Actus reusTheactus reusin criminal lawconsists of all elements of a crime other than the state of mind of the defendant.In particular,actus reusmay consist of:conduct, result, a state of affairsoran omission.Conduct- the conduct itself might be criminal. Eg. theconduct oflying under oath represents theactus reusof perjury. It does not matter that whether the lie is believed or if had any effect on the outcome of the case, theactus reusof the crimeis complete upon the conduct.Examples of conduct crimes: Perjury Theft Making off without payment Rape Possession of drugs or a firearm

Result -Theactus reusmay relate to the result of the act or omissionof the defendant. The conduct itself may not be criminal, but the result of the conduct may be.Eg it is not a crime to throw a stone, but if it hits a person or smashes a window it could amount to a crime.Causationmust be established in all result crimes.Examples of result crimes: Assault Battery ABH Wounding and GBH Murder & Manslaughter Criminal damageState of affairs -For state of affairs crimes theactus reusconsists of'being' rather than 'doing'. Eg 'being' drunk in charge of a vehicle (Duck v Peacock[1949] 1 All ER 318Case summary)or 'being' an illegal alien(R vLarsonneur(1933) 24 Cr App R74case summary).Omission -Occassionally an omission can amount to theactus reusof a crime.Thegeneral rule regarding omissions is that there is no liability for a failure to act. Eg if you see a child drowning in shallow water and you don't do anything to save that child you will notincur criminal liability for your inaction no matter how easy it may have been for you to save the child's life. This general rule however, is subject toexceptions:1. Statutory duty:In some situations there is a statutory duty to act. Egto provide details of insurance after a traffic accident orto notify DVLA when you sell a vehicle.2. Contractual duty:If a person owes a contractual duty to act, then a failure to meet this contractual duty may result in criminal liability:R v Pittwood[1902] TLR 37Case summary3. Duty imposed by lawTheactus reuscan be committed by an omission where there exists a duty imposed by law. There are three situations in which a duty may be imposed by law. These are where the defendant creates a dangerous situation, where there has been a voluntary assumption of responsibility and misconduct in a public office.Additionally an omission may be classified as part of a continuing act.a). Creating a dangerous situation and failing to put it right:R v Miller[1983] 2 AC 161Case summaryb). Assumption of responsibility:R v Stone & Dobinson[1977] 1 QB 354Case summaryc). Misconduct in a public office:R v Dytham[1979] Q.B. 722Case summaryAn omission can also be classed as part of a continuing act:Fagan v MPC[1969] 1Q.B. 439Case summaryMens rea- Intention

Mens reain criminal lawis concerned with the state of mind of the defendant. Most true crimes will require proof ofmens rea. Wheremens reais not required the offence is one ofstrict liability.There are three main levels ofmens rea:intention,recklessnessandnegligence.IntentionIntentionrequires the highest degree of fault of all the levels ofmens rea. A person who intends to commit a crime, can generally be said to be more culpable than one who acts recklessly.Intentiondiffers from motive or desire (Per Lord BridgeR vMoloney[1985] AC 905. Thus, a person who kills a loved one dying from a terminal illness, in order to relieve pain and suffering, may wellact out of good motives. Nevertheless, thisdoes notprevent themhaving the necessaryintentiontokill seeR v Inglis[2011] 1 WLR 1110Case summary.Intention can be divided intodirect intentandoblique intent.Direct intent:The majority of cases will be quite straight forward andinvolve direct intent. Direct intentcan be said to existwhere the defendant embarks on a courseof conduct to bringabout a result which in fact occurs. Eg D intends to kill his wife. To achieve that result he gets a knife from the kitchen, sharpens it and then stabs her, killing her. The conduct achieves the desired result.Oblique intent:Oblique intent is more complex. Oblique intent can be said to exist where the defendant embarks on a course of conduct to bring about a desired result, knowing that the consequence of his actions will also bring about another result. Eg D intends to kill his wife. He knows she is going to be on a particular aeroplane and places a bomb on that aeroplane. He knows that his actions will result in the death of the other passengers and crew of the aeroplane even though that may not be part ofhis desirein carrying out the action. In this situationD is no less culpable in killing the passengers and crew than in killing his wife ashe knows that the deaths will happen as a result of his actions.

The courts have struggled to findan appropriate test to apply in cases ofoblique intent. In particular the questions which have vexed the courts are:1. Should the test be subjective or objective?2. What degree ofprobability is required before it can be said that the defendant intended the result?3. Whether the degree of probability should be equal to intention or whether it is evidence of intention from which the jury may infer intentionSubjective or objective testAsubjective testis concerned with the defendant's perspective. In relation tooblique intentit would be concerned only with whether the defendant did foresee the degree of probability of the result occurring from his actions. Anobjective testlooks at the perspective of a reasonable person. Ie Would a reasonable person have foreseen the degree of probability of the result occurring from the defendant's actions.It is arguable, that since intentionrequiresthe highest degree of fault, it should be solely concerned with the defendant's perception. In addition, intention seems to be a concept which naturally requires a subjective inquiry. It seems somehow wrong to decide what the defendant's intention was by reference to what a reasonable person would have contemplated. However, originally an objective test was applied to decide oblique intent:DPP v Smith[1961] AC 290Case summaryThis position was reversed by statute bys 8 Criminal Justice Act 1967S. 8 Proof of criminal intentA court or jury, in determining whether a person has committed an offence,(a)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(b)shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances.The effect of s.8 was considered in:R vHyam[1975] AC 55Case summary

The House of Lords accepted asubjective testwas applicable. However, the majority decision of the House of Lords was out of line with s.8 in that it was accepted that foresight of consequences being highly probable was sufficient to establish intent.(Lord Hailsham dissenting)a point which was taken and rectified inR vMoloney[1985] AC 905Lord Bridge's test on oblique intent:

"First, was death or really serious injury in a murder case (or whatever relevant consequence must be proved to have been intended in any other case) a natural consequence of the defendant's voluntary act? Secondly, did the defendant foresee that consequence as being a natural consequence of his act? The jury should then be told that if they answer yes to both questions it is a proper inference for them to draw that he intended that consequence."However,R vMoloneyleft a problem with regards to the degree of probability required Case summary. This was considered in:

R vHancock & Shankland[1985] 3 WLR 1014 Case summaryThe degree of probability was still causing problems and the cases ofR vMaloneyandR vHancock and Shanklandwere reviewed by the Court of Appeal inR vNedrickwhich reformulated the test.

R vNedrick [1986] 1 WLR 1025Case summaryLord Lane CJ:"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 appreciated that such was the case."

The authority of this test was questioned inWoollin.The House of Lords largely approved of the test with some minor modifications setting the current test of oblique intent:R vWoollin[1999] AC 82Case summary

The current test of oblique intent:"Where the charge is murder and in the rare cases where the simple direction is not enough, the jury should be directed that they are not entitled tofindthe 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 appreciated that such was the case."

The decision is one for the jury to be reached upon a consideration of all the evidence.Mens rea- RecklessIn general terms, beingrecklessrefers to the taking of an unjustified risk.Recklessnessin criminallaw has given rise to more difficulty. In particular the question as to whether asubjective testshould apply torecklessnessor whether anobjective testshould apply.In the context of criminal damage, originally the leading case in this area ofR v Cunninghamheld that asubjective testapplied to determinerecklessness:R v Cunningham[1957] 2 QB 396 (Case summary)This gave rise toCunningham recklessnesswhichasks: didthe defendant foresee the harm that in fact occurred, mightoccur from his actions,butnevertheless continueregardless of the risk.Cunningham recklessnesswas followed inR vBriggs[1976] 63 CAE 215. However, the subsequent case ofR vParker(1976) 63 CAS 211modified the test to include closing one's eyes to an obvious risk. These cases were reviewed by the Court of Appeal inR vStephensonwhere it was held asubjective testapplied:R vStephenson[1979] QB 695Case summaryHowever, this was followed by:MPC v Caldwell[1982] AC 341Case summary

This introducedCaldwell recklessness:A person is reckless as to whether property is destroyed or damaged where:(1) he does an act which in fact creates an obvious risk that property will be destroyed or damaged and(2) when he does the act he either has not given any thought to the possibility of there being any such risk or has recognised that there was some risk involved and has nonetheless gone on to do it.Caldwell recklessnessradically altered the law and received widespread criticism. The tension betweensubjective and objective testsofrecklessnesscontinued witheach test being problematic. The difficulty with asubjective testis that it is based entirely on the defendant's state of mind and it is for the prosecution to prove that the defendant did foresee a risk of harm. It is difficult to prove a state of mind. It allows too many defendants to escape liability by simply claiming they did not foresee a risk. However,Caldwell recklessnessis capable of causing injustice as it criminalises those who genuinely did not foresee a risk of harm including those who are incapable of foreseeing a risk as the following case illustrates:Elliot v C[1983] 1 WLR 939Case summary

Subjective recklessness was held to apply to non-fatal offences against the person:

R v Spratt[1990] 1 WLR 1073 Case summary

DPP v Morgan[1976] AC 182 Case summary

R v Parmenter[1991] 94 Cr App R 193 Case summaryIn addition to causing injustice other criticisms ofCaldwell reckless: Whilst criminal damage was subject toCaldwell recklessness,Cunningham recklessnessapplied to offences against the person and thus property was given a greater level of protection. The precise limits as to which offences required which type of recklessness were not fully understood or defined Having two definitionsfor the same word was confusing The test was difficult for juries to understand Having an objective test blurs the distinction between negligence and recklessness There was uncertainty as to whether the Caldwell lacuna existed.Caldwell recklessnesswas eventually overruled by the House of Lords:R v G & R[2003] 3 WLRCase summary

The House of Lords held asubjective standard now applies to criminal damage:"A person acts recklessly within the meaning of section 1 of the Criminal Damage Act 1971 with respect to -

(i) a circumstance when he is aware of a risk that it exists or will exist;

(ii) a result when he is aware of a risk that it will occur;

and it is, in the circumstances known to him, unreasonable to take the risk."Negligence in criminal liabilityNegligenceplays a minor role in criminal liability. It used to form the basis of some driving offences but this has largely been superseded by recklessness.Negligenceadheres to anobjective standard. This is strictly applied as can be seen inMcCrone v. Riding[1938] 1 All ER 137where it was held that a learner driver must meet the standard of a qualified driver.

The main role fornegligence in criminal lawiswith regards to gross negligence manslaughter. This requires the prosecution to establish that the defendant owed a duty of care, was in breach of duty which resulted in death.The current test for establishing liability for this offence was set out in:R vAdomako[1994] 3 WLR 288Case summaryAdomako test:"whether the conduct of the defendant was so bad in all the circumstances as to amount in their judgment to a criminal act or omission."

(The coincidence ofactus reusandmens rea)It is a principle of English law that theactus reusandmens reamust coincide.That isthey must happen at the same time. This is sometimes referred to as thecontemporaneity ruleor thecoincidence ofactus reusandmens rea. However, the courts often apply a flexible approach in holding that theactus reusis a continuing act. See:

DPP v Ray[1974] AC 370Case summary

Thabo-Meli v R[1954] 1 WLR 228Case summarycriminal act or omission."Transferred MaliceThe doctrine oftransferred maliceapplies where themens reaofone offence can be transferred to another. For example,suppose A shoots at B intending to kill B, but misses and hits and kills C. Transferred malice can operate so thatthemens reaof A (intention to kill B) can be transferred to the killing of C. ConsequentlyA isliable forthe murder of C, despite the fact that hedid not actually intend to kill C.An early illustration oftransferred malice:R v Saunders(1573) 2 Plowd 473Case summaryA further example oftransferred malice:R v Latimer(1886) 17 QBD 359Case summaryTransferred malicedoes not operate where the crime which occurred was different from that intended:R v Pembliton(1874) LR 2CCR 119Case summaryA-G RefNO. 3 OF 1994Case summaryStrict LiabilityStrict liabilitycrimes are crimes which require no proof ofmens reain relation to one or more aspects of theactus reus.Strict liabilityoffences are primarily regulatory offences aimed at businesses in relation to health and safety. Also many driving offences are crimes ofstrict liabilityeg. speeding, driving without insurance. The use ofstrict liabilityin criminal law is controversial as it means a personmay beliable where they are not at fault or have taken all reasonable care to ensure compliance of the law (See in particularCallow v Tillstone). However, the harshness ofstrict liabilityin criminal law isgenerally tolerated as it brings practical benefits and is oftenused to provide a greater level of protection to the public in areas where it is perceived that there is a need to provide such protection.Asstrict liabilityhas the potential to create injustice and operate harshly there is a general presumption thatmens reais required to impose criminal liability:Gammon (Hong Kong) Ltd v Attorney-General of Hong Kong[1985] AC 1Case summary

According toGammon, this presumption may be rebutted where:1. The crime is regulatory as oppose to a true crime; or

2. The crime is one of social concern; or

3. The wording of the Act indicates strict liability; or

4. The offence carries asmall penalty.There is some overlap with the categories in that where a crime is regulatory it is often one of social concern and carries a small penalty.1. The crime is regulatory as oppose to a true crimeWhere the crime is regulatory as oppose to a true crime, the presumption ofmens reagives way to a finding of strict liability. Conversely where there is a true crime the presumption ofmens reaprevails.This was seen inSweet v Parsley[1970] AC 132where it was held that the offence in question was a true crime and thereforemens reawas required:Sweet v Parsley[1970] AC 132Case summaryExamples of regulatory offences include healthy and safety regulations egpollution and sale of unfit meat:Alphacell v Woodward[1972] AC 824Case summaryCallow v Tillstone(1900) 64 JP 823Case summaryIt was thought that there existed a rule on age related offences, iethat strict liability applied in relation to the age and that it was no defence if the person held a reasonable belief that the person was over the specified age:R v Prince(1875) LR 2 CCR 154Case summaryHowever, this was laterheld not to apply and if any such rule did exist, it did not survive the decision inSweet v Parsleyin relation to true crimes.See:B v DPP [2000] 2 AC 428Case summary

R v K[2001] UKHL 41Case summary2. The crime is one of social concernWhere the crime is one of social concern then the presumption ofmens reamay be rebutted. This is based on the assumption that strict liability imposes higher standards of care and provides greater levels of protection to the public. Examples of offences of social concern include driving offences egR v Williams[2011] 1 WLR 588 (case summary) andhealth and safety regulations. SeeAlphacell v WoodwardandCallow v Tillstoneabove.3. The wording of the Act indicates strict liabilityThe presumption ofmens reais rebutted by express provision in the statute excluding the requirement ofmens rea. Where the statute is silent as to the requirement the general presumption remains, however, the courts may look at other offences created under the same Act. If the other offences expressly requiremens rea,thecourts may well take the view that the omission to refer to such a requirement was deliberate and that Parliament intended to create an offence of strict liability. This approach was taken in the following cases:PSGB v Storkwain Ltd[1986] 2 All ER 635Case summaryCundy v Le Cocq(1884) 13 QBD 207Case summaryHowever, a different approach was taken in the following case in which the court was considering the same statute which applied inCundy:Sherras v De Rutzen[1895] 1 QB 918Case summary4. The offence carries asmall penaltyGenerally where an offence carries asmall penalty, this will indicate that it isnotatruecrime and therefore one of strict liability. For example in the case ofWilliams[2011] 1 WLR 588 (Case summary) the offence of causing death by driving without a licence was considered to be one of strict liability as the penalty was max 2 years imprisonment whereas the offence of causing death be reckless driving carried a max sentence of 14 years.However, just because an offence carries a heavy penalty does not mean that it is one requiringmens rea:R v Prince(1875) LR 2 CCR 154Case summaryR v Howells[1977] 3 All ER 417Case summaryArguments for allowing strict liabilityProtection of the publicStrict liability raises standards where the health and safety of the public is at stake and forces those in a position of responsibility to take extra precautions.For example:Sale of unfit meat -Callow v TillstonePollution -Alphacell v WoodwardPossession of firearms -R v HowellsDangerous buildings -GammonDriving offencesPromoting enforcement of the lawStrict liability ensures more convictions are secured and does not allow people to escape liability through a fabricated account of their state of mind.Deterrence/raising standardsIt is often argued that imposing strict liability will lead to people taking more care and act as a deterrent to others.Easier to AdministerThe majority of strict liability offences are dealt with administratively often through the post without the need for a court hearing. Other agencies of enforcement may be involved such as the Health and Safety Executive and Environmental Agencies. Ifmens reawas required to proved in every case for such offences, the courts would be unable to cope with the workload.Arguments against strict liabilityInjusticeA person may be liable where they are not at fault and have exercised all reasonable care. This offends the natural sense of justice as illustrated in the following cases:Callow v Tillstone- The butcher was liable despite doing everything possible to have the meat checked out.R v Howells- The defendant was liable despite being unaware that he required a licence and had no intention to use the gun as a weaponPSGB v Storkwain- The pharmacist had a genuine belief the prescription was valid.Strict liability does not necessarily act as adeterrentIn order to act as a deterrent, a personmust have knowledge of what they are doing is wrong beforebeing able to take steps to prevent it. In many casesthe defendantis unaware of the circumstances leading to liability seeCallow v Tillstone, Alphacell v Woodward, PSGB v Storkwain.Also speeding, which isarguablya crime which iscommitted more than any other, is one of strict liability. If strict liability was an effectivedeterrent then we would have nospeeding cars on the roads.StigmaAny criminal offence carries a stigma and needs to be declared for employment purposes. It can cause immense damage to a person's or a business' reputation and therefore proof of fault should always be a requirement in establishing criminal liability.Causation in criminal liabilityCausationrefers to the enquiry as to whether the defendant's conduct (or omission) caused the harm or damage.Causationmust be established in allresultcrimes. Causation incriminal liabilityis divided intofactual causationandlegal causation. Factual causation is the starting point and consists of applying the'but for'test. In most instances, where there exist no complicating factors,factual causationon its own will suffice to establish causation. However, in some circumstances it will also be necessary to considerlegal causation.Under legal causation the result must be caused by aculpable act, there is no requirement that the act of the defendant was the only cause, there must be nonovus actus interveniensand the defendant must take his victim as he finds him (thin skull rule).Factual causationFactual causation is established by applying the 'but for' test. This asks, 'but for the actions of the defendant, would the result have occurred?' If yes, the result would have occurred in any event, the defendant is not liable. If the answer is no, the defendant is liable as it can be said that their action was a factual cause of the result.R v White[1910] 2 KB 124Case summary

Legal Causation1. Legal causation requires that the harm must result from a culpable act:R v Dalloway(1847) 2 Cox 273Case summaryHowever, this does not apply where the offence is one of strict liability:R v Williams[2011] 1 WLR 588Case summary2. The defendant's action need not be the sole cause of the resulting harm, but it must be more than minimal:R v Benge(1865) 4 F. & F 504Case summary3. There must be nonovus actus interveniens.Anovus actus interveniensisa new intervening act which breaks the chain of causation. Different tests apply to decide if the chain has been broken depending on the intervening party.a). Act of a third partyThe act of a third party will generally break the chain of causation unless the action was foreseeable:R v Pagett(1983) 76 Cr App R 279Case summary

b). The act of the victimWhere the act is of the victim, the chain of causation will not be broken unless the victim's actions are disproportionate or unreasonable in the circumstances:R v Roberts[1971] EWCA Crim 4Case summaryR v Williams & Davis[1992] Crim LR 198Case summaryc) Medical interventionWhere medical intervention contributes to death, the courts have been inconsistent in their approach.R v Jordan(1956) 40 Cr. App. E. 152Case summaryR v Smith[1959] 2 QB 35Case summaryR v Cheshire[1991] 1 WLR 844Case summary4.Thin skull rule (egg shell skull rule)Under thethin skull rule,the defendant must take his victim as he finds him. This means if he has a particularly vulnerable victim he is fully liable for the consequences to them even if an ordinary person would not have suffered such severe consequences. For example if Dcommits a minor assault on V who has a heart condition andV suffers a heart attack and dies. D is liable for the death of V even though such an attack would result in no physical harm to some one without a heart condition.This rule applies irrespective of whether the defendant was aware of the condition.R v Hayward(1908) 21 Cox 692Case summaryThe thin skull rule also applies where the victim has refused medical treatment which would have saved them:R v Holland(1841) 2 Mood. & R. 351Case summaryR v Blaue[1975] 1 WLR 1411Case summaryNon-fatal offences against the person - Criticisms The Law Commission inLegislating the Criminal Code: Offences Against the Person and General Principlescriticised NFOAPs on three main issues: firstly the language used is complicated, obscure and out dated, secondly the structure of the offences and thirdly the Law Commission was critical of the effectiveness of the current law on NFOAPs. The Law Commission proposed to repeal Ss 18, 20 & 47 and replace them with new provisions. The Language used in the OAPA 1861 is no doubt out dated. For example the words grievous and malicious are not generally used in modern times and have required interpretation by the courts. Grievous has been interpreted as meaning really serious (DPP v Smith), however, malicious has been given an interpretation quite unrelated to what one might expect. In general parlance the word malicious is perhaps related to evil or hatred whereas in legal terms malicious means intention or reckless. There exist further problems with misleading language used.For example, in every day usage, the word assault generally conjures up an image of physical attack whereas in legal terms no physical contact is required. The term battery in general usage suggests a higher level of force than is actually required by law. The use of the word bodily harm under s.18, 20 and 47 includes psychiatric harm according toR vIreland,R v Burstow&R v Constanzayet it is highly unlikely the Victorian Draftsmen would have had this type of harm in mind.

Use of the word inflict has caused the courts considerable problems. It was first interpreted as requiring proof of an assault or battery(R v Clarence).InR vWilsonit was stated all that was required was the direct application of force, however, inR vMartinthe defendant was liable where the force was indirectly applied. The current meaning was established inR v Burstowas simply meaning cause. The structure of the offences can also be criticised. There is no statutory definition of assault or battery and there are no clear boundaries between the offences. Any intentional touching of another without consent will amount to a battery (Faulkner v Talbot)whereas any hurt or injury calculated to interfere with the comfort of the victim amounts to ABH(RvMiller). There seems little difference between the two other than interference with comfort, yet battery carries a maximum penalty of 6 months whereas for ABH it is 5 years. Similarly there is no clear boundary between ABH and GBH it is for the jury to decide what amounts to really serious harm and different juries will differ in their opinions. ABH and GBH can have very different levels of severity of injury and yet an offence of GBH under s.20 carries the same max penalty as an offence of ABH under s.47. Yet for GBH the punishment jumps from 5 years to life for an offence under s.18 which could involve the same injury as an offence under s.20. It is illogical to have a separate offence of wounding which is considered alongside GBH. A breaking of the 7 layers of the skin constitutes a wound (Moriarty v Brookes). Thus a pin prick could suffice which is clearly far removed from really serious harm. A further criticism is the effectiveness of the offences. Many NFOAPs will go unpunished. Many will not be reported and many that are reported may not be prosecuted. This has been a particular problem in the past with regards to domestic violence. Prosecutors will generally charge under the lesser offence in order to secure a conviction and plea bargaining is often used. Also there is a practice in some areas of not prosecuting assault and battery as the costs involved outweigh the benefitsCommon assaultCommon assaultis a summary offence. Assault and batteryhave no statutory definition. The definition and all elements of the offence ofassaultare set out in case law. The punishment (maximum 6 months imprisonment) is set out in statute under s.39Criminal Justice Act 1988.Definition of assaultFagan v MPC[1969] 1Q.B. 439Case summaryThe House of Lords set the definition of assault as:"an assault is committed where the defendant intentionally or recklessly causes the victim to apprehend immediate unlawful personal violence."Actus reusof assault: The victim must apprehend Immediate Unlawful Personal violence

ApprehendThe victim need not be put in fear but must be aware that they are about to be subjected to violence. If the victimdoes not anticipate unlawful personal violence there is no assault:R v Lamb[1967] 2 QB 981Case summaryWhere the victim apprehends immediate unlawful personal violence an assault will be committed even if there was no actual threat of violence:Logdon v DPP[1976] Crim LR 121Case summaryThe actions of the defendant must cause the victim to apprehend immediate unlawful personal violence. Originally it was thought that only conductcould amount to an assault:R v Meade and Belt(1823) 1 Lew. C.C. 184Case summaryHowever inR v Wilson[1955] 1 WLR 493 (Case summary),it wasstated obiter that words could amount to an assault. Later case law has accepted that words can amount to anassault:R v Constanza[1997] Crim LR 576Case summaryIn the following case the court went further and held that silence can amount to an assault:R v Ireland[1997] 3 WLR 534Case summaryWords can also negate an assault:Tuberville v Savage(1669) 1 Mod Rep 3Case summaryImmediateThreats of future violence will not amount to an assault. Smith and Hogan's Criminal Law (4th ed.), p.351 states, "There can be no assault if it is obvious the complainant the defendant is unable to carry out his threat, as where D shakes his fist at P who is safely locked inside his car." However, the courts have adopted a more liberal approach to the requirement of immediacy:R v Constanza[1997] Crim LR 576Case summarySmith v Chief Constable of Woking(1983) 76 Cr App R 234Case summaryUnlawfulIf the defendant has a lawful excuse to use force, the actions will not amount to anassault. This includes: Reasonable punishment of a childS.58 Children Act 2004 Where the victim consents Where the defendant acts in self- defence or prevention of a crimePersonal violenceThe term personal violence can be misleading in that the victim need only apprehend the level of force thatamounts to atechnicalbattery. Ie any touching will suffice.Mens reaof assaultThemens reaof assault is intention to cause the victim to apprehend immediate unlawful personal violence or being reckless as to whether such apprehension is caused.(MPC v Fagan[1969] 1Q.B. 439case summary).The caseofR vParmenter[1991] 94 Cr App R 193 (case summary) established that subjective recklessness applies to non-fatal offences against the person.BatteryBatteryis a summary offence.Assault and batteryhave no statutory definition. The definition and all elements of the offence ofbatteryare set out in case law. The punishment (maximum 6 months imprisonment) is set out in statute under s.39Criminal Justice Act 1988.Definition of batteryR v Ireland[1997] 3 WLR 534Case summaryLord Steyn defined battery as:"unlawful application of force by the defendant upon the victim"

Actus reusof battery Application Unlawful Physical forceApplicationThe application of force need not be direct.DPP v K (a minor)[1990] 1 WLR 1067Case summaryFagan v MPC[1969] 1Q.B. 439Case summaryUnlawfulIf the defendant has a lawful excuse to use force the actions will not amount to a battery. This includes: Reasonable punishment of a childS.58 Children Act 2004 Where the defendant acts inself- defence or prevention of a crime Where the victimconsentsOn the issue of consent specifically related to battery, see Goff LJ's comments in the following case:Collins v Wilcock[1984] 3 All ER 374Case summarySee also:Donnelly v Jackman[1970] 1 All E.R. 987Case summaryPhysical forcePhysical force is perhaps a misleading phrase in that it suggests a high level of force however, any touching will suffice:Faulkner v Talbot[1981] 3 All ER 468

Lord Lane CJ defined unlawful physical force as"any intentional [or reckless] touching of another person without the consent of that person and without lawful excuse. It need not necessarily be hostile, rude, or aggressive.Mens reaof battery Intention to apply unlawful physical force or, Being reckless as to whether such force is applied (Subjective reckless appliesR vParmenter[1991] 94 Cr App R 193Case summary)Actual Bodily Harm (ABH) under S.47The offence ofactual bodily harmis set out inS.47 Offences Against the Person Act 1861. Which provides that it is anoffence to commit an assault occasioning actual bodily harm. Whilst the statute only refers to assault, the offence may also be committed by a battery. In factit is far more common for offences under s.47 to be committed by battery rather than by an assault.Actual bodily harmis a triable-either-way offence. The maximum sentence forABHis 5 years imprisonment.Actus reusof ABH Assault or battery which causes Actual bodily harm

Assault or batteryTo constitute an offence under s.47 all the elements of anassaultorbatterymust be present. However, some factors which may make an assault or battery lawful can not be applied to make an offence under s.47 lawful in particular: Reasonable punishment of a childS.58 Children Act 2004 ConsentA-G ref no 6 of 1980[1981] QB 715Case summaryIt used to be lawful for parents or others in loco parentis to use reasonable force in order to chastise children:R v Hopley(1860) 2 F&F 202Case summaryHowever, English lawregarding lawful chastisementwas held to be in breach ofthe European Convention of Human Rights:A v UK(1999) 27 EHRR 611Case summary Lawful chastisement was abolished by s.58 of the Children Act 2004 and replaced with reasonable punishment of a child. This can not be used as a defence in relation toABH, GBH or wounding but may be allowed in assault and battery only.The assault or battery must cause actual bodily harmThis requires a consideration of both factual and legalcausation.Actual Bodily Harm The meaning ofactual bodily harmwas considered in:R v Miller[1954] 2 All ER 529Case summaryLynsky J: "Actual bodily harm includes any hurt or injury calculated to interfere with the health or comfort of the victim"

R vChan Fook[1994] 1 WLR 689Case summaryLJ Hobhouse:"The word "actual" indicates that the injury (although there is no need for it to be permanent) should not be so trivial as to be wholly insignificant."Bodily harmBodily harm can include psychiatric injury see:R vChan Fook[1994] 1 WLR 689Case summaryR vIreland[1997] 3 WLR 534Case summary

Bodily harm also includes the cutting off of hair:DPP v Smith[2006] EWHC 94Case summary

Mens reaof Actual Bodily HarmThemens reaof ABHis intention or reckless (subjective) as to the assault or battery. There is no requirement that the defendant intended or was reckless as to the injury inflicted: R v Roberts[1971] EWCA Crim 4Case summaryR vVenna[1975] 3 WLR 737 Case summary

R v Spratt[1990] 1 WLR 1073 Case summaryWounding and GBH S.20 & S.18 OAPA1861The offences ofwounding and GBHare found under two separate sections of theOffences Against the Person Act 1861.GBHmeaning grievous bodily harm.A conviction ofwoundingorGBH under S. 20represents thelesser offence which carries a maximum penalty of 5 years imprisonment.Wounding and GBH under S.18is a more serious offence and carries a maximum sentence of 25 years. There are common elements of the two offences. The main difference between the offences under s.18 and s.20 relate to themens rea. Also the offenceunder s.20 is triable-either-way, whereas the offence ofgrievous bodily harmunder s.18 isindictable.

S.20 OffencesAgainst thePerson Act1861S.20 OAPA 1861 provides:"whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm on any other person, either with or without a weapon or instrument, shall be guilty of a misdeamenour"Actus reusof thes.20 offence Unlawfully Wound or inflict GBH on another personUnlawfullySome wounding orGBH may be classed as lawful.This coversthose who are acting inself defence or prevention of crimeand in limited circumstances where the victim has consentedeg surgical interference and where the injury results from properly conducted games and sports. For more detailed review of the circumstances in which consent may operate see thelecture outlineon consent. Lawful chastisementR v Hopley(1860) 2 F&F 202(Case summary)or reasonable punishment of a child is not available to the offences of wounding or GBH (S.58Children Act 2004).WoundA woundexists where there is a break in thecontinuity of the skin:Moriarty v Brookes[1834] EWHC Exch J79Case summaryAn internal rupture of blood vessels will not constitute a wound:C (a minor) v Eisenhower[1984] QB 331 Case summaryGrievous Bodily harmGrievous bodily harm means really serious harm:DPP v Smith[1961] AC 290Case summaryIf the victim is particularly vulnerable, the jury is entitled to take this into account when assessing if the injury is really serious:R v Bollom[2004]2 Cr App R 6Case summaryThe question of whatamounts toreally serious harm is to be objectively assessed:R v Brown and Stratton[1997] EWCA Crim 2255Case summaryGBH includes psychiatric injury:

R vBurstow[1997] 3 WLR 534CasesummaryInflictThe use of the word inflict in s.20 has given rise to some difficulty. It has been held to include indirect application of force:R v Martin(1881) 8 QBD 54Case summaryOriginally the courts interpretedinflictto mean that there must be proof of an assault or battery:R v Clarence(1889) 22 QB 23Case summaryMore recentlyinflict was interpreted to mean the direct or indirect application of force:R v Wilson[1984] AC 242Case summaryIn the context of psychiatric injury, the word inflict simply means cause. There is no requirement of assault or battery or direct or indirect application of force:R vBurstow[1997] 3 WLR 534Case summaryMens reaof wounding or GBH under s.20The defendant must have theintention or be reckless as to the causing of some harm. There is no needfor the prosecution to establish that they intended or was reckless as to causing serious harm:

R vSavage[1991] 94 Cr App R 193Case summarySubjective recklessness applies (the defendant must foresee the risk of causing some harm):R v Parmenter[1991] 94 Cr App R 193Case summaryS.18 Offences Against the Person Act 1861S.18 provides:"Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause any grievous bodily harm to any person, with intent, to do some grievous bodily harm to any person, or with intent to resist or prevent the lawful apprehension or detainer of any person, shall be guilty of felony."Actus reusof the s.18 offence Unlawfully wound or cause GBH on any personSince the decision in Burstow there is little difference between in theactus reusunder s.20 and s.18. The one difference is that the offence under s.20 must be committed on another person whereas s.18 can be committed on any person and thus would cover those who intentionally wound or inflict GBH on themselves.Mens reaThe mens rea under s.18 requires either: Intention to cause GBH or Intention to resist or prevent the lawful detainer of any person. The law of murder Thelaw of murderis set out in common law. The legal definition ofmurderis'the unlawful killing of a human being in the Queen's peace, with malice aforethought'. Theactus reusof murderconsists of the unlawful killing of a human being in the Queen's peace. Themens reaof murderis malice aforethought, which has been interpretedby the courts as meaningintention to kill or intention to cause GBH. A murder conviction carries amandatory life sentence.The judge passing sentence can not pass a lesser sentence no matter how mitigating the circumstances might be. There exist three partial defences tomurderwhich mayreduce the conviction to voluntary manslaughter which carries a maximum sentence of life and thus allows the judge discretion on sentencing. These partial defences are contained in theHomicide Act 1957and consist ofdiminished responsibility,provocationand suicide pact. Theactus reusof murder Theactus reusof murder is the unlawful killing of a human being in the Queen's peace. Unlawful killing Unlawful killing can be committed by an act or an omission. Therefore the case law relating to omissions foundherewill also be relevant to the law of murder.All unlawful killings are result crimes and thuscausationmust also be established. Some killings may be classed as lawful. For example, killing in self-defence. Also when the death penalty was implemented, such state ordered executions would be classed aslawful. Soldiers and police may kill in thecourse of their dutiesbut will be liable for murder if they go beyond their duty or use excessive force: R vClegg[1995] 1 AC 482Case summary Also doctors may lawfully kill in limited circumstances: Administering pain relief see: Dr Bodkin Adams1957Case summary Withdrawal of treatment see: Airedale Hospital Trustees v Bland[1993] 2 WLR 316 Case summary The defence of necessity: Re A[2001] 2 WLR 480Case summary Human being The second element of theactus reusof murderrequires the victim to be a human being. This obviously excludes animals from the remit of murder but raises questions as to at what point does one become a human being and at what point does one cease to be a human being. A foetus is not classed as a human being and therefore a person who kills a foetus can not be charged with murder: A-G ref(No 3 of 1994)[1998] AC 245Case summary A foetus becomes a human being when it has been fully expelled from it mother and has an independent existence. A person ceases to be a human being when their brain stem ceases to be active irrespective of whether they are being kept aliveby artificial means: R v Malcherek and Steel[1981] 2 ALL ERCase summary R v Inglis[2011]1 WLR 1110Case summary Disability now matter how extreme does not prevent a person being a human being see R v Inglis above. In the Queen's Peace The third aspect of theactus reusof murderexcludes the killing of alien enemies in the time of war. Mens reaof murder Themens reaof murderis malice aforethought. However this term is misleading in that it suggests some sort of ill will and pre-planning. Malice aforethought has been interpreted in the courts as meaning intention to kill and intention to cause GBH. R v Vickers[1957] 2 QB 664Case summary R vCunningham[1982] AC 566Case summary Themens reaof murdercovers not only direct intent, but also extends to oblique intentwhere the current test established inR vWoollin(case summary)applies. See further the lecture onintention. Constructive manslaughter Constructive manslaughteris also referred to asunlawful act manslaughter.Constructive manslaughteris a form ofinvoluntary manslaughterin that an unlawful killing has taken place where the defendant lacks themens reaof murder. There are two types of involuntary manslaughter:constructive manslaughterexists where the defendant commits anunlawfuldangerousact which results in death;where the defendant commits alawfulact which results in death this may amount togross negligence manslaughter. Elements of the offence: The offence ofconstructive manslaughtercan be broken down into three elements: 1. There must be an unlawful act 2. The unlawful act must be dangerous 3. The unlawful dangerous act mustcausedeath

1. There must be an unlawful act Originally any unlawful act would suffice for constructive manslaughtereven if it was only againstcivil law: R v Fenton(1830) 1 Lew CC 179Case summary However, it was later established that only offences against criminal law would suffice: R v Franklin(1883) 15 Cox CC 163Case summary All elements of the unlawful act must be present. If there is no unlawful act, there can beno conviction for constructive manslaughter (although there may possibly be liability for gross negligence manslaughter): R v Lamb[1967] 2 QB 981Case summary R v Scarlett[1993] 98 Cr App 290Case summary R v Arobekieke[1988] Crim LR 314Case summary There must be an unlawful act, omissions will not suffice: R v Lowe[1973] QB 702Case summary The unlawful act need not be directed at the victim: R v Larkin(1942) 29 Cr App R 18Case summary R v Mitchell[1983] QB 741Case summary A-G Ref No 3 OF 1994[1998] AC 245Case summary The unlawful act need not be directed against a person: R v Goodfellow(1986) 83 Cr App R 23Case summary 2. The unlawful act must be dangerous The unlawful act must be dangerous, however, dangerous is not given its ordinary and natural meaning. The specific meaning of dangerous was given by Edmund Davies LJ inChurchas: "the unlawful act must be such as all sober and reasonable people would inevitably recognise must subject the other person to, at least, the risk of some harm resulting therefrom, albeit not serious harm." R vChurch[1965] 2 WLR 1220Case summary The test is thus objective, concerned with what a sober and reasonable person would regard as giving rise to some harm. This is assessed as if the reasonable person were present at the time of the unlawful actand observing. The reasonable person will thus have only the knowledge of an observer any special factors which would not be apparent to an observer will not be taken into account. Compare the cases: R v Dawson and others[1985] 81 Cr App R 150 Case summary R v Watson[1989] 2 All ER 865Case summary To amount to dangerous for these purposes the sober and reasonable person must recognise the act asinevitably resulting inphysical harm: R v Carey & Ors [2006] EWCA Crim 17Case summary Any knowledge of the defendant, including a mistaken belief, can not be imputed to the sober and reasonable person: R v Ball[1989] Crim LR 730Case summary 3. The unlawful dangerous act mustcausedeath This has been particularly problematic for the courts in relation to where a death occurs from taking drugs. The question arises as to whether those who supply such drugs can be liable for manslaughter. Where the defendant actuallyinjects the drug to another person resulting in death, the position is quite straight forward. The defendant's unlawful act is administering a noxious thing contrary to s.23 Offences Against the Person Act 1861 and this act causes death. The defendant is liable for manslaughter notwithstanding the fact that the victim consented to the injection. See: R vCato[1976] 1 WLR 110Case summary However, Lord Widgery CJ's obiter comments lead to confusion in the law. Lord Widgery stated had it not been possible to rely on the unlawful act of administering a noxious thing, the defendant would nevertheless be liable as he had committed the unlawful act of possession. The difficulty being that possession of drugs does not in itself cause death. InR vDalbyit was recognisedthat the possession orsupply of drugsdid not cause death: R v Dalby(1982) 74 Cr App R 348Case summary However, the case ofR vKennedyproved problematic for the courts. It was subject to two appeals to the Court of Appeal and an appeal to the House of Lords. It concerned the position ofa personwho had prepared a solution of heroin and handed it to the victim who then injected himself. The first appeal was unsuccessful: R v Kennedy[1999] Crim LR 65Case Summary His conviction was upheld on the grounds that he had assisted the unlawful act of the deceased in self-injecting. However, in the subsequent case ofR vDiasit was pointed out that it is not a crime to inject oneself: R vDias[2002] 2 Cr App R 5Case summary This point was followed inR vRichardswhere the conviction was quashed asit was based on the law as stated in Kennedy's first appeal: R vRichards[2002] EWCA Crim 3175Case summary This lead to Kennedy's further appeal to the Court of Appeal: R vKennedy[2005] 1 WLR 2159Case summary However, this was also unsuccessful.The court held, following the case ofR vRodgers,that the unlawful act was his assisting in the administration of the drug and thus amounted to an offence under s.23. RvRodgers[2003] 1 WLR 1374Case summary However on appeal to the Lords, the House affirmed the decision inR vDiasand held thatit is never appropriate to convict a person of constructive manslaughter, where he supplies a class A drug to a fully informed and responsible adult who then freely andvoluntarily self administers the drug. R vKennedy[2007] 3 WLR 612Case summary Mens reaof constructive manslaughter? At one time it was thought thatit must be shown that the defendanthad the intention to frighten or harm a personor could foresee the risk of harm. This was based on an obiter statement by Lord Denning ina civil case: Gray v Barr[1971] 2 QB 554Case summary However, in the following case it was established that the statement had no relevance in criminal case. DPP v Newbury[1977] AC 500Case summary Consequently it need only be established that the defendant had themens reaof the unlawful act committed. There is no requirement that the ofmens reain relation to the ensuing death.Gross negligence manslaughterGross negligence manslaughteris a form ofinvoluntary manslaughterwhere the defendant is ostensibly acting lawfully. Involuntary manslaughtermay arise wherethe defendant has caused death but neither intended to cause death nor intended to cause serious bodily harm and thus lacks themens reaof murder.Whereas constructive manslaughter exists where the defendant commits an unlawful act which results in death,gross negligence manslaughteris not dependant on demonstrating an unlawful act has been committed.Gross negligence manslaughtercan be said to apply where the defendant commits a lawful actin such a way as to render the actions criminal.Gross negligence manslaughteralso differs from constructive manslaughter in that it can be committed by omission.

Gross negligence manslaughter was originally set out in:R v Bateman19 Cr App R 8Case summaryThis was followed in:Andrews v DPP[1937] AC 576Case summaryThis was considered unsatisfactory as the test was circular in that the jury were being told in effect to convict of a crime if they thought a crime had been committed. Subsequently gross negligence manslaughter was largely replaced with reckless manslaughter:R v Lawrence[1982] AC 510Case summaryR v Seymour[1983] 2 AC 493Case summaryKong Cheuk Kwan v The Queen(1985) 82 Cr App R 18 Case summaryHowever, the House of LordsinAdomakoheld that the law as stated inR v Seymour[1983] 2 A.C. 493 should no longer apply since the underlying statutory provisions on which it rested have now been repealed by the Road Traffic Act 1991.RvAdomako[1994] 3 WLR 288Case summaryFollowingAdomako it was necessary for the prosecution to establish that the defendant:1. Owed aduty of care to the victim2. Was in breach of duty3. The breach of duty caused death4. The defendant's conductwasso bad in all the circumstances as to amount in the jury's opinion to a crime.The following case confirmed thatR vAdomakorequired no proof ofmens reaon behalf of the defendant:

A-G ref no 2 of 1999[2000] 2 Cr App R 207Case summaryThis was affirmed in the following case where it was ruled thatthe CPS were wrong to base a decisionnot to prosecute on the lack of subjective recklessness of theemployer:

R v DPP ex parte Jones[2000] IRLR 373 CasesummaryThe following case suggests a fifth ingredient toAdomakoof criminality or badness:Rowley v DPP[2003] EWHC 693Case summaryLord Mackay, inR vAdomako, made it clear that civil law concepts of duty of care should apply in deciding the criminal liability of a person for gross negligence manslaughter. This has proved problematicoutside the realm of medical negligence and driving cases. In particular, the question of whether a drug dealer owes a duty of care to one whom hehas supplied seems to be illogical although the courts have not ruled out the possibility:R v Khan & Khan[1998] Crim LR 830Case summaryAwoman who supplied drugs to her sister was held to owe a duty of care to summon help for herwhen shedisplayed symptoms of an overdose. The duty arosenot from her familial relationship, nor from her acceptance of dutybutthrough hersupplyingthe drugs and thuscreating a dangerous situation:R v Evans[2009] 2 Cr App R 10Case summaryIn addition it has been held that the defence ofex turpi causa,which operates in civil law to negate a duty of carewhere the victim is acting is acting inthe course of a joint criminal enterprise wheninjury is inflicted, has no application in criminal law:R vWacker [2002] EWCA Crim 1944Case summaryR v Willoughby[2004] EWCA Crim 3365Case summaryThe problem relating to the circularity of the test for gross negligence manslaughter remained ie the jury were to find the defendant liable of a crime if they thought his actions amounted to a crime. This was challenged as being in breach of Art 6 &7 of the European Convention of Human Rights. However, the Court of Appeal held that the test was sufficiently certain to comply with Convention rights:R v Misra & Srivastava[2005] 1 Cr App R 328Case summaryVoluntary Manslaughter- Diminished responsibilityDiminished responsibilityis one of three special defences which exist solely for the offence of murder. It is contained in theHomicide Act 1957as modified by theCoroners and Justice Act 2009.Where the defence ofdiminished responsibilityis successfully pleaded, it has the effect of reducing a murder conviction to manslaughter. The three special defences ofdiminished responsibility,loss of controland suicide pact differ from general defences in that they do not apply to all crimes and also the effect is to reduce criminal liability rather than to absolve the defendant from liability completely.Diminished responsibilityis set out ins.2 of the Homicide Act 1957asammended bys.52 of theCoroners and Justice Act 2009.To rely on the defence,the defendant must be able to demonstrate the following:1. An abnormality of mental functioning caused by a recognised medical condition.2. Which provides an explanation for the defendants acts or omissions in being party to the killing.3. Which substantially impaired his/her mental ability to either:a)Understand the nature of their conduct orb)Form a rational judgment orc)Exercise selfcontrol

1. Abnormality of the mental functioning caused by a recognised mental condition.Prior to the Coroners and Justice Act 2009, the Homicide Act 1957 referred to abnormality of the mind. The change of wording in this respect was simply to clarify the law and is not expected tomake any changes to the applicability of the defence. Thus the case law under the Homicide Act is still helpful in determining what may count as an abnormality of the mental functioning. The questionof whether the defendant is suffering from an abnormality of themental functioningis for the jury to decide after hearing medical evidence. The jury are not bound to follow medical opinion it is ultimately their decision as to whether the defence should succeed. A notorious example of the jury ignoring medical opinionwaspresent in thetrial of Peter Sutcliffe(the Yorkshireripper) where the medical opinion wasunanimousthat the defendant was a paranoid schizophrenic, yet the jury refused to allow him the defence.Abnormality of the mental functioningis assessed by reference to what a reasonable man would regard as abnormal. It has a wide meaning and encompasses the inability to exercise will power andcontrol.R v Byrne(1960) 2 Q.B. 396Case summarySome examples of what has been held to constitute an abnormality of the mind include: Jealousy (R v Miller1972,even unfounded jealousyR v Vinagre1979) Battered woman syndrome (R vHobson1997,R vAhluwalia1993) Pre-menstrual tension (R vSmith1982,R vReynolds1988) Epilepsy (R vCampbell1997) Chronic depression (R vSeers, R v Gittens1984)In each case the defendant must demonstrate that the characteristic was excessive when compared to that experienced by a reasonable person.2. The abnormality must provide an explanation for Ds act or omission in being party to the killing.This is an issue of causation - S. 1B Homicide Act 1957 states that an abnormality of the mental functioning provides an explanation for D's Conduct if it causes or is a significant contributory factor in causing D to carry out that conduct. This follows from the oldlaw underS.2 Homicide Act 1957which required the abnormality to be caused by an arrested or retarded development of the mind or any inherent causes or induced by disease or injury. Thiswasinterpreted by the courts as meaning thatthe abnormality must be caused by an insidesourceand that outside factors causing the abnormalitysuch as alcohol or drugs could not be taken into account unless the abnormality was as a result of the disease of alcoholism or drug addiction or long term damage caused by the intake of such intoxicants:R vTandy[1989] 1 WLR 350Case summaryR v Wood[2009] 1 WLR 496Case summaryR v Stewart[2009] 1 WLR 2507Case summaryThe same approach is applied where the defendant is intoxicated by prescription drugs:R v O'Connell1997 Crim LR 683Where there exists an abnormality of the mind in addition to intoxicants, thelegal position was stated inR vGittensand affirmed inR vDietschmann:R v Gittens(1984) 79 Cr App R 272Case summaryR vDietschmann[2003] 1 AC 1209Case summary

Acute voluntary intoxication (binge drinking) alone is not capable of founding the defence of voluntary intoxication:

R v Dowds[2012] EWCA Crim 281 Case summary

3.Which substantially impaired his/her mental abilityThe defendant must show that the abnormality of the mind must have substantially impaired his mental ability to either: Understand the nature of their conduct or Form a rational judgment or To exercise self controlThis is a question for the jury to decide after hearing medical evidence. It is not necessary to show a complete loss of control, however, any evidence of planning on the part of the defendant may be used to show the defendants mental ability was not impaired.R v Campbell[1997] 1 Cr App R 199Case summaryRaising diminished responsibility on appealIf the defendant did not raise the defence ofdiminished responsibilityat trial, the appeal courts are reluctant to admit fresh evidencerelating todiminished responsibility:R v Andrews[2003] EWCA Crim 2750Case summaryIn the case ofR vAhluwalia[1993] 96 Cr App. R. 133Case summaryLord Taylor CJ stated:

"Ordinarily, of course, any available defences should be advanced at trial. Accordingly, if medical evidence is available to support a plea of diminished responsibility, it should be adduced at the trial. It cannot be too strongly emphasised that this court would require much persuasion to allow such a defence to be raised for the first time here if the option had been exercised at the trial not to pursue it. Otherwise, as must be clear, defendants might be encouraged to run one defence at trial in the belief that if it fails, this court would allow a different defence to be raised and give the defendant, in effect, two opportunities to run different defences. Nothing could be further from the truth. Likewise, if there is no evidence to support diminished responsibility at the time of the trial, this court would view any wholly retrospective medical evidence obtained long after the trial with considerable scepticism.In deciding whether to admit fresh evidence the court must have regard to S. 23 of the Criminal Appeal 1968 whichprovides:"(1) For purposes of this Part of this Act the Court of Appeal may, if they think it necessary or expedient in the interests of justice --(c) receive any evidence which was not adduced in the proceedings from which the appeal lies.(2) The Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to --(a) whether the evidence appears to the Court to be capable of belief;(b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal;(c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and(d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings."The court is particularly reluctant to allow fresh evidenceif the decision not to raise the defence of diminished responsibility was made for tactical reasons as oppose to reasons relating to the capacity to instruct the defence:R v Erskine[2009] EWCA Crim 1425Case summaryR v Neaven[2006] EWCA Crim 955Case summaryR v Diamond[2008] EWCA Crim 923Case summaryR v Hendy[2006] EWCA Crim 819Case summaryR v Martin[2002] 2 WLR 1Case summaryThe courts are more willing to admit freshevidence relating to diminished responsibility where therehave been advances in medical opinion since the time of trial:R vAhluwalia[1993] 96 Cr App. R. 133Case summaryR v Hobson[1997] EWCA Crim 1317Case summaryR v Campbell[1997] 1 Cr App R 199Case summaryThe defence of Loss of Control - Voluntary manslaughterTheloss of control defencewas introduced bys.54 of the Coroners and Justice Act 2009and came into force in October 2010. Killings committed prior to this date continue to be governed by thedefence of provocation.The defence of loss of control is a partial defence that may reduce liability for murder to manslaughter. It does not operate to absolve the defendant ofliability completely.It is not a general defence and exists only for the offence of murder. The loss of control defence was introduced in response to concerns in relation to the defence of provocation. The defence of provocationproved problematic and was subjecttomuch consideration by the appeal courts. The appeal courts were not always consistent in the interpretation and application of the defence of provocation as set out in s.3 of the Homicide Act. The defence was also considered to have a gender bias in that it was too favourable to those who killed as a result of losing their temper (generally male defendants) but did not provide a tailored response to those who kill out of a fear of serious violence (often women in domestic violence). The extent to which the new legislation addresses these issues is a moot point. The new defence of loss of control is broadly similar to the defence of provocationin the requirements, however, it is far more restrictive in its application. The Ministry of Justice Impact Analysis of 2009 estimated that the changes would result in a further 10-20 murder rather than manslaughterconvictions per year at a cost of 4-8M in the prison and court systems.S.54 Coroners and Justice Act 2009

S.54(1) Aperson who kills or was party to a killing may be convicted of manslaughter rather than murder where there exists:

(a) a loss of self-control,(b) the loss of self-control had a qualifying trigger, and(c) a person of D's sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way to D.Burden of proofS.54 (5) -if sufficient evidence is adduced, the jury must assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not.1. Loss of self-control

There is no requirement that the loss of self-control be sudden(s. 54(2)). This represents a change from the law of provocation which required the loss of control to be sudden and temporary (R v Duffy[1949] 1 All ER 932Case summary) which was a seen as a significant barrier to victims of domestic violence.See,R vAhluwalia[1992] 4 All ER 889Case summary,R vThornton[1996] 1 WLR 1174Case summary. However, in each of those cases there was no loss of control, sudden or otherwise and thus the cases would have the same outcome under the new defence. The Law Commission had recommended that there should be no requirement of loss of control as this was the element of the defence of provocation that operated against women.By virtue ofs. 54(4),if D acted in a considered desire for revenge they can not rely on the defence. This upholds the principle seen in:R vIbrams & Gregory(1982) 74 Cr App R 15Case summary.2. Qualifying triggerUnder the old law of provocation virtually any act was capable of being used as evidence of provocation. This was considered problematic in that it was too wide.The provocative action did not have to be deliberate or aimed at the victim:R v Davies[1975] 1 QB 691Case summary. Even a baby crying was accepted as a provocative act (R vDoughty(1986) 83 Cr App R 319Case summary). The introduction of qualifying triggers have narrowed the ambit of the new defence quite dramatically.

The qualifying triggers are set out ins. 55 Coroners and Justice Act 2009.A qualifying trigger mayonlyrelate to:

S.55 (3)Where D's loss of self-control was attributable toD's fear of serious violencefrom V against D or another identified person. orS.55 (4)Where D's loss of self-control was attributable toa thing or things done or said(or both) which(a)constituted circumstances of an extremely grave character, and(b)caused D to have a justifiable sense of being seriously wronged.Limitations on qualify triggersDespite the restrictive wordingused to establish a qulaifying trigger,S. 55(6) Coroners and Justice Act 2009 provides two further limits as to what may be classed as a qualifying trigger:S.55(6)(a)The fact that a thing done or saidconstituted sexual infidelityis to be disregarded.S.55(6)(b)A person may not raise a qualifying triggerif they incited the thing done or said or the violence.Sexual infidelityThe limitation based on sexual infidelity represents a major change from the defence of provocation which was largely seen as an excuse for crimes of passion.This change is based on the view that in a civilised society there can be no excuse for killing due to infidelity. Whilst this sentiment is commendableits inclusion has received widespread criticism as to its workability in practice.This provisionhas already been subject to interpretation by the Court of Appeal:R v Clinton[2012] EWCA Crim 2Case summaryIncitementThe limitation based on incitement represents a move away from the law of provocation where selfinduced provocation could be relied upon:R v Johnson[1989] 1 WLR 740Case summary3. Degree of tolerance and self-restraintS.54(1)(c)requires that aperson of the defendant's sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of the defendant, might have reacted in the same or similar way.This is a question for the jury to decide. It replaces the reasonable man test which existed under the law of provocation which attracted widespread criticism and was subject to much conflicting interpretation in the courts culminating in the landmark case ofAttorney General for Jersey v Holley[2005] 3 WLR 29Case summary. Reference to sex and age represents the position with regards to provocation established inDPP v Camplin[1978] AC 705Case summary.Problems with the reasonable man test related to the characteristics which could be attributed to the reasonable man. S.54(1)(C) makes explicit reference to just age and sex however, characteristics may be relevant when assessing the circumstances of the defendant although unders.54(3)circumstances which relate to the defendant's general capacity to exercise tolerance and self-restraint are to be disregarded. According toR v Clinton[2012] EWCA Crim 2Case summary, sexual infidelity may be considered when looking at the circumstancesunder s.54(1)(c) in an appropriate case.

The defence of provocation required some degree of proportionality test in that the jury were required to assess the gravity of the provocation in deciding if a reasonable man would have done as the defendant did. The new defence of loss of control does not have such a balancing exercise. The gravity of the provocation, or trigger event, is assessed at stage two and must meet the specified thresholds of either fear ofseriousviolence (s.55(3),extremely graveorseriously wronged (s.55(4). There is no requirement that this is weighed against the conduct of the defendant. Also rather than the jury assessing whether the provocationwouldhave made a reasonable man do as the defendant did, the jury are required to consider if a relevant personmighthave reacted in the same or similar way. The third element of the defence, is thus perhaps more generous to defendants.The defence of consent in criminal lawThedefence of consentin criminal law may operate to defeat an element of theactus reusof a crime and thus render the action lawful as oppose to unlawful. For example theoffence ofbattery requires the application of 'unlawful' physical force, where thepersonconsentsto being touched the application of force is 'lawful'.Thedefence of consentdoes not apply to all crimes. Indeed it can never be used formurder. In relation totheft, the courts have held that an appropriation may take place notwithstanding theconsentof the owner of the property. SeeLawrencev MPC[1972] AC 626Case summary,DPP vGomez[1993] AC 442Case summary. However, the issue ofconsentmay demonstrate that the defendant is notdishonest.In some crimes,consentwill absolve the defendant ofcriminal liability. For example rape, assault and battery. In other crimes such asABH,GBH and woundinga restrictive approach is taken with regards toconsent.The defendant's belief inconsentis relevant to themens reaof crimes such as theft, criminal damageand rape. However, themens reaelement is not concerned with whether or not the victim in factconsented, but whether the defendant honestly believed the victimconsented. There is no requirement that the belief is reasonably held (DPP v Morgan[1976] AC 182Case summary).Effective consentIn order toconstitute valid consent absolving the defendant from criminal liability the consent must be: Positive GenuinePositiveConsent is positive, it is not a matter of the victim not objecting or saying no. Consent differs from submission:R vOlugboja[1982] QB 320Case summaryConsent may be express or implied:Collins v Wilcock[1984] 3 All ER 374Case summaryDonnelly v Jackman[1970] 1 All E.R. 987Case summaryGenuineThe consent must be genuine. This consists of two requirements:1. The person giving consent mustcomprehendthe nature of the act to whichthey are consenting2. The consent mustnot be vitiated by fraud1. Comprehend the nature of the actChildrenBurrell v Harmer[1967] Crim LR 169Case summaryWhere there is no statutory prohibition from children giving consent, they may nevertheless lack capacity to give consent if they are not capable of comprehending the nature of the act. The Gillick competence test and Fraser Guidelinesare used to establish whether a particular child is capable of giving consent for a particular action:Gillick v West Norfolk and WisbeckAHA[1986] AC 112Case summaryAdultsAdults may lack the mental capacity to appreciate the nature of what they are consenting to. There is a presumption of capacity under the Mental Capacity Act 2005. However, a person may be found to lack capacity if at the material time they are unable to make a decision in relation to the matter because of a temporary or permanent impairment or a disturbance in the functioning of the mind or brain.2. Consent vitiated by fraudFraud will only vitiate consent where it relates to either:i) The identity of the person orii)The nature and quality of the acti) The identity of the personFraud as to the identity of the person will vitiate consent:R vElbekkay[1995] Crim LR 163Case summaryIt must be the identity of the person, not their attributes:R v Richardson[1998] 2 Cr App 200 Case summaryFraud as to qualifications may relate to the nature and quality of the act and therefore vitiate consent.R vTabassum[2000] 2 Cr App R 328Case summaryii) The nature and quality of the actOriginally a restrictive approach was taken in relation fraud asto the nature and quality of the act:R v Clarence(1889) 22 QB 23Case summaryThe courts would only recognise that fraud vitiated consent in extreme cases:R v Flattery(1877) 2 QBD 410Case summaryR v Williams[1923] 1 KB 340Case summaryA more relaxed approach has been evidentin recent yearsR vTabassum[2000] 2 Cr App R 328Case summaryR vDica[2004] 3 ALL ER 593Case summaryR v Konzani [2005] EWCA Crim 706 Case summaryHowever, a restrictive approach still appears to be present in relation to rape cases:R vDica[2004] 3 ALL ER 593Case summaryR v Jheeta[2007] EWCA Crim 1699Case summaryR v Linekar[1995] 2 CR App R 49Case summaryConsent in Non-Fatal Offences Against the PersonAs a matter of publicpolicy, generally a person can not consent to being harmed. Thus if two peoplewillingly engage in a fist fight, their consent to being harmed (at a levelgreater than assault and battery)by their opponent will not be recognised in law. However, there are some exceptions to this as stated in:A-G ref no 6 of 1980[1981] QB 715Case SummaryExcluded categories where consent will be valid include:1. Properly conducted games and sportsR v Coney(1882) 8 QBD 534Case summaryHowever not where the aggressor acts outside the rules:R v Billinghurst[1978] Crim LR 553Case summary2. Reasonable surgical interferenceA medical professional that treats a patient without consent may incur criminal liability3. Cosmetic enhancements including tattoos, brandingand piercingsR v Wilson[1996] Crim LR 573Case summary4. Horseplay -consent may be impliedR v Jones[1987] Crim LR 123Case summaryR v Aitken[1992] 1 WLR 1006 Case summaryConsent to being harmed for sexual pleasure will not be valid:R vBrown[1993] 2 All ER 75Case summaryDefence of DuressThere exist twodefences of duress:duressby threatsandduress of circumstances.Duress of circumstancesis the most recent development and is closely linked toduress by threatsand thedefence of necessity. Duress by threat and duress of circumstances are largely governed by the same criteria thus many of the cases are authority for either type of duress.Where the defence of duress is successfully pleaded it absolves the defendant of all criminalliability. The rationale behind thedefence of duressis that whilst the defendant clearly has themens reaof the crime, in committing the crime, they are acting out of compulsion and are therefore not exercising freedom of choice. In this respect thedefence of duressdiffers from most defences which seek to demonstrate the defendant lacked themens reafor example,intoxication,insanityandmistake. Thedefence of duressalso differs fromthe defences ofself-defence and prevention of crimewhich perhaps provide a justification for committing a crime.Duress operates to providean excuse for criminal behaviour. In this respect thedefence of duresshas often been described as a concession to human frailty.Whilst thedefence of duressis a general defence, there are some limits on its application. In particular thedefence of duresscannot be raised in crimes of murder, attempted murder or by those who participate in killing. Recent case law suggests a narrowing in its application.Duress by threatDuress by threat was defined inA-G v Whelan[1993] IEHC 1 Case summaryas being available when the accused was told to commit an offence and was subject to:Threats of immediate death or serious personal violence so great as to overbear the ordinary powers of human resistance.It is for the jury to decide whether the threat was sufficiently serious to warrant the defence of duress which will be balanced against the seriousness of the offence. The elements of the defence were more recently stated by Lord Bingham in the House of Lords decision ofR v Hasan[2005] 2 WLR 709:R v Hasan[2005] 2 WLR 709Case summaryElements of the defence of duressby threat:Specified crimeImmediate threatThreat of death or serious injuryThreat of violence must be to the defendant or a person for whom he has responsibilityThreat must be so great as to overbear the ordinary powers of human resistance.Specified crimeThe threat must be accompanied by an order to commit a specified crime. It is not sufficient that the defendant has felt the need to commit a crime to meet a demand for money.R v Cole1994 Crim LR 582Case summaryThreat of immediate death or serious injuryThe immediacy requirement is not strictly applied:R v Hudson & Taylor[1971] 2 QB 202Case summarySee also (in relation to duress of circumstances):R v AbdulHussein[1999] Crim LR 570 Case summaryHowever, statements inR v Hasansuggest that the courts should be more restrictive particularly where there is opportunity of evasive action and or obtaining police protection:R v Hasan[2005] 2 WLR 709 Case summaryThreat of death or serious injuryThreats to reveal sensitive information alone are insufficient to raise the defence, but may be taken into account if accompanied by threats of death or serious personal violence:R v Valderamma-Vega[1985] Crim LR 220Case summaryPersons for whom the defendant has responsibilityThe threat of violence must be to the defendant or a person for whom he has responsibility or persons for whom the situation makes him responsible:R v Shayler[2001] EWCA Crim 1977 Case summaryThis includes threats against family members:R vMartin[1989] 88 Cr App R 343Case summaryPassengers in a car:R vConway[1989] QB 290 Case summaryWhilst threatenedsuicide of another may be sufficient (R vMartin[1989] 88 Cr App R 343Case summary) a person can not rely on their own suicidal tendency to constitute the threat of death:R v Rodger & Rose[1998] 1 CAR 143Case summaryThe threat must be so great as to overbear the ordinary powers of human resistance.The test established inR v Graham applies to determine whether the threat was so great as to overbear the ordinary powers of human resistance:R v Graham[1982] 1 WLR 294Case summaryThe elements of theGraham test:1.The defendant must have areasonable beliefin the circumstances;2.This belief must have lead the defendant to haveagood cause to feardeath or serious injury would result if he did not comply; and3.Asober person of reasonable firmness, sharing the characteristics of the defendant, might have acted as the defendant did.All three elements are objective in nature.The characteristics that may be taken into account were considered in:R v Bowen[1997] 1 WLR 372Case summaryR v Flatt[1996] Crim LR 576Case summaryLimits on the defenceThe defence of duress is not available:1. For crimes of murder, attempted murder or foran accessory to murder2. For crimes of treason3. Where the defendant voluntarily, with knowledge of its nature,joined a violent criminal gang4. Where the defendant voluntarily joined a terrorist organisation5. Where the defendant became indebted to drug dealers6. Where the defendant could reasonably have taken evasive actionMurder related offencesThe defence of duress is not available to murder:Abbott v The Queen1977 AC 755Case summaryOriginally the defence was allowed for an accessory to murder:DPP v NI v Lynch[1975] AC 653Case summaryHowever, this was overruled inHowe & Bannisterwhich also stated obiter that the defence of duress should not be available to attempted murder:

Howe & Bannister[1987] 2 WLR 568Case summaryThe obiter fromR v Howe & Bannisterwas followed by the Court of Appeal inR v Gottswhich held that the defence of duress was not available to attempted murder:R v Gotts[1992] 2 AC 412Case summaryVoluntarily joining a criminal organisationWhere the defendant voluntarily, with knowledge of its nature, joined a violent criminal gang they will be denied the defence:R v Sharp85 Cr App R 212 Case summaryThe defencemay be allowed where thecriminal organisation is not known to be violent:R v Shepherd(1988) 86 Cr App R 47Case summaryVoluntary joining a terrorist organisationA person who voluntarily joined a terrorist organisation will not be allowed the defence where they are subjected to threats:R v Fitzpatrick[1977] NILR 20Case summaryIndebtedness to drug dealersWhere the defendant became indebted to drug dealers and is subjected tothreats if they do not commit an offence, they are taken to have put themself in the position and the defence of duress is denied:R v Ali[1995] Crim LR 303Case summaryR v Flatt[1996] Crim LR 576Case summaryIt was considered that the defendant must foresee the type of offence that he may be coerced into committing:R v Baker and Ward[1999] 2 Cr App R 335Case summaryHowever, this point was overruled by the House of Lords inR v Hasan:R v Hasan[2005] 2 WLR 709Case summaryWhere the defendant could reasonably have taken evasive actionIf the defendant could reasonably have obtained police protection or acted in some way to avoid the crime they would be expected to take that action rather than commit the crime. The defence of duress is therefore denied in these situations. This matter was discussed in:

R v Hudson & Taylor[1971] 2 QB 202 Case summaryR v AbdulHussein[1999] Crim LR 570Case summary

R v Hasan[2005] 2 WLR 709 Case summary

Duress of circumstancesDuress of circumstances differs from duress by threat in that the circumstances dictate the crime rather than a person. It may well be a person that creates the circumstances, but there is no requirement that a person specifies that a crime must be committed. Although there must still be a sufficient nexus between the threat and the crime:R v Cole1994 Crim LR 582Case summary

The defence of duress of circumstances grew out of the inflexibility afforded in thedefence of necessity. It is often referred to as necessity by another name. It will often allow a defence where thedefence of necessitywould deny one. The defence of duress of circumstances came about largely as a mistake in the case ofR v Willerin which the defendant raised thedefence of necessity. The Court of Appeal allowed his appeal and stated that he should have used the defence of duress. However,he had not been told to commit a crime, the threat came from the circumstances:

R v Willer(1986) 83 Cr App R 225 Case summaryThis then set a precedent which was followed inR v Conwaywhere the Court of Appealnoted that there was no threat inR v Willerbutrecognised the existence of the new defence and named it duress of circumstances:R vConway[1989] QB 290Case summary

The later case ofRv Martinaffirmed the defence and held that it was governed by the same rules as duress by threat:R vMartin[1989] 88 Cr App R 343Case summaryR v Pommellestablished that it is available to all crimesexcept murder, attempted murder and those who assist murder:

Pommell[1995] 2 Cr App R 607 Case summary

The circumstances are judged as the defendant believed them to be:R v Cairns[1999] EWCA Crim 468 Case summaryOther examples of cases involvingduress of circumstances:R v AbdulHussein[1999] Crim LR 570Case summaryR v Shayler[2001] EWCA Crim 1977Case summaryR v Quayle[2005] 1 WLR 3642Case summaryDefence ofMistakeWhere the defendant acts under a mistaken belief of the circumstances they may be affordedthedefence of mistake.Where a defendant acts undersuch amistake,the mistakeprevents them forming themens reaof the crime and thusmistakeis not really a defenceas such, but relates to the absence of the elements of establishing liability. The defence of mistake was first recognised inR v Tolson(1889) 23 QBD 168 but has developed since then. Often thedefence of mistakeis complicated by being combined with other defences such as intoxication or self-defence (or both).Initially a defence would be allowed ifthe mistake was bothhonest and reasonably held:R v Tolson(1889) 23 QBD 168Case summaryA mistake as to law will not generally suffice, for thedefence of mistake,since ignorance of the law is no excuse (Ignorantia juris non excusat)R v Lee[2000] EWCA Crim 53Case summaryAlthough a mistake of civil law may be sufficient to find a defence of mistake:R v Smith[1974] QB 354Case summaryA mistake of fact will suffice provided the mistake was such as to prevent the defendant forming themens reaof the offence. Whilst initially the mistake was required to be both honest and reasonably held, inDPP v Morganthe House ofLords held that the mistake need only be honest. There was no requirement thatit was reasonable for the defendant to make the mistake:DPP v Morgan[1976] A.C. 182Case summaryThe defence of mistake in relation to public/private defenceThe defence of mistake may be raised in conjunctionwith self-defence andprevention of crime where for example the defendant mistakenlybelieved he was under attackor using reasonable force in the prevention of crime.The same principle applies that the mistake must be honest, but need not be reasonably held:R v Gladstone Williams(1984) 78 Cr App R 276Case summaryBeckford[1987] 3 WLR 611Case summaryImplications where the mistake is induced by intoxicationWhere the mistake is induced by voluntary intoxication, and the crime is one of basic intent, the defendant is not allowed the defence of mistake:R v Fotheringham(1989) 88 Cr App R 206Case summaryR vO'Grady[1987] QB 995Case summaryR v Hatton[2006] 1 Cr App R 16Case summaryIf, however, the crime is criminal damage and the defendant is relying on the special defence in S.5(2) Criminal Damage Act, a mistake induced by voluntary intoxication will not bar the application of the defence.Jaggard v Dickinson[1981] 1 QB 527Case summary