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Criminal Law 5th Edition Website

Chapter 1: Elements of a crime

Insert p. 11

A rare example of the principle in Miller being applied by the courts is the case of

Director of Public Prosecutions v Santana-Bermudez (2003). A police officer haddecided to undertake a search of the defendant, as she suspected that he was a ticket

tout. Initially she had asked him to empty his pockets and in doing so he revealed that

he was in possession of some syringes without needles attached to them. The police

officer asked the defendant if he was in possession of any needles or sharp objects.

He replied that he was not. The police officer proceeded to put her hand into the

defendants pocket to continue the search when her finger was pricked by a

hypodermic needle. When challenged that he had said he was not in possession of

any other sharp items, the defendant shrugged his shoulders and smirked at the police

officer. The defendant was subsequently found guilty of an assault occasioning actual

bodily harm on these facts. This offence is defined as requiring the commission of an

act, as opposed to an omission, but the appeal court applied the principles laid downin Miller. By informing the police officer that he was not in possession of any sharp

items or needles, the defendant had created a dangerous situation, he was then under a

duty to prevent the harm occurring. He had failed to carry out his duty by telling the

police officer the truth.

Chapter 3: Murder

Insert p. 45

In 2003 the Court of Appeal cleared Sally Clark, Tripti Patel and Angela Canning of

murdering their children. Angela Canning had been convicted in 2002 of killing her

seven week old son, Jason, in 1991 and her 18 month old child, Matthew, in 1999.

The prosecution had relied on the fact there were three unexplained deaths in one

family, which according to expert evidence made these deaths suspicious. She

claimed that her children had died of sudden infant death syndrome, (frequently called

cot death) and the Court of Appeal allowed her appeal. The Court of Appeal ruled

that where there was a dispute between experts as to the cause of the death, and there

was no other evidence to support a finding of murder, a prosecution should not be

brought. This was because the experts simply did not know what were the causes of

cot death and it would therefore be impossible to have a safe conviction for murder of

a child, when there was a possibility that the death of the child may have been caused

by natural circumstances. The Court of Appeal stated:

Unless we are sure of guilt, the dreadful possibility always remains that a

mother, already brutally scarred by the unexplained deaths of her babies, may

find herself in prison for life for killing them when she should not be there at

all.

Following this case the Attorney General announced that 258 child murder cases

would be reviewed, but only a small number were then referred on to the Criminal

Cases Review Commission to re-examine in detail whether there had been a

miscarriage of justice.

Chapter 5: Involuntary manslaughterInsert p. 83

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The recent Court of Appeal case ofRv Finlay (2003) suggests that courts will

be prepared to find a person who handed the victim a drug to have caused their

subsequent death. It relied on the House of Lords judgement of Environment

Agency v Empress Car Company (Abertillery) Ltd (1999) which took the view

that the free, deliberate and informed act of another party can only break the chain of

causation if it is something extraordinary as opposed to a matter of ordinaryoccurrence. The Court stated that the act of a victim choosing to consume the drug

was not something which, as a matter of law, would normally be regarded as breaking

the chain of causation. Where victims were habitual drug users it was foreseeable that

they would consume the drug handed to them. In the case ofDias itself, the Court of

Appeal had pointed out that:

It may seem to some that there is morally not a great deal between this

situation where A hands B a syringe containing a drug such as heroin, with

death resulting, and that where A injects B with his consent with the contents

of the syringe.

The courts really need to make a policy decision as to whether it is in the interests of

society to punish drug dealers for manslaughter when a drug user dies. On the one

hand drug dealing clearly causes considerable suffering in our society, on the other

hand the Advisory Council on the Misuse of Drugs found that it was more dangerous

for a drug user to inject drugs alone, than in the company of others. The threat of a

manslaughter conviction for those present at the time of the drug use may encourage

drug dealers to keep away from the place of drug use or leave, rather than provide

assistance when a drug user shows signs of ill-health. Instead, the academic Russell

Heaton has argued that only if the victims choice was not free and informed through

age, mental condition, improper pressure or deception should the drug dealer be found

to be the cause of the victims death (See Heaton, R. (2004), Principals? No

principles! [2004] Crim LR 463)

Insert p. 84 [new paragraph]

Rather surprisingly, in R v Andrews (2003) the Court of Appeal upheld a

conviction for unlawful and dangerous act manslaughter, where the unlawful act was

a strict liability offence. The prosecution were therefore not required to prove the

existence of any mens rea in the case. This seems very unsatisfactory and runs

counter to the view expressed in R v Lamb that mens rea is now an essential

ingredient in manslaughter.

Chapter 6: Non-fatal offences against the person

Insert p. 111 [new paragraph]

In Donovan (1934) the court stated that the injury had to be more than merely

transient and trifling. The defendant in Rv DPP (2003) relied on this case to argue

that he had not caused actual bodily harm because the victim had only momentarily

lost consciousness following a kick to the head. He argued that this was only a

transient harm and was not therefore sufficient. This argument was rejected by the

court. Donovan merely required that the injury must not be both transient and

trifling, on these facts the injury was transient but it was not trifling.

Insert p 113 [new paragraph]

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In determining whether grievous bodily harm has been inflicted, the courts can

take into account the particular characteristics of the victim, such as their age and

health. In deciding the severity of the injuries, an assessment has to be made of the

effect of the harm on the particular victim. Thus, in Rv Bollom (2003) the victim

was a 17 month child who had bruises over her body. In determining whether these

bruises amounted to grievous bodily harm the court could take into account the frailtyof a child.

Insert p. 114

The offence can be committed when somebody infects another with HIV. A

prosecution was brought under s. 20 in Rv Dica (2004). The defendant knew that he

was HIV positive and had unprotected sexual intercourse with two women. He was

prosecuted under s. 20 of the Offences Against the Person Act 1861. His initial

conviction was quashed on appeal and a retrial ordered because of a misdirection on

the issue of consent, but the Court of Appeal accepted that a person could be liable

under s. 20 for recklessly infecting another with HIV.

Chapter 8: Non-fraudulent property offences

Insert p. 153

Remoteness

The act constituting the actus reus of the offence must not be too remote in order to

constitute an appropriation. This point was emphasised in the case ofRv Briggs

(2003). In 1997 an elderly couple, Mr and Mrs Reid, decided to sell their home

to move to a new house near to their great-niece. The sale was handled on their

behalf by a firm of licensed conveyancers, Bentons. The solicitors acting for the

sellers of the new house were called Metcalfs. On 6 October 1997 the appellant

wrote to Bentons enclosing a letter of authority in the appellants handwriting but

which was signed by the Reids. In it, the Reids instructed Bentons to send by

telegraphic transfer 49,950 of the sale proceeds to Metcalfs bank account and to

remit the outstanding balance of the sale price to the Bank account of Mr and Mrs

Reid. The title in the new property was transferred to, and was subsequently

registered in, the name of the appellant and her father, Mr West. At first instance,

the appellant was convicted of theft of the 49,950.

On appeal to the Court of Appeal the central issue was whether there had been

an appropriation. The trial judge had directed the jury that there may be an

appropriation of the credit balance . notwithstanding that it was transferred with the

Reids consent, if that consent was induced by fraud. The appellant submitted that

such a payment did not amount to an appropriation, as it was made in accordancewith, and as a result of, the Reids instructions. The appeal was allowed. The Court

of Appeal held that there had been no appropriation and therefore no theft. The trial

judge had misdirected the jury. The Court cited with approval the case of Naviede

(1997) where Hutchison LJ stated

We are not satisfied that a misrepresentation which persuades the account holder

to direct payment out of his account is an assumption of the rights of the account

holder as owner, such as to amount to an appropriation of his rights within section

3(1) of the 1968 Act.

The Court of Appeal concluded in this case that:

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.where a victim causes a payment to be made in reliance on deceptive

conduct by the defendant, there is no appropriation by the defendant.

The key issue was that of remoteness. The Court of Appeal considered that

appropriation is a word which connotes a physical act which must not be a remote

action triggering the payment which gives rise to the charge. An act of deceiving anowner to do something fell outside the meaning of appropriation.

Thus, in the light of this case, certain acts will be treated as too remote to

amount to the appropriation. But the cut off point between those acts which can

amount to an appropriation and those which cannot because they are too remote is not

sufficiently clear. The judges are trying to draw a distinction between those acts

which are the the key to the property and those which are not. If the defendant signs

or forges a cheque or gives a bank instructions, those acts are treated as the key to the

property and can amount to an appropriation. Acts which are further removed from

the final transfer of the property or where the defendant has induced the victim to act

as the key to the property, will not amount to an appropriation because the defendants

acts are treated as too remote. This distinction between acts which can amount to anappropriation and those which are treated as too remote is very artificial:

The court seems anxious to develop the concept of remoteness in this context

in order to draw some distinction between theft and the fraud offences. But the reason

why the boundaries between theft and fraud have broken down is because of the

ruling that the consent of the owner to the taking of their property is irrelevant. This

has been taken to its extreme in the case ofHinks. While this principle has become

an established part of the criminal law, perhaps it is time to reconsider this approach

and the case ofDPP v Gomez (1993). Trying to draw a distinction between theft and

fraud offences on the basis of remoteness is artificial. There is no moral difference

between a case where the facts are found to be too remote and fall outside theft, such

as the current one, and where they are not found to be too remote.

Insert p. 154

Lost property still belongs to the original owner and can be stolen. On the other hand,

abandoned property cannot be the subject of a theft. In R v Rostron (2003) the

defendant had gone to a golf course at night and collected golf balls from a lake

without the golf course owners permission. The Court of Appeal said it would be a

question of fact for the jury to decide whether the golf balls had been lost or

abandoned by their original owners, and upheld his conviction.

Insert p. 170Burglary in society

According to the British Crime Survey (2003), domestic burglaries have fallen by 45

per cent in the past ten years. There are likely to be a number of reasons for this.

These include improved home security (for example, more homes are protected by

burglary alarms) and low unemployment. In addition, in the past burglars frequently

targeted expensive electrical equipment, such as videos and music centres, but the

value of this equipment has significantly decreased. Today burglars are more likely to

take smaller items, such as money, credit cards, cheque books and mobile phones.

People tend to carry these things with them on the street, which may be why with the

reduction of burglaries, there has been an increase in street robberies.

Insert p. 177 [new paragraph]

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The defendant in Rv Kellerher (2003) had entered an art gallery and decapitated a

statue of Margaret Thatcher. He was charged with criminal damage, and sought to

rely on the defence in section 5(2)(b). He argued that his aim was to draw attention to

his opposition to Margaret Thatchers policies, which continued to influence English

society and which he considered made the world a more dangerous place to live, and

would eventually leave to the destruction of the planet. The trial judge rejected hisdefence because the defendants primary purpose had been to attract publicity for his

views, and this motive did not fall within the defence. There was no evidence that he

genuinely believed that his action was necessary in order to protect property, a right or

interest.

Chapter 9: Fraudulent property offences

Insert p. 189

The case of R v Sofroniou (2003) has confirmed and applied these

developments in the law. The appellant had been convicted of obtaining services by

deception and attempting to obtain services by deception contrary to section 1(1) of

the Theft Act 1978. The offences were concerned with identity theft, where theappellant was accused of pretending to be someone else in order to deceive banks into

providing banking services and credit card companies into providing credit cards.

The appellant appealed against conviction. His appeal was dismissed. The Court of

Appeal held that opening and using bank accounts and obtaining and using credit

cards could be an offence under s. 1 of the Theft Act 1968. The Court of Appeal

stated that:

there should no longer be any doubt but that dishonestly inducing a bank or

building society to provide banking or credit card services is also within the

section, provided the requirement as to payment is also satisfied. [para.32]

The prosecution submitted to the Court of Appeal that the words on the

understanding that the benefit has been or will be paid for were only intended to limit

the ambit of the section to commercial transactions. They served to exclude the

obtaining of free services by deception from the ambit of the offence. Banks and

building societies are commercial organisations, which cannot make money by

providing free services. The prosecution therefore argued that it should be assumed

that if a customer opens and operates an account, he will pay for the services so

provided by some means. Banks frequently make charges for running their

customers accounts, charge interest on overdrawn accounts and pay little or no

interest on accounts in credit compared to the amount they receive for the samemoney in the market.

This argument was rejected by the Court of Appeal. It held that there had to

be an agreement or sufficient understanding that an identifiable payment or payments

have been or will be made by or on behalf of the person receiving the services to the

person providing them. This understanding would not automatically exist between a

bank and its account holders. On the actual facts the Court found that there was a

sufficient understanding as to payment.

It is disappointing that the Court was not prepared to take a common sense

approach to when there is an understanding that the service will be paid for. There is

no moral difference between a person who takes money from a bank having

dishonestly obtained an apparently free banking service, rather than a banking servicethat more obviously has to be paid for. The prosecutions argument seems eminently

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sensible and persuasive: all banking services are commercial services which the banks

intend the customer to pay for in one way or another. There is no advantage in the

courts looking at the precise contractual words to see in exactly what way this service

will be paid for, and therefore whether a client might have the opportunity of avoiding

payment.

Insert p. 196

The Home Office has now accepted the Law Commissions proposals and has issued

a consultation paper on the proposed reforms.

Chapter 13 General defences

Insert p. 278

The High Court has recently confirmed that the defendant must be acting to prevent a

crime. The defendants in DPP v Bayer (2003) had attached themselves to tractors to

prevent the planting of genetically modified maize. They genuinely believed that the

crops would damage neighbouring property. In their defence they sought to rely on

the private defence. This defence was rejected because they were not seeking toprevent the commission of a crime, as the crops were going to be planted legally.

Insert p. 305

For the defence to be allowed the consent must be genuine. In the past, the courts

treated a consent as genuine even though it was not an informed consent. Thus, in R

v Clarence (1888) a husband had not informed his wife that he was infected with

gonorrhoea (which was, at the time, an incurable and fatal disease). He was

prosecuted with infecting his wife with the disease under s. 20 of the Offences

Against the Person Act 1861. He argued that he had the defence of consent and the

High Court accepted his defence. The court considered that consent to sex also

involved consent to any incidental risk of injury or illness of which the victim may be

unaware.

However, in Rv Dica (2004) the Court of Appeal ruled that the old case of

Clarence no longer reflects the current law. A person consenting to sexual

intercourse was not also automatically consenting to any incidental risk of injury or

infection. In order for a person to consent, they must know the nature and quality of

what they are accepting. In Rv Dica the defendant knew that he was HIV positive.

He had unprotected sexual intercourse with two women. He claimed that they knew

that he was HIV positive and had impliedly consented to have unprotected sexual

intercourse in these circumstances. They denied this. The defendant was convicted,

sentenced to eight years imprisonment, and appealed. The Court of Appeal ruled thatRv Clarence no longer reflected the current law on consent. In Dica the victims had

consented to sexual intercourse and therefore the defendant was not liable for rape.

However the victims had not automatically consented to the risk of incidental

infection, because they did not know that the defendant was carrying an infection.

Implied consent to a risk must presuppose knowledge of it. A retrial was ordered so

that a new jury could consider whether they

Due to a misdirection by the trial judge on a separate aspect of consent, a

retrial was ordered.

Insert p. 307

Consent to sexual intercourse

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In the case ofR v Dica the defendant was accused of recklessly infecting two women

with HIV contrary to s. 20 of the Offences Against the Person Act 1861. The

defendant argued that the women knew he was infected and had consented to sexual

intercourse in these circumstances. The trial judge had withdrawn the issue of

consent from the jury. He held that, whether or not the complainants knew of Ds

condition, their consent was irrelevant and provided no defence because Rv Browndeprived them of the legal capacity to consent to such serious harm. Dica was

convicted and sentenced to eight years imprisonment. The Court of Appeal allowed

his appeal, on the basis that the trial judge should not have withdrawn the issue of

consent from the jury. Modern society was not prepared to criminalise adults who

willingly accepted the risks taken by consenting to sexual intercourse.

Criminalisation would undermine the understanding that sexual relationships were

pre-eminently private and personal to the individuals involved in them. A retrial was

ordered. A person could consent to the risk of being infected by a sexually

transmitted disease, and this consent would provide a defence to a charge under s. 20

of the Offences Against the Person Act of recklessly inflicting grievous bodily harm

on another.

Insert p. 326

Add to bibliography

Blogg, A and Stanton-Ife J (2003)Protecting the vulnerable: legality, harm and theft,

Legal Studies, vol. 23 no. 3, p.402.

Clarkson, C.M.V. (2004)Necessary Action: A new Defence [2004] Crim LR 80

Davies, M. (2004)Lawmakers, Law Lords And Legal Fault: Two Tales From

The(Thames) River Bank: Sexual Offences Act 2003; R v G and Another[2004]

Journal of Criminal Law 130

Haralambous, N. (2004)Retreating from Caldwell: restoring subjectivism, [2004]

NLJ 1712

Hart, H (1968)Punishment and responsibility, New York: Oxford University Press

Heaton, R. (2004),Principals? No principles! [2004] Crim LR 463

Pedain, A (2003),Intention and the Terrorist Example, [2003] Crim LR 579

Temkin, J. and Ashworth, A. (2004) The Sexual Offences Act 2003 (1) Rape, Sexual

Assaults and the Problems of Consent[2004] Crim LR 328.

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