as the doctors decided he was cured. Since then, however, the judge has a number of options available to him.

Criminal Procedure (Insanity) Act 1964 s.5 as amended Where a special verdict is returned that the accused is not guilty by reason of insanity, or findings are made that the accused is under a disability and that he did the act charged against him ... the court shall either make an order that the accused be admitted to such hospital as may be specified, or (unless the offence is one for which the sentence is fixed by law) make a guardianship order, or a supervision and treatment order, or an order for his absolute discharge.

The question of the defendant's sanity at the time of the alleged offence is still a matter for the jury.

Criminal Procedure (Insanity) Act 1964 s.6 Where on a trial for murder the accused contends (a) that at the time of the alleged offence he was insane, or (b) that at the time he was suffering from diminished responsibility, the court shall allow the prosecution to adduce evidence tending to prove the other of those contentions. R v Horseferry Road Magistrate ex p K [1996] 3 All ER 719, HC QBD K was charged with affray and common assault, and elected summary trial. After he had pled not guilty, but before any evidence had been heard, the stipendiary magistrate reviewed psychiatric reports which appeared to raise an arguable defence of insanity. The magistrate thereupon committed the case for trial in the Crown Court, and K sought judicial review of this decision. The High Court dismissed his application, saying the magistrate had power to reconsider the mode of trial decision at this point, but confirmed obiter that the common law defence of insanity can still be raised in summary proceedings.

Insanity is defined for criminal law purposes by the M'Naghten tests, which are more than 150 years old.

M'Naghten's Case (1843) 8 ER 718, HL D was charged with shooting and killing the Prime Minister's private secretary, and the jury found him not guilty on the grounds the he was insane. The House of Lords summoned the judges to give their views on what state of mind constituted insanity for legal purposes. Tindal CJ, giving the judges' collective answer, said the jury should be told that every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved. To establish a defence on the grounds of insanity it must be clearly proved that at the time of committing the act, the accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or if he did know it, that he did not know he was doing what was wrong. R v Windle [1952] 2 All ER 1, CCA A weak character D was charged with murdering his wife W, who was 18 years older than D, potentially suicidal and probably insane herself, by giving her 100 aspirins. His defence was based on insanity, but Devlin J declined to leave the issue to the jury; the evidence showed clearly that D knew what he was doing, and that although he may have thought he was doing his wife a kindness he knew it was against the law. The Court of Criminal Appeal upheld D's conviction; courts of law, said Lord Goddard CJ, can only distinguish between that which is in accordance with law and that which is contrary to law. D knew what he was doing was illegal, and that was what the M'Naghten rules meant by knowing it was wrong. R v Johnson [2007] EWCA Crim 1978 A man forced his way into a neighbour's flat and stabbed him with a kitchen knife. At his trial for s.18 wounding, the defendant claimed insanity: there was undisputed evidence that he suffered from paranoid schizophrenia, but the judge withdrew this defence from the jury. Dismissing the defendant's appeal, the Court of Appeal said the legal definition of insanity is still that set out in the M'Naghten rules and applied in Windle: the jury were clearly satisfied that the defendant knew what he was doing, and he had not produced any evidence to show that he did not know that his conduct was legally and/or morally wrong.

Disease of the mind

A "disease of the mind" need not be a disease of the brain itself, but covers any physical disease which affects the operation of the mind. The law has not developed to reflect the development of medical knowledge in the 150 years since the M'Naghten rules were laid down, and defendants can be found legally insane who would not for a moment be regarded as having any mental illness in the modern sense.

R v Kemp [1956] 3 All ER 249, Devlin J A man D was charged with causing grievous bodily harm to his wife by striking her with a hammer. Uncontested medical evidence was given that D was suffering from arteriosclerosis (hardening of the arteries), which had caused congestion of blood in the brain; this in turn had brought about temporary unconsciousness as a result of which D acted irrationally and irresponsibly. The judge said that although there may be a medical difference between mental diseases which have a physical cause and those which do not, such a distinction is irrelevant for the purposes of the law. The words "disease of the mind" are not the same as "disease of the brain"; the hardening of D's arteries had been shown on the evidence to have affected his mind in such a way as to cause a defect of reasoning, and that was enough. On this direction, the jury found D guilty but insane (which was then the form of the special verdict) and he was ordered to be detained during Her Majesty's pleasure. R v Sullivan [1983] 2 All ER 673, HL A man D suffered from psychomotor epilepsy, and had a petit mal seizure about once a week. He had one such seizure while visiting an old friend V, in the course of which he kicked V about the head and body, causing significant injuries. D was charged with causing grievous bodily harm, and claimed sane automatism, but the trial judge ruled that the defence amounted to insanity. The House of Lords reluctantly upheld this ruling; epilepsy which impaired D's reason, memory and understanding came within the scope of the M'Naghten rules. R v Hennessy [1989] 2 All ER 9, CA A diabetic D was charged with taking a conveyance and driving while disqualified; his defence was that he was suffering from hyperglycaemia (excessive blood sugar) through failing to take his proper dose of insulin, and was in a state of automatism. The trial judge said this amounted to insanity, diabetes being an internal cause affecting the operation of the mind and hence "a disease of the mind" within the meaning of the M'Naghten rules, and the Court of Appeal upheld this ruling. [Note the important distinction between hyperglycaemia resulting from the diabetes itself, as in this case, and hypoglycaemia resulting from the treatment, as in Quick above.] R v Burgess [1991] 2 All ER 769, CA A sleepwalker D hit his friend V on the head with a bottle and then a video recorder, causing a cut to her scalp, and then grasped her round the throat as if to strangle her. He was charged with assault causing her actual bodily harm, and claimed sane automatism. The trial judge directed the jury in terms of insanity, and the jury returned a special verdict. The Court of Appeal upheld the direction and dismissed D's appeal. On several occasions, said Lord Lane CJ, sleep-walking had been used obiter as an example of sane automatism, but the evidence in this case was that D's sleepwalking was the result of an abnormality of the brain function, and this was a disease of the mind within the context of the M'Naghten rules.

An irresistible impulse is not enough for insanity, though it may go towards diminished responsibility if the defendant is charged with murder. Also, insanity does not extend to mere absent-mindedness, nor to the effects of medication (which may be sane automatism), nor to voluntary intoxication discussed below.

R v Kopsch (1925) 19 Cr App R 50, CCA A man D was convicted of killing his aunt by strangling her, allegedly at her request and "under the direction of his subconscious mind". He appealed on the grounds that the trial judge had not directed the jury that a person who commits an act which by mental disease he cannot control is not criminally responsible for it. Dismissing his appeal, Lord Hewart CJ said the fantastic theory of uncontrollable impulse was not and should not be any part of the law of insanity. R v Byrne [1960] 3 All ER 1, CCA D strangled a young woman V and mutilated her body. At his trial for murder he brought medical evidence to support his claim that since childhood he had suffered violent and perverted sexual desires that he found it difficult and sometimes impossible to resist. The Court of Criminal Appeal quashed D's conviction for murder and substituted manslaughter; lack of self-control due to an abnormality of mind is capable of constituting diminished responsibility, and the question should have been put to the jury. R v Lipman [1969] 3 All ER 410, CA D and his girlfriend V each took a quantity of LSD (a hallucinatory drug). During his "trip", D imagined he was being attacked by snakes at the centre of the earth and had to defend himself; in doing so, he actually killed V by cramming eight inches of sheet down her throat. He was charged with murder and convicted of manslaughter. Upholding the conviction, the Court of Appeal said that since no specific intent is required for manslaughter, self-induced intoxication (whether by drink or drugs) affords no defence. R v Clarke [1972] 1 All ER 219, CA A woman D went to a supermarket and put various items into the usual wire basket, but before going to the checkout she transferred several items into her own bag and did not pay for them. She was charged with theft but said she did not intend to steal, and brought medical evidence to show that she suffered from absent-mindedness as a result of depression. The trial judge ruled this amounted to a plea of insanity and D thereupon pled guilty, but the Court of Appeal quashed her conviction. The M'Naghten rules, said Ackner J, relate to accused persons who by reason of a disease of the mind are deprived of the power of reasoning, not to those who retain the power of reasoning but who in moments of confusion or absent-mindedness fail to use their powers to the full. R v Quick [1973] 3 All ER 347, CA A psychiatric nurse D was charged with assaulting a patient. D was diabetic, and his defence was that he was suffering from hypoglycaemia at the time (that is, low blood sugar following his daily insulin injection) and did not know what he was doing. The trial judge ruled that this defence amounted to insanity, whereupon he pled guilty. He then appealed on the ground that the judge's direction was wrong in law, and the Court of Appeal quashed his conviction. D's alleged mental condition was caused not by his diabetes but by the use of insulin prescribed by his doctor; consequently, it was not due to a disease of the mind. The Court doubted whether the jury would have accepted D's story, but they should have been given a chance to consider it.

CONSENT

The victim's consent (if given with full understanding) is sometimes a defence. It is not a defence in cases of murder or manslaughter (except insofar as it may negate the "unlawful act" required for that kind of manslaughter, but it is a defence to **** (for which the absence of consent is part of the actus reus unless the victim is under 13. Genuine informed consent often negates the dishonesty required for theft and fraud, and the owner's consent is normally a defence in cases of criminal damage except where life is endangered.

In A Level Law questions, issues of consent most often arise in the context of the non-fatal assaults. Such consent may be given explicitly, as when a woman asks to have her ears pierced, or may be implied, as with a sportsman who is presumed to consent to such "assaults" as the rules of the sport allow.

The victim's consent to common assault not causing injury, to sexual assault (unless the victim is under 16), or to false imprisonment, is fully effective so long as it is real consent. However, the victim's consent to actual or grievous bodily harm, or to wounding or poisoning, is legally ineffective unless the case falls within one of the exceptions recognised as being in the public interest. These exceptions are of two kinds.

First, a victim can effectively consent to intentional "injury" in the course of organised boxing, reasonable surgical treatment, ritual male circumcision (but not female genital mutilation), tattooing (unless the victim is under 18), ear-piercing and (probably) other forms of body-piercing, and possibly branding.

R v Wilson [1996] 2 Cr App R 241, CA A man D was convicted of assault causing actual bodily harm, and conditionally discharged, after branding his initials on his wife's buttocks with a hot knife. (The wife had fully consented, but the matter had been reported by her doctor.) Allowing D's appeal, the Court of Appeal said the prosecution had served no useful purpose. Sexual activity between husband and wife in the privacy of the matrimonial home, said Russell LJ, is not a matter for criminal investigation. There was no evidence that the branding had been any more dangerous or painful than tattooing, and the case was easily distinguishable from those such as Brown (below) in which real torture had been inflicted. Re J (Circumcision) [2000] 1 FLR 571, CA The Muslim father of a five-year-old boy J wanted him circumcised in accordance with Muslim tradition; his non-Muslim mother did not. The judge said male circumcision for religious purposes is undoubtedly lawful where both parents agree to it, but where they disagree the matter is one for the court, to be determined according to the child's welfare. In the instant case there was no intention of bringing up J as a practising Muslim, so he would make a prohibited steps order restraining the father from arranging any circumcision without the leave of the court. The Court of Appeal subsequently affirmed this decision.

Second, a victim can also give effective consent to the risk of accidental injury in properly conducted sports, dangerous exhibitions, rough and undisciplined play, and (probably) ordinary sexual and social contact, but this consent does not extend to injuries deliberately inflicted.

R v Jones (1986) 83 Cr App R 375, CA DD were playing a game in the school playground in which they threw other boys into the air and caught them. Two such boys suffered a ruptured spleen and a broken arm respectively, and DD were charged with causing grievous bodily harm. DD claimed it was all done in fun, and that the victims had consented. Quashing their convictions, the Court of Appeal said V's consent (or DD's honest belief in that consent) to rough and undisciplined play could provide a defence as long as there was no intention to cause injury - mere foresight of possible bruising (or even of greater harm) was not sufficient. R v Lloyd [1989] Crim LR 513, Bristol Crown Court A rugby player who kicked another while he was lying on the ground, breaking his cheekbone, was convicted of causing grievous bodily harm and sentenced to 18 months' imprisonment. R v Aitken (1992) 95 Cr App R 304, CMAC A group of RAF officers were celebrating the end of a course; they had had a good deal to drink and there was a lot of rough horseplay. DD poured white spirit over V's flying suit and set light to it; the fire was fiercer than expected and V was badly burned. DD were convicted of causing grievous bodily harm. Allowing their appeal, the Court-Martial Appeals Court said a victim can give effective consent to the risk of accidental injury in the course of rough undisciplined play. Moreover, if DD honestly but mistakenly believed that V had consented, that too would be a defence. R v Slingsby [1995] Crim LR 570, Judge J During sexual intercourse, a man D inserted his hand (with V's consent) into her ******. His signet ring caused her internal injuries, which neither of them realised at the time but from which from which V eventually died. D was acquitted of manslaughter on the judge's direction. V had consented to D's doing what he did, and there was no evidence that either of them had contemplated actual bodily harm resulting, so there was no unlawful act on which to found a prosecution. R v Dica [2004] 3 All ER 593, CA A man D knew he was infected with the HIV virus; he persuaded two women VV to consent to unprotected sex (each on more than one occasion) without telling them of his condition. VV were subsequently diagnosed HIV positive and D was convicted of causing them grievous bodily harm contrary to s.20. The Court of Appeal quashed his conviction and ordered a new trial: the judge had been wrong, they said, to withdraw from the jury the question whether VV had consented to the risk of infection. The decision in Brown (below) was concerned with the deliberate infliction of injury, but there are many cases in which a person might quite reasonably consent to a risk of non-intentional injury or infection arising from sexual activity. (Judge LJ gave the example of a Roman Catholic couple, one of them HIV positive, who engage in unprotected sex because of their religious objection to condoms; also of a couple desperate for a child of their own in spite of a known risk to the woman's health should she become pregnant.) R v Barnes [2004] EWCA Crim 3246 A footballer was convicted of inflicting grievous bodily harm on another player in the course of a match, and appealed against his conviction. Allowing the appeal, Lord Woolf CJ said it is not generally appropriate to bring criminal proceedings in such cases unless the defendant had gone well beyond what the victim had effectively consented to by taking part in the sport. In highly competitive sports, conduct outside the rules can still be expected to occur in the heat of the moment, and even if this justified a warning or sending-off (and even though the defendant might have been reckless) it might still not reach the threshold of criminality.

In other situations not recognised as exceptions, the victim's consent is no defence to a charge of causing actual bodily harm or worse. In particular, consent is no defence in relation to fighting, nor to sado-masochistic sexual activities.

R v Donovan [1934] 2 KB 498, CCA D paid a prostitute to allow him to cane her, and was subsequently convicted of an assault causing actual bodily harm. The Court of Criminal Appeal quashed the conviction because of a misdirection to the jury, but said obiter that so far as the criminal law is concerned, where the act charged is itself unlawful there is no need to prove the absence of consent. There are many acts harmless in themselves, said Swift J, which become unlawful only when done without the consent of the other, but as a general rule (to which there are well established exceptions) it is unlawful for one person to beat another with such violence that bodily harm is a probable consequence, and when such an act is proved the consent of the victim is immaterial. R v Leach (1969) unreported Believing himself to be a new messiah, a man V organised his own crucifixion on Hampstead Heath, and some friends nailed him to a cross with six-inch nails through his hands.Two of the friends pled guilty to unlawful wounding, and a third was acquitted on the facts, but in no case was V's consent regarded as providing a defence. R v Cato [1976] 1 All ER 260, CA Two heroin users D and V injected one another several times during the course of one night, and V died in the morning. D was convicted of manslaughter, and the Court of Appeal upheld his conviction even though his acts were not "directed against" anyone, his friend having freely consented. The unlawful and dangerous act, said Lord Widgery CJ, was administering a noxious substance, to which the victim's consent was no defence Attorney-General's Reference (No.6 of 1980) [1981] 2 All ER 1057, CA Two youths had an argument and decided to settle it by fighting in a public street, and one suffered a bleeding nose. At a trial on charges of assault, the judge told the jury that there would be no assault if both parties consented and D used no more than reasonable force; the jury acquitted. On a reference by the Attorney-General, the Court of Appeal said this direction was wrong in law. An assailant is not generally guilty of assault where the victim consents, said Lord Lane CJ, but the law makes an exception to this rule where the public interest requires it, and it is not in the public interest for people to try to cause one another bodily harm for no good reason. Minor struggles are another matter, but it is an assault if actual bodily harm is intended or caused. R v Brown [1993] 2 All ER 75, HL A group of middle-aged homosexuals DD took part in various sado-masochistic activities for their mutual pleasure. All the acts were done with the consent of the "victim", and none of the injuries was serious enough to need hospital treatment. DD were convicted of various offences including malicious wounding and assault, and the convictions were upheld by the Court of Appeal. It is not in the public interest, said Lord Lane CJ, that people should cause each other actual bodily harm for no good reason, and the satisfying of sado-masochistic libido is not a good reason. The majority in the House of Lords agreed, and said said sado-masochistic practices are not in the public interest and should not therefore be added to the list of exceptions.

Even where the law allows consent as a defence, there may be doubt as to whether the victim's consent in a particular case was genuine consent. This has been a major issue particularly in **** cases, where the absence of consent is a central element of the actus reus.

R v Williams [1922] All ER 433, CCA D was a singing teacher whose 16-year-old pupil V allowed him to have sex with her after he told her it was just a way of improving the quality of her voice. D's conviction for **** was upheld on appeal; V had not consented to sexual intercourse because she did not know that was what D intended. R v Collins [1972] 2 All ER 1105, CA In the early hours of the morning, a young man D decided he was going to have sex with a certain young woman V whom he knew slightly. He went to her home, where he stripped naked in the garden and then climbed a ladder to V's bedroom window. As he was about to climb through the window, V woke and saw his silhouette; thinking it was her regular boyfriend, she invited him into her bed and they began to have sex. After some time she realised her mistake and told D to leave, which he did. D was not charged with ****: V had consented to sex, and the mistake had been entirely hers. [A conviction for burglary with intent to **** was quashed on other grounds.] R v Olugboja [1981] 3 All ER 443, CA A man X ***** a woman V1, and then took her companion V2 into another room to **** her. X's companion D now told V1 that he too was going to have sex with her, and told her to take off her trousers. V1 did so because she was frightened, and allowed D to have sex with her without resisting. D was convicted of ****, and his conviction was upheld by the Court of Appeal. Consent is not the same as reluctant submission, and since no clear line can be drawn it is a matter for the jury; they must decide whether V consented (in the everyday sense of that word) or not. R v Linekar [1995] 3 All ER 69, CA A man D approached a prostitute V and agreed to pay her £25 for sex. They had sex, and D then made off without paying. D was charged with ****, and the trial judge told the jury that if V's consent was obtained by fraud it was not true consent. The Court of Appeal quashed D's conviction: the only types of fraud which vitiate consent in a case of **** are fraud as to the nature of the act and fraud as to the identity of the person doing it (the latter generally by pretending to be V's husband). R v Elbekkay [1995] Crim LR 163, CA It was agreed that D should stay overnight at the house where E lived with his girlfriend F. After E had fallen asleep, D went into F's bedroom and began to have sex with her; she made no protest initially, thinking it was E, but when she realised the truth she protested vigorously. D was convicted of ****, and his appeal was dismissed. It had long been established that a man commits **** if he obtains her consent to sex by impersonating her husband, and in modern society the same principle should clearly be extended to the impersonation of any permanent sexual partner. R v Richardson [1998] 2 Cr App R 200, CA A dentist D suspended by the General Dental Council continued to treat patients VV and was subsequently convicted of assault occasioning actual bodily harm. D had not told VV she had been suspended, and there was clear evidence VV would not have consented to her treating them had they known. Allowing D's appeal, Otton LJ said the same principles apply in non-sexual as in sexual assault cases. VV might well have a civil claim, but so far as the criminal law is concerned the only mistakes capable of vitiating consent (whether or not induced by fraud) are mistakes as to the nature of the act or as to the identity of the person performing it. R v Malone [1998] 2 Cr App R 447, CA D was charged with ****** a 16-year-old girl V, and put forward a defence based on consent. The evidence was that V had drunk so much wine that she was sick and had to lie down; D lay on the bed with her and began sexual intercourse, but stopped when V eventually resisted. Affirming D's conviction, the Court of Appeal said the absence of consent does not automatically require express refusal or physical resistance; the jury were entitled to convict even in the absence of such factors. R v Tabassum [2000] 2 Cr App R 328, CA A man D told several women that he was conducting a breast cancer survey; believing him to be medically qualified they allowed him to feel their breasts. D's conviction for indecent assault was affirmed on appeal: although there was no evidence of a sexual motive, D's touching of the women's breasts was indecent unless they had consented to that touching, and they had not consented to any touching except for medical purposes. Sexual Offences Act 2003 s.74 ... a person consents if he agrees by choice, and has the freedom and capacity to make that choice. Sexual Offences Act 2003 s.76 (1) If ... it is proved that the defendant did the relevant act and that any of the circumstances specified in subsection (2) existed, it is to be conclusively presumed (a) that the complainant did not consent to the relevant act, and (b) that the defendant did not believe that the complainant consented to the relevant act.
(2) The circumstances are that (a) the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act; or (b) the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant.

These statutory provisions strictly apply only to the statutory offences in the Sexual Offences Act 2003, but it seems likely that they will influence the development of the common law too.

R v Konzani [2005] EWCA Crim 706 Knowing he was HIV-positive, a man D had unprotected sex with three women without telling them of his condition; the judge applied the decision in Dica above and D was convicted of causing grievous bodily harm. Dismissing his appeal, the Court of Appeal said a victim cannot give informed consent to a risk of which she is unaware, and D's concealment of his condition was inconsistent with his claim to an honest belief in her informed consent. R v Bree [2007] EWCA Crim 804 A man was accused of ****, but claimed the woman (a 19-year-old student) had consented. She had voluntarily drunk a considerable amount of alcohol, which probably lowered her inhibitions, but not so much as to render her incapable of consenting. Her memory of the night's events was unclear, but it appeared that she had not objected to the defendant's sexual advances and had even cooperated to some extent in removing her clothing. Quashing the defendant's conviction, the Court of Appeal said that so long as the victim is not so drunk as to be unable to make a choice, drunken consent is still consent.

There is no statutory age limit on consent to assaults other than those of a sexual nature and those involving tattooing - ear-piercing is restricted only by bye-laws and/or professional codes of practice. In general, a child can consent to an "assault" on the same terms as an adult so long as s/he is mature enough to understand properly what s/he is consenting to.

Burrell v Harmer [1967] Crim LR 169, HC QBD D was charged with causing actual bodily harm to two boys of 12 and 13, by tattooing them. The Divisional Court upheld his conviction, and said that where the victim was unable to appreciate the nature of the act to which he was ostensibly consenting, that consent was not true consent at all. [There is now a statutory minimum age of 18 for effective consent to being tattooed.] R v Jones (1986) 83 Cr App R 375, CA DD (Year 11) were playing a game in the school playground in which they threw other boys (Years 9 and 10) into the air and caught them. Two such boys suffered a ruptured spleen and a broken arm respectively,and DD were charged with causing grievous bodily harm. DD claimed it was all done in fun, and that the victims had consented. Quashing their convictions, the Court of Appeal said VV's consent to rough and undisciplined play could provide a defence as long as there was no intention to cause injury. Gillick v West Norfolk & Wisbech HA [1985] 3 All ER 402, HL A mother of five daughters sought a declaration that a doctor would be acting unlawfully if he gave contraceptive treatment for any of her daughters without the mother's consent. Young people of 16 and 17 have a statutory power to consent to medical treatment, but the House of Lords decided that a child under 16 who has sufficient intelligence and maturity to understand fully the implications of the proposed treatment (a "Gillick-competent" child) can also give effective consent.

The defendant's honest but mistaken belief in the victim's consent may also be a defence unless it was the result of self-induced intoxication.

R v Jones (1986) 83 Cr App R 375, CA DD were playing a game in the school playground in which they threw other boys into the air and caught them. Two such boys suffered a ruptured spleen and a broken arm respectively, and DD were charged with causing grievous bodily harm. DD claimed it was all done in fun, and that the victims had consented. Quashing their convictions, the Court of Appeal said V's consent (or DD's honest belief in that consent) to rough and undisciplined play could provide a defence as long as there was no intention to cause injury - mere foresight of possible bruising (or even of greater harm) was not sufficient. R v Fotheringham (1989) 88 Cr App R 206, CA A man D and his wife W went out for the evening leaving a 14-year-old girl B babysitting; W told B she should sleep in the matrimonial bed. D came home drunk, got into the bed, and had sex with B without her consent, but stopped when W came in. D was charged with **** but claimed he had mistaken B for his consenting wife. Dismissing his appeal against conviction, the Court of Appeal said a mistake resulting from self-induced intoxication, as regards either the victim's consent or identity, could never be a defence to a charge of ****.

The Law Commission in their Consultation Paper LCCP 139 (1996) suggested modifying these rules, extending the range of situations in which consent may be effective and removing some of the anomalies. They suggest that D should be able to rely on V's consent to an act intended to cause injury, or likely to cause injury, but not to an act intended or likely to cause serious injury. They would keep surgical treatment as a special case, along with circumcision, tattooing and ear-piercing, but they would not give any special consideration to horseplay nor to sexual activities. They suggest adopting special rules (the details of which need further consideration) in relation to boxing and other organised sports.

No legislative action has yet been taken on these proposals (which were expressly excluded from the goverment's own 1998 consultation paper on the law of assault), and their implementation must therefore be assumed to be a long way off.

LAWFUL FORCE

Under the common law (as amended and consolidated by various statutes) a person is permitted to use reasonable force in defence of himself or of others, in the defence of property or the prevention of crime, to evict a trespasser who refuses to leave, or in the lawful arrest of a criminal or suspected criminal. There is obviously some overlap between these categories, but the defence is available in respect of any crime, including murder, as long as the force used was a reasonable response to the situation.

The old rules that imposed on a threatened person a "duty to retreat" before using force have been abandoned. In many circumstances it may be unreasonable to use force without first trying to avoid the threat by other means, but there is no rule of law to that effect.

R v Bird [1985] 2 All ER 513, CA During an argument, V slapped D and pushed her back against a wall; D lunged at V with a glass in her hand, injuring him, and was charged with unlawful wounding. The trial judge told the jury it was necessary that a person claiming to exercise a right of self-defence should demonstrate by her action that she does not want to fight. Allowing D's appeal, Lord Lane CJ said this went too far: evidence that a defendant tried to retreat would certainly be powerful evidence that he was not the aggressor nor seeking revenge, but that was all. Malnik v DPP [1989] Crim LR 451, HC QBD D was charged with carrying an offensive weapon and claimed self-defence: he was going to repossess a car and feared that the owner might attack him. The High Court upheld the magistrates' finding that this was not enough: although D had good reason to fear a violent attack, he had voluntarily accepted this risk by seeking out the man in question. Only the police and similar law enforcement officers could use this argument; D could have avoided the risk of attack by inviting the appropriate agency to repossess the car in the usual way. Beckford v R [1987] 3 All ER 425, PC (Jamaica) A police officer D, investigating a report that a man was terrorising his family, shot and killed a man who ran out of the house. Allowing D's appeal against his conviction for murder, Lord Griffiths said obiter that a man about to be attacked does not have to wait for his assailant to strike the first blow or strike the first shot; circumstances may justify a pre-emptive strike. DPP v Bayer [2004] Crim LR 663, HC QBD Environmental protesters DD entered a field and attached themselves to tractors sowing genetically modified maize seeds; they were charged with aggravated trespass and claimed they had been acting in defence of property (viz, crops in other fields). The District Judge allowed this defence, but the High Court allowed a prosecution appeal and remitted the case with a direction to convict. Brooke LJ said the defence of lawful force is restricted to cases where what is experienced or feared is a criminal act; in this case DD knew perfectly well that the farmer's actions were legal.

It is up to the jury (or the magistrates in summary trial) to decide whether the force used was reasonable in the circumstances. In so doing, however, they should take into account the fact (if it is the case) that the defendant may have had only a split second in which to react to the threat, and may not have had time to consider his response.

R v Hussey (1924) 18 Crim App R 160, CCA Hussey rented a room from Mrs West, who told him to leave. He refused, so Mrs West and two friends, armed with a hammer, a spanner, a poker and a chisel, tried to break into Hussey's room to force him out. They made a hole in the door, and Hussey fired a shotgun through the hole and wounded the two friends. He was charged with unlawful wounding, but claimed he had been using reasonable force in defence of his home. The Court of Criminal Appeal quashed his conviction, citing a passage in Archbold (since deleted) that a houseowner or his family may kill a trespasser who would forcibly dispossess them of their home. Palmer v R [1971] 1 All ER 1077, PC (Jamaica) An armed man D went with others to buy drugs; they left without paying, and in the chase that followed D shot and killed one of the pursuers. At his trial for murder he claimed self-defence, and his appeal to the Privy Council was dismissed. Obiter, Lord Morris said if there is some relatively minor attack it would not be common sense to permit some action of retaliation which was wholly out of proportion to the necessities of the situation. If an attack is serious so that it puts someone in immediate peril then immediate defensive action may be necessary. If the attack is all over and no sort of peril remains then the employment of force may be by way of revenge ... there may no longer be any link with a necessity of defence. Of all these matters the good sense of the jury will be the arbiter. If there has been an attack so that defence is reasonably necessary, he went on, it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary, that would be most potent evidence that only reasonable defensive action had been taken. R v Whyte [1987] 3 All ER 416, CA A man V punched D in the face, and D responded by stabbing V with a knife that he had already open in his hand. D's appeal against his conviction for wounding with intent was dismissed. In most cases where the issue is one of self-defence, said Lord Lane CJ, it is necessary and desirable that the jury be reminded that the defendant's state of mind, that is his view of the danger threatening him at the time of the incident, is material; the test of reasonableness is not a purely objective test. But on the facts of the case, the Court were satisfied that D's response could not possibly have been reasonable. R v Bullerton (1992) unreported D was the recipient of a series of abusive telephone calls, which BT and the police were unable to prevent. He was offered a new ex-directory telephone number, but as a self-employed worker he feared the loss of business if he accepted. He therefore acquired a "screech box", and when the caller next rang he played its sound down the telephone, causing permanent damage to the other's ear. He was charged with causing grievous bodily harm, and pled self-defence. The Court of Appeal said physical retaliation against a purely psychological and emotional attack, however distressing, is not legitimate self-defence. However, D was entitled to use reasonable means to defend his property, namely, his telephone number, and since the judge had not allowed the reasonableness of D's conduct in that matter to be put to the jury, the appeal should be allowed.

If the defendant mistakes the situation, believing (for example) that he is under threat when in fact he is not, the question is whether the force used in response was objectively reasonable in the circumstances as he honestly believed them to be.

R v Williams (Gladstone) [1987] 3 All ER 411, CA A thief T who robbed a woman in the street; T was apprehended by a bystander M who caught T and knocked him down. T called for help, and a young man D (who had not seen the start of the incident) intervened and hit M in order to protect T from further beating. At D's trial on charges of assault causing actual bodily harm, the Recorder said D's mistaken belief that M was acting unlawfully would be a defence only if it was reasonable. The Court of Appeal overruled this direction and said that any honest mistake would be sufficient. The reasonableness or unreasonableness of D's belief, said Lord Lane CJ, is material to the question whether the belief was held by D at all, but if the belief was in fact held its unreasonableness is irrelevant. The jury should be told that the prosecution have the burden of proving the unlawfulness of D's actions, and that if D was labouring under a mistake as to the facts he must be judged according to his mistaken view, whether or not on an objective view that mistake was reasonable. Beckford v R [1987] 3 All ER 425, PC (Jamaica) A police officer D, while investigating a report that a man was terrorising his family, shot and killed a man who ran out of the house. At D's trial for murder the judge directed the jury that he was to be acquitted if he reasonably believed he was at risk of death or serious injury, and D was convicted. His appeal was dismissed by the Jamaican Court of Appeal but allowed by the Privy Council, who D's belief need only be honest and not necessarily reasonable. R v Scarlett [1993] 4 All ER 629, CA A publican D was charged with manslaughter after using force to remove a drunk V from his property; V fell down a flight of steps and suffered head injuries from which he died. The Court of Appeal said the reasonableness of the force used was to be assessed in relation to D's perception of the facts. It is D's own honest belief in the need for his level of response that is significant, rather than an objective test of whether the force used was in fact reasonable. R v Faraj [2007] EWCA Crim 1033 An engineer called at the defendant's house to replace the electricity meter; the defendant (who said he thought the man was a burglar) restrained him and threatened him with a small knife before eventually letting him go. The defendant's appeal against his conviction for false imprisonment was allowed: Tuckey LJ said a person may lawfully use reasonable force to make a "citizen's arrest" or to protect his property; the statutory power of arrest arguably depends on a reasonable belief, but the protection of property is a common law defence and an honest belief is enough. The jury should have been invited to consider whether the defendant had honestly (even if unreasonably) believed the man to be a burglar, and if so whether the force he had used was reasonable.

If the force used is objectively excessive in the circumstances (or the circumstances as the defendant honestly believed them to be), the defence fails even though the defendant may honestly have believed that amount of force to be reasonable.

R v Owino [1995] Crim LR 743, CA A man D was convicted of assaulting his wife causing her actual bodily harm, and his appeal was dismissed. The Court said that in cases of self-defence based on mistake, a defendant may use as much force as is objectively reasonable in the circumstances as he subjectively believes them to be. He is not necessarily entitled to use as much force as he believes is reasonable, and to that extent the trial judge's direction to the jury had actually erred in D's favour. R v Clegg [1995] 1 All ER 334, HL A soldier D at a checkpoint in Northern Ireland shot and killed a teenage "joy-rider" travelling in a car that failed to stop. The evidence showed D had fired three shots as the car drove towards a colleague, and the judge said these were reasonable force in the defence of others. D's fourth and fatal shot was fired as the car drove away, and could only be excused if it was reasonable force to make a lawful arrest. The House of Lords agreed with the trial judge and the Court of Appeal of Northern Ireland that no alternative verdict of manslaughter is possible where the force used is excessive, and upheld D's conviction for murder. The House was in no doubt that this ruling was correct in law, but recognised the very difficult position in which a soldier on duty was placed and recommended Parliament to consider legislation. [D's conviction was subsequently quashed on other grounds relating to causation.] Morrow Geach & Thomas v DPP [1994] Crim LR 58, HC QBD Anti-abortion protestors were convicted of offences under the Public Order Act 1986 by shouting slogans, waving banners and blocking the entrance during a demonstration outside an abortion clinic, causing distress to some of the patients. They argued in their defence that illegal abortions were being performed at the clinic, and that s.3(1) of the Criminal Law Act 1967 allows the use of reasonable force in the prevention of crime. Dismissing their appeal, the High Court said it was immaterial whether illegal abortions were in fact being performed so long as DD honestly believed they were. However, the force used was not reasonable: DD were preventing others from exercising their lawful rights and were preventing all abortions, lawful or not. R v Martin [2002] 1 Cr App R 323, CA A farmer was convicted of murder and wounding with intent after shooting two burglars in his home. The jury apparently determined that in firing an (unlicensed) shotgun three times towards a torchlight he had intended to cause serious injury, and had gone beyond the "reasonable force" that he could properly have used to defend himself and his property. The Court of Appeal substituted a verdict of manslaughter because of diminished responsibility (which had not been fully argued at trial), but did not doubt the correctness of the jury's verdict on the facts found. Lord Woolf CJ said the test for reasonable force in self-defence is an objective one, taking no account of the individual defendant's psychological condition.

These common law rules were largely codified by s.76 of the Criminal Justice and Immigration Act 2008. This made no major changes, but declared in s.76(7)(b) that in determining the reasonableness of the force used, "evidence of a person's having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong [but not conclusive] evidence that only reasonable action was taken by that person for that purpose".

The increased tendency for police officers to be armed gives rise to questions as to whether lethal force can ever be reasonable not in self-defence but merely to make an arrest or prevent crime.

Attorney-General's Reference (No.1 of 1975) [1976] 2 All ER 937, HL McE, who was unarmed, was shot in the back by a soldier on duty after refusing to stop when ordered to do so. The soldier's defence when charged with murder included the assertion that although he knew McE was unarmed, he honestly and reasonably believed him to be a member of the IRA and believed there was no other way in which he could be apprehended. The soldier was acquitted by the single judge on the grounds that it had not been shown that he intended to kill or cause really serious injury, but the Attorney-General of Northern Ireland referred the question of lawful force to the Court of Appeal. The Court said the soldier had at least an arguable defence which should be left to the trier of fact, and the House of Lords agreed. It was up to the jury, they suggested, or in Northern Ireland to the single judge, to take into account the harm to be averted by preventing the terrorist's escape when deciding whether it was reasonable to use deadly force against him to prevent that harm. R v Hodgson (1997) unreported A police officer who shot and killed a robber escaping in a stolen car was acquitted by an Old Bailey jury at his second trial; the first jury had been unable to agree.

The Law Commission have proposed the consolidation of these rules with some amendments. They suggest that a person should be permitted to use such force as is reasonable in the circumstances to protect himself or another from injury, assault or detention caused by a criminal act, or from trespass to the person, to protect his property or that of another from appropriation, destruction or damage caused by a criminal act, or from trespass or infringement, or to prevent a crime or breach of the peace. The right to use reasonable force in effecting a lawful arrest, they suggest, should be preserved in a separate clause.

Their proposals would also extend the definition of a "criminal act" for this purpose to acts which were not in fact criminal because the actor was a young child, or under duress, or insane - this is obviously sensible. More significantly, they would allow an alternative verdict of manslaughter rather than murder when a person killed (with the necessary intention) in circumstances in which reasonable force would be justified, if he used excessive force honestly believing it to be reasonable.

Lawful correction

Another form of lawful force covers moderate and reasonable chastisement applied by parents to their children: the same lawful force could formerly be applied by schoolteachers, but this is no longer so. What is considered "moderate and reasonable" depends on the age of the child, and changes over time; there is pressure in some quarters to ban physical punishment altogether, but this position has not yet been reached.

Costello-Roberts v United Kingdom (1993) 19 EHRR 112, ECHR A boy of seven was given three strokes of the slipper by his head teacher for repeated misbehaviour. The European Cour

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