English criminal law
English criminal law concerns
Defences exist to crimes. A person who is accused may in certain circumstances plead they are
History
In 1980, a Committee of
In 1999, P J Richardson said that as the case for a moratorium on legislation in the field of criminal justice was becoming stronger and stronger, governments seemed ever more determined to bring forward more legislation.[5]
- Treason Act 1351 and Hanged, drawn and quartered. Petty treason and High treason in the United Kingdom
- Suppression of Heresy Act 1414 and John Wycliffe
- Carrier's Case (1473) YB Pasch 13 Edw. IV, f. 9., pl. 5, larceny
- Jesuits, etc. Act 1584
- Bushel’s Case(1670) 124 E.R. 1006 writ of habeas corpus
- Habeas Corpus Act 1679
- Transportation Act 1717
- Black Act 1723
- Jacobite rising of 1745 and Transportation Act 1746 and 1768
- Murder Act 1751
- King v Pear(1779) 168 Eng Rep 208, larceny by trick
- Gordon riots
- R v Shipley (1784) 4 Doug 73, seditious libel
- Burning of women in England and Treason Act 1790
- Bazeley's Case (1799) 2 East P.C. 571, establishing crime of embezzlement
- Debtors' prison
- Offences Against the Person Act 1828
- Bloody Code
- Forfeiture Act 1870
- Capital punishment in the United Kingdom
- C [2009] UKHL 42
- Clingham v RB Kensington and Chelsea [2002] UKHL 39
- Collins v DPP [2006] UKHL 40
- JTB [2009] UKHL 20
- R v K [2001] UKHL 41
- Norris v United States [2008] UKHL 16
- R (Purdy) v DPP [2009] UKHL 45
- R v Rahman [2008] UKHL 45
- GG plc [2008] UKHL 17
- R v Rimmington and Goldstein [2005] UKHL 63
- R v Saik [2006] UKHL 18
- R v Sheldrake [2004] UKHL 43
- Hashnan and Harrup (2000) 30 EHRR 241
Criminal law elements
The two basic elements of a crime are the act of doing that which is criminal, and the intention to carry it out. In Latin this is called the actus reus and the mens rea. In many crimes however, there is no necessity of showing a guilty mind, which is why the term "strict liability" is used.[6]
Actus reus
Actus reus is
“It would not be correct to say that every moral obligation involves a legal duty; but every legal duty is founded on a moral obligation.”[11]
Furthermore, one can become bound by a duty to take reasonable steps to correct a dangerous situation that one creates. In
If someone's act is to have any consequence legally, it must have in some way
Between the defendant's acts and the victim's harm, the chain of causation must be unbroken. It could be broken by the intervening act (novus actus interveniens) of a third party, the victim's own conduct,[18] or another unpredictable event. A mistake in medical treatment usually will not break the chain, unless the mistakes are in themselves "so potent in causing death."[19] For instance, if emergency medics dropped a stab victim on the way to the hospital and performed the wrong resuscitation, the attacker would not be absolved of the crime.[20]
The interplay between causation and criminal responsibility is notoriously difficult, and many outcomes are criticized for their harshness to the unwitting defendant and sidestepping of hospitals' or the victim's own liability. In R v Dear[21] a stab victim reopened his wounds while in the hospital and died. But despite this suicidal behavior, the attacker was still held fully responsible for murder.
- R v Holland (1841) 2 Mood. & R. 351 break in causal chain
- R v Instan (1893) 1 QB 450 duty of care, to not omit to help some dying of gangrene
- R v Smith (Thomas Joseph) [1959] QB, negligence of medics does not stop murder
- R v Hughes [2013] UKSC 56, driver who was not as fault for a crash could not be responsible for others deaths although he was prosecuted for driving without a licence or insurance
Mens rea
Mens rea is another
A lower threshold of mens rea is satisfied when a defendant recognizes that some act is dangerous but decides to commit it anyway. This is
The final requirement states that both an actus reus and a mens rea coincide. For instance, in
- R v Steane [1947] KB 997, defective intent to help the Nazis, by doing radio broadcasts, rather than help family
- Fagan v Metropolitan Police Commissioner [1969] 1 QB 439
- R v Parker [1977] 1 WLR 600
- R v Heard [2007] EWCA Crim 125
- R v Faulkner (1877) 13 Cox CC 550 mens rea for one act does not transfer to others
Strict liability
Not all crimes have a mens rea requirement, or the threshold of culpability required may be reduced. For example, it might be sufficient to show that a defendant acted negligently, rather than intentionally or recklessly. In offences of absolute liability, other than the prohibited act, it may not be necessary to show anything at all, even if the defendant would not normally be perceived to be at fault.
England and Wales has strict liability offences, which criminalize behavior without the need to show a criminal mens rea. Most strict liability offences are created by statute, and often they are the result of ambiguous drafting. They are usually regulatory in nature, where the result of breach could have particularly harmful results. An example is drunk driving.
- R v Woodrow (1846) 15 M&W 404 selling impure food, strict liability, overturning R v Dixon (1814) 3 M. & S. 11 that required mens rea
- R v Stephens (1866) LR 1 QB 702 strict liability for dumping refuse into a river, despite the defendant (ostensibly) having no knowledge
- Betts v Armstead (1888) LR 20 QBD 771
- Fitzpatrick v Kelly (1873) LR 8 QB 337 food safety
- Sweet v Parsley [1970] AC 132 mens rea needed for liability for cannibis being smoked on premises, statutory construction presumes a mens rea
- R v Lambert [2001] UKHL 37, cocaine possession claiming no knowledge
- Road Traffic Act 1988 s 3ZB
Corporate crime
Serious torts and fatal injuries occur as a result of actions by company employees, have increasingly been subject to criminal sanctions. All torts committed by employees in the course of employment will attribute liability to their company even if acting wholly outside authority, so long as there is some temporal and close connection to work.
Participatory and inchoate offences
- Encouraging or assisting crime - Part 2 of the Serious Crime Act 2007
- Offences against the Person Act 1861
- Aiding, abetting, counselling or procuring the commission of an offence
- Conspiracy, contrary to section 1(1) of the Criminal Law Act 1977
- Conspiracy to defraud
- Conspiracy to corrupt public morals
- Conspiracy to outrage public decency
- Attempt, contrary to section 1(1) of the Criminal Attempts Act 1981
Parts 1 to 3 of Schedule 3 to the Serious Crime Act 2007 list numerous statutory offences of assisting, encouraging, inciting, attempting or conspiring at the commission of various crimes.
- R v Shivpuri [1986] UKHL 2, reversing Anderton v Ryan [1985] AC 560 attempting the impossible
- R v Anderson [1986] AC 27
- R v Betts and Ridley (1930) 22 Cr App R, accessory to crime need not be present
- R v Clarkson (1971) 55 Cr. App. Rep. 445 for aiding and abetting, need evidence of actually encouraging a crime
- R v Gnango [2011] UKSC 59 joint enterprise
- R v Jogee [2016] UKSC 8 joint enterprise in a stabbing, need to act or encourage an offence
- R v Reed [1982] Crim. L.R. 819 suicide pact conspiracy
- R v Richards[1974] 1 QB 776 accomplice cannot be convicted of worse offence than the main actor even if he has the mens rea for one
- Inchoate
- Serious Crime Act 2007 ss 44-46
- Criminal Law Act 1977 ss 1-5
- Criminal Justice Act 1987s 12 and 1988 s 39
- Wai Yu-tsang v R [1992] 1 AC 269
- R v Stracusa (1990) 90 Cr App R 340
- R v Sadique [2013] EWCA Crim 1150
- Complicity
- R v Stringer (Ian) [2012] EWCA Crim 1396
- R v Rook [1993] Crim LR 698
- R v Giametto [1997] 9 Cr App R 1
- R v Daley [2015] EWCA Crim 1515
- Terrorism Act 2000 s 11
Criminal offences
Homicide
- R v Wallace (1931) 23 Cr App R 32 murder conviction overturned for being unreasonable
- R v Adams [1957] Crim LR 365
- R v Hancock [1985] UKHL 9, foresight needed for murder
- R v Dear [1996] Crim LR 595 chain of causation not broken for murder when wounds reopened by victim
- R v Woollin [1999] 1 AC 82
- R v Golds [2016] UKSC 61
- Road Traffic Act 1988 s 143
- Infanticide Act 1938 s 1
- Homicide Act 195 ss 2-4
- R v Adomoako
- R v Ahluwalia
- Attorney General's Reference (No 3 of 1994) [1998] AC 245
- R v Brennan [2014] EWCA Crim 2387
- R (Nicklinson) v Ministry of Justice [2014] UKSC 34
Sexual offences
- Sexual Offences Act 1956
- Sexual Offences Act 2003
- Protection from Harassment Act 1997 ss 1-4
- R v R [1991] UKHL 12 a husband can be convicted of raping wife
- R v Evans and McDonald [2012] EWCA Crim 2559 rape verdict overturned
- R v Bowden [2000] 2 All ER 418, child pornography
- R v Prince (1875) LR 2 CCR 154 responsibility for underage sex even though belief girl was 18, not 14
- DH Lawrence, Lady Chatterley's Lover (1960) and the Obscene Publications Act 1959
- R v Peacock [2012] conviction quashed under the Obscene Publications Act 1959 for hardcore pornography
- R v Oluboja [1982] QC 320
- R v McNalley [2013] EWCA Crim 1051
- R v Bree [2007] EWCA Crim 804
- R v B [2013] EWCA Crim 823
- R (F) v DPP [2013] EWHC 945
Other personal offences
- Offences Against the Person Act 1861
- R v Savage [1992] UKHL 1, mens rea for assault
- R v Coney (1882) 8 QBD 534, bare knuckle fight with consent still assault and actual bodily harm
- R v Brown [1993] UKHL 19 consent not a defence to sadomasochistic harm
- Offences against the Person Act 1861
- R v Constanza [1997] 2 Cr App Rep 492 meaning of assault, need not be immediate
- Serious Crime Act 2007
- Protection from Harassment Act 1997 ss 1-4
- R v Wilson (Alan) [1997] QC 47
- R v Colohan [2001] EWCA Crim 1251
- Mental Capacity Act 2005 ss 2-3
Theft and property crime
- Theft Act 1968 and Theft Act 1978
- Offences under the Explosive Substances Act 1883
- Offences under the Computer Misuse Act 1990
- Oxford v Moss (1979) 68 Cr App Rep 183, information could not be property
- R v Morris; Anderton v Burnside [1984] UKHL 1 meaning of "appropriates"
- R v Hinks [2000] UKHL 53 meaning of "appropriates"
- R v Lawrence v Metropolitan Police Commissioner [1972] AC 262, appropriation of property, taxi cab
- R v Marshall [1998] 2 Cr App R 282
- R v Hall [1973] 1 QB 126
- R v Hale [1979] Crim LR 596
- R v Bloxham [1983] AC 109
- R v Gomez [1993] AC 442
- R v Hayes [2015] EWCA Crim 1944
- Haughton v Smith [1975] AC 476, no crime of handling when goods not stolen
- Burglary and Blackmail
- R v Collins [1973] QB 100, entering as a trespasser for burglary
- R v Garwood [1987] Crim LR 476
- Unauthorised access to computer material
- Unauthorised impairment of a computer
- Impairing a computer to cause damage
Fraud
- Fraud Act 2006
- Ivey v Genting Casinos (UK) Ltd[2017] UKSC 67, Ivey was unable to claim £7.7m in winnings from the Genting Casinos because he had won by cheating, by ‘edge sorting’ with an accomplice, at a card game called Punto Banco. Supreme Court held the 'fact-finding tribunal' should establish a defendant's actual state of mind and then judge whether their conduct was honest or not according to the objective standards of ordinary decent people.
- Theft Act 1968 s 32 ‘cheating the Revenue’ is an offence
- R v Chaytor [2010] UKSC 52, false accounting for Parliamentary expenses, no privilege protection
- R v Ingram [2003] EWCA Crim, cheating by coughing to win Who wants to be a millionaire
- R v Kylsant[1931] falsifying Royal Mail trading prospectus
- R v Valujevs [2014] EWCA Crim 2888
- Forgery
- Offences under Part I of the Forgery and Counterfeiting Act 1981
- Falsification of pedigree, contrary to section 183(1)(b) of the Law of Property Act 1925
- Improper alteration of the registers, contrary to section 124 of the Land Registration Act 2002
- Offences under section 8 of the Non-Parochial Registers Act 1840
- Offences under sections 36 and 37 of the Forgery Act 1861
- Forgery of passport, contrary to section 36 of the Criminal Justice Act 1925
- Offences under sections 133 and 135 of the County Courts Act 1984
- Offences under section 13 of the
- Offences under section 6 of the Hallmarking Act 1973
- Offences under section 126 of the Mental Health Act 1983
- Offences under sections 121 and 122(6) of the Gun Barrel Proof Act 1868
Motor vehicle document offences:
- Offences under section 97AA and 99(5) of the Transport Act 1968
- Offences under section 65 of the Public Passenger Vehicles Act 1981
- Offences under section 115 of the Road Traffic Regulation Act 1984
- Offences under section 173 of the Road Traffic Act 1988
- Offences under regulations 11(1) to (3) of the Motor Vehicles (E.C. Type Approval) Regulations 1992 (S.I. 1992/3107) made under section 2(2) of the European Communities Act 1972
- Offences under section 44 of the Vehicles Excise and Registration Act 1994
- Offences under regulations 10(1) to (3) the Motor Cycle (E.C. Type Approval) Regulations 1995 (S.I. 1995/1531) made under section 2(2) of the European Communities Act 1972
- Offences under section 38 of the Goods Vehicles (Licensing of Operators) Act 1995
- Personation
- Personation of a juror
- Offences under section 90(1) of the Police Act 1996
- Offences under section 30(1) of the Commissioners for Revenue and Customs Act 2005
- Offences under section 34 of the Forgery Act 1861
- Offences under section 24 of the Family Law Reform Act 1969
- Offences under section 60 of the Representation of the People Act 1983
- Cheating (law)
- Offences under section 17 of the Gaming Act 1845
- Offences under section 1 of the Fraudulent Mediums Act 1951
Criminal damage
- Criminal Damage Act 1971
- R v Caldwell[1982] AC 341
- Morphitis v Salmon [1990] Crim LR 48, scratch to scaffolding pole was de minimis damage and not criminal
- Crime and Disorder Act 1998 s 30
- R v Steer [1987] UKHL
- R v Hill and Hall (1989) 89 Cr App R 74
Offences against the state
- High treason in the United Kingdom
- Misprision of treason
- Compounding treason
- Treason felony
- Attempting to injure or alarm the Sovereign, contrary to section 2 of the Treason Act 1842
- Contempt of the sovereign
- Trading with the enemy
- Offences under the Official Secrets Acts 1911 to 1989
- Offences under the Incitement to Disaffection Act 1934
- Causing disaffection, contrary to section 91 of the Police Act 1996
- Causing disaffection, contrary to section 6 of the Ministry of Defence Police Act 1987
- Incitement to sedition or disaffection or promoting industrial unrest, contrary to section 3 of the Aliens Restriction (Amendment) Act 1919
- Offences of procuring and assisting desertion under military law
- Offences relating to terrorism
- Offences of directing quasi military organisations and wearing uniforms for political purposes under the Public Order Act 1936
- Piracy iure gentium
- Piracy with violence, contrary to the Piracy Act 1837
- Offences under the Slave Trade Act 1824
- Offences under the Foreign Enlistment Act 1870
- Offences under the Immigration Act 1971
- Coinage offences under Part II of the Forgery and Counterfeiting Act 1981
- Offences relating to public stores under the Public Stores Act 1875
- Offences relating to military stores under military law
- Offences against postal and electronic communication services
- Misconduct in public office
- Refusal to execute public office
- Offences of selling public offices under the Sale of Offices Act 1551 and Sale of Offices Act 1809
- Purchasing the office of clerk of the peace or under-sheriff, contrary to section 27 of the Sheriffs Act 1887
- Cheating the public revenue
- Offences under the Customs and Excise Management Act 1979
- Tax evasion and money laundering offences
- Offences against military law in the United Kingdom
Other offences
- Offences under the Misuse of Drugs Act 1971, the Intoxicating Substances (Supply) Act 1985, the Licensing Act 2003, section 7 of the Children and Young Persons Act 1933 and other provisions relating to tobacco, and the Drug Trafficking Act 1994.
- Offences under the Psychoactive Substances Act 2016.
- Gun politics in the United Kingdom)
- Offences under section 1(1) of the Prevention of Crime Act 1953
- Offences under sections 139 and 139A of the Criminal Justice Act 1988
- Offences under the Knives Act 1997
- Offences under sections 75 to 77 of the Marriage Act 1949
- Offences under section 2 of the Ecclesiastical Courts Jurisdiction Act 1860
- Offences under section 7 of the Burial Laws Amendment Act 1880
- Offences under section 59 of the Cemeteries Clauses Act 1847
- Offences under articles 18 and 19 of the Local Authorities' Cemeteries Order 1977 (SI 1977/204)
- Doing an act tending and intended to pervert the course of public justice – a.k.a. perverting the course of justice, defeating the ends of justice, obstructing the administration of justice
- Concealing evidence, contrary to section 5(1) of the Criminal Law Act 1967
- criminal contempt
- Intimidation, contrary to section 51(1) of the Criminal Justice and Public Order Act 1994
- Taking or threatening to take revenge, contrary to section 51(2) of the Criminal Justice and Public Order Act 1994
- Perjury, contrary to section 1 of the Perjury Act 1911
- Perjury, contrary to section 6 of the Piracy Act 1850
- Offences under sections 2 to 4 of the Perjury Act 1911
- Making a false statutory declaration, contrary to section 5 of the Perjury Act 1911
- Offences under section 6 of the Perjury Act 1911
- Fabrication of false evidence
- Offences under section 89 of the Criminal Justice Act 1967
- Offences under 106 of the Magistrates' Courts Act 1980
- Offences under section 11(1) of the European Communities Act 1972
- Escape
- Permitting an escape
- Assisting a prisoner to escape, contrary to section 39 of the Prison Act 1952
- Breach of prison/breaking prison
- Rescue/rescuing a prisoner in custody
- Harbouring an escaped prisoner, contrary to section 22(2) of the Prison Act 1952
- Taking part in a prison mutiny, contrary to section 1(1) of the Prison Security Act 1992
- Offences under section 128 of the Mental Health Act 1983
- Causing a wasteful employment of the police, contrary to section 5(2) of the Criminal Law Act 1967
- Administering an unlawful oath, contrary to section 13 of the Statutory Declarations Act 1835
- Offences under the Public Order Act 1986
- Offences under section 31 of the Crime and Disorder Act 1998
- Offences under Part V of the Criminal Justice and Public Order Act 1994
- Offences under Part II of the Criminal Law Act 1977
- Offences under the Protection from Eviction Act 1977
- Bomb hoaxes, contrary to section 51 of the Criminal Law Act 1977
- Offences against public morals and public policy
- Offences against the Person Act 1861
- Offences under section 2(1) of the Indecency)
- Offences under section 2(2) of the Theatres Act 1968
- Certain offences under the Postal Services Act 2000
- Offences under section 1(1) of the Indecent Displays (Control) Act 1981
- Offences under section 1(1) of the Protection of Children Act 1978
- Offences under section 160 of the Criminal Justice Act 1988
- Offences under section 170 of the Customs and Excise Management Act 1979 consisting of importation in breach of the prohibition under section 42 of the Customs Consolidation Act 1876
- Offences under the Bribery Act 2010
- Cruelty to animals
- Environmental crime
- Traffic offences
- Mayhem
- Kidnapping
- False imprisonment
- Cheating the public revenue
- High treason
- Misprision of treason
- Compounding treason
- Misconduct in public office
- Refusal to execute public office
- Public nuisance
- Outraging public decency
- Conspiracy to defraud
- Conspiracy to corrupt public morals or to outrage public decency
- Common assault aka assault
- Battery
- Assault with intent to rob
Criminal defences
The defences which are available to any given offence depend on the wording of the
- Connolly v DPP [2007] EWHC 237 (Admin) no Human Rights Act 1998 defence for sending graphic pictures of abortions, considered malicious
- Director of Public Prosecutions v Camplin [1978] UKHL 2, provocation, now Coroners and Justice Act 2009 loss of control
- R v Oye [2013] EWCA Crim 1725
- R v Quayle [2005] EWCA Crim 1415
- R v Martin (Anthony) [2001] EWCA Crim 2245
- R v Coley [2013] EWCA Crim 223
- Re A [2001] 2 WLR 480
- R v Hitchens [2011] EWCA Crim 1626
- R v Howe [1987] AC 417
- R v Ray (Steven)' [2017] EWCA Crim 1391
Partial defences to murder
There are two main partial defences that reduce murder to manslaughter.
If one succeeds in being declared "not guilty by reason of insanity" then the result is going to an asylum, a clearly inadequate result for somebody suffering from occasional epileptic fits, and many conditions unrecognized by nineteenth century medicine. The law has therefore been reformed in many ways.[34] One important reform, introduced in England and Wales by statute is the diminished responsibility defence. The requirements are usually more lax, for instance, being "an abnormality of mind" which "substantially impair[s] mental responsibility for his acts and omission in doing or being a party to the killing."[35]
Loss of control may be pleaded under sections 54 and 55 of the Coroners and Justice Act 2009.
Infanticide now operates as a defence to both murder and manslaughter. See the Infanticide Act 1938 as amended by the Coroners and Justice Act 2009.
Insanity
Insanity is a deranged state of mind, and consequently no defence to strict liability crimes, where mens rea not is a requirement. An old case which lays down typical rules on insanity is
"Defect of reason" means much more than, for instance, absent mindedness making a lady walk from a supermarket without paying for a jar of mincemeat.[37] A "disease of the mind" includes not just brain diseases, but any impairment "permanent or transient and intermittent" so long as it is not externally caused (e.g. by drugs) and it has some effect on one's mind.[38] So epilepsy can count, as can an artery problem causing temporary loss of consciousness (and a man to attack his wife with a hammer).[39] Diabetes may cause temporary "insanity"[40] and even sleep walking has been deemed "insane".[41] "Not knowing the nature or wrongness of an act" is the final threshold which confirms insanity as related to the act in question. In R v Windle[42] a man helped his wife commit suicide by giving her a hundred aspirin. He was in fact mentally ill, but as he recognized what he did and that it was wrong by saying to police "I suppose they will hang me for this", he was found not insane and guilty of murder.[43]
Automatism
Automatism is a state where the
Automatism can also be self-induced, particularly by taking medical treatment. because he expected the Valium to calm him down, and this was its normal effect.
- Hill v Baxter [1958] 1 QB 277, dangerous driving, when automatism possible
Intoxication
Technically, intoxication is not a defence, but negates the mens rea for
Sometimes intoxicated people make mistakes, as in R v Lipman[54] where the defendant took LSD, thought his girlfriend was a snake and strangled her. Here, intoxication operated as a defence because Mr Lipman was mistaken in his specific intent of killing a snake. But intoxication does not negate the basic intent crime of manslaughter, with his "reckless course of conduct" in taking drugs. Lastly, while a mistake about a person or the actual action is acceptable, a mistake about how much force to use to defend oneself is not. Using a sledgehammer to fend off an "attacker" after 20 pints of beer is disproportionate.[55]
- R v O'Grady [1987] QB 995 voluntary intoxication
Mistake
- Williams (Gladstone) [1987] 3 All ER 411, mistake of fact depends on reasonableness
Self defence
In all instances one may only use reasonable, and not excessive, force in
Duress
One who is "under duress" is forced into something. Duress can be a defence for all crimes, except murder, attempted murder, being an accessory to murder[58] and treason involving the death of the Sovereign. In R v Howe it was held that to allow the defence of duress as a defence to murder would, in the words of Lord Hailsham, withdraw the protection of the criminal law from the innocent victim and cast the cloak of its protection upon the coward and the poltroon - ordinary people ought to be prepared to give up their lives to the person making the threat in preference to killing an innocent.[59] R v Gotts, in a similar fashion, disallowed the defence of duress for someone charged with attempted murder, as the Lords could not see a reason why the defence should be open to an attempted murderer when it was not open to a murderer.[60]
In order to prove duress, it must be shown that the defendant was induced by threats of death or serious physical injury to either himself or his family that he reasonably believed would be carried out and that also that "a sober person of reasonable firmness, sharing the characteristics of the accused" would have responded in the same way.[61] Examples of someone's characteristics that might be relevant are age, gender, pregnancy, physical disability, mental illness, sexuality, but not IQ.[62]
Using duress as a defence is limited in a number of ways. The accused must not have foregone some safe avenue of escape.[63] The duress must have been an order to do something specific, so that one cannot be threatened with harm to repay money and then choose to rob a bank to repay it, because that choice implies free will.[64] Intoxication is irrelevant to duress, but one cannot also say one is mistaken about duress, when intoxicated. Then a number of cases turn on the choice to join a gang, and inevitably do bad things. The rule is that where one is aware of the gang's nature and puts himself in a position where he could be threatened, duress is not a defence - joining a gang that carries out armed robberies probably precludes any duress defence[65] but joining a gang that is not violent at the time of joining may not.[66]
- R v Hasan [2005] UKHL 22, duress, threat of serious injury
Necessity
Whilst a duress defence relates to the situation where a person commits an offense to avoid death or serious injury to himself or another when threatened by a third party, the defence of necessity related to the situation where a person commits an offense to avoid harm which would ensue from circumstances in which he/she or another are placed. Duress operates as an excuse but necessity operates as a justification, rendering the defendant's conduct lawful. Necessity is a defence that argues "I desperately needed to do X, because consequence Y would have been really bad." Logically, this is identical to the concept of "duress of circumstance", where the situation rather than a person is the threat.[67] The common elements are (1) an act is done to prevent a greater evil (2) the evil must be directed to the defendant or someone for who he is responsible (3) the act must have been a proportionate response. But only necessity is a potential defence for murder.
The defence of necessity was first tested in the 19th century English case of R v Dudley and Stephens.[68] The Mignotte, sailing from Southampton to Sydney, sank. Three crew members and a cabin boy were stranded on a raft. They were starving and the cabin boy close to death. Driven to extreme hunger, the crew killed and ate the cabin boy. The crew survived and were rescued, but put on trial for murder. They argued it was necessary to kill the cabin boy to preserve their own lives. Lord Coleridge, expressing immense disapproval, ruled, "to preserve one's life is generally speaking a duty, but it may be the plainest and the highest duty to sacrifice it." The men were sentenced to hang, but public opinion, especially among seafarers, was outraged and overwhelmingly supportive of the crew's right to preserve their own lives. In the end, the Crown commuted their sentences to six months.
Since then, in the 1970s, in several road traffic cases, although obiter dicta, it has been stated that there is a defence of necessity. In Johnson v Phillips [1975], Justice Wein stated that a police constable would be entitled to direct motorists to disobey road traffic regulations if this was reasonably necessary for the protection of life or property. In a later case, Woods v Richards,[69] Justice Eveleigh stated that the defence of necessity depended on the degree of emergency which existed or the alternative danger to be averted. In DPP v Harris[70] a police officer, charged with driving without due care and attention through a red traffic light contrary to s 3 of the Road Traffic Act 1988, and having collided with another vehicle containing armed robbers whilst pursuing that vehicle, was not allowed to advance the defence of necessity. Again in Chicon v DPP [1994] the defence of necessity was not allowed in a case of a pit bull terrier dog being kept in a public place without a muzzle - the owner had removed the muzzle to allow the dog to drink. But in the case of In re F (Mental Patient Sterilization),[71] the defence of necessity was allowed. In the case of R v Bournewood Community and Mental Health NHS Trust,[72] the defence of necessity (in the case of Tort law) was recognized and applied by the House of Lords to justify the informal detention and treatment of a mentally incompetent person who had become a danger to himself. This approach was subsequently found to be a violation of Article 5 of the European Convention of Human Rights by the European Court of Human Rights in HL v United Kingdom. Subsequent to this decision, individuals who lack capacity must be deprived of their liberty in accordance with the Deprivation of Liberty Safeguards (an amendment to the Mental Capacity Act 2005), not under the common law doctrine of necessity.
But more recently, duress of circumstance
Procedure and sentencing
In the United Kingdom, a criminal case against Mr Smith is styled in case citation as R v Smith, referring to the crown acting as the prosecuting party. R is short for Rex or Regina, that is, the King or Queen, and the v stands for "versus".
- Woolmington v DPP [1935] UKHL 1, presumption of innocence
- Rice v Connolly [1966] 2 QB 414, right to refuse to answer questions if not under arrest
- Judges' Rules (1912), adverse inferences not to be drawn from silence before arrest. The rule was already long established at common law in relation to silence during trial; both rules were weakened by the Criminal Justice and Public Order Act 1994
- R v Waterfield [1963] 3 All E.R. 659 police power to stop and detain, an assault charge against an officer was invalid as the officer was not acting in execution of duty
- R v Cheshire [1991] 1 WLR 844 role of the jury in finding causation
- Connelly v DPP [1964] AC 1254 no double jeopardy, but can be tried a second time for a different offence. The rule against double jeopardy was weakened by the Criminal Justice Act 2003
- R v Wang [2005] 1 WLR 661 judge cannot direct a jury to find a guilty verdict
- R v Davis [2008] UKHL 36, witness anonymity
- R v Incedal and Rarmoul-Bouhadjar(2014) terrorism trial not to be held in secret
- Hearsay in English law
There is a Sentencing Council. This power is now created by section 163 of the Criminal Justice Act 2003.
It was formerly created by each of the following provisions in turn:
- The Criminal Justice Act 1948, section 13. Only applied to felony.
- The Criminal Law Act 1967, section 7(3). Only applied where no enactment specified a maximum fine.
- The Powers of Criminal Courts Act 1973, section 30(1). Amended by the Crime (Sentences) Act 1997, section 55 and Schedule 4, paragraph 8(3). The Criminal Law Act 1977, Schedule 13 repealed "limiting the amount of the amount of the fine that may be imposed or" and see section 32(1) (removed all statutory limits on fines imposed on convictions on indictment). Repealed in part by the Criminal Justice Act 1991, Schedule 13.
- The Powers of Criminal Courts (Sentencing) Act 2000, section 127.
A general power of Crown Court to impose a sentence of imprisonment on conviction on indictment is created by section 77 of the Powers of Criminal Courts (Sentencing) Act 2000
It was formerly created by each of the following provisions in turn:
- The Criminal Law Act 1967, section 7(1)
- The Powers of Criminal Courts Act 1973, section 18(1)
International criminal law
- International law
- Nuremberg Tribunal
- International Criminal Court
- International Criminal Tribunal for the Former Yugoslavia
- International Criminal Tribunal for Rwanda
- Rome Statute
Criminal law theory
See also
- Crown Prosecution Service
- List of English criminal offences
- English tort law
- Scottish criminal law
- Northern Irish criminal law
- Lurking doubt
Notes
- ^ Breaking the Rules (1980) at page 53
- ^ The Law Commission, Criminal Law:A Criminal Code for England and Wales (Law Com 177), Volume 1, paragraph 3.3 at page 12
- ^ Glazebrook, P R. How Old Did You Think She Was? [2001] Cambridge Law Journal 26 at 30
- ^ Ormerod, David. Smith and Hogan's Criminal Law. Thirteenth Edition. Oxford University Press. 2011. pp. vii and 3.
- ^ Archbold Criminal Pleading, Evidence and Practice, 1999, preface, page vii
- ^ "Mens Rea in English Law". IPSA LOQUITUR. Retrieved 23 October 2019.
- ^ R v Pittwood (1902) 19 TLR 37 - a railway worker who omitted to shut the crossing gates, convicted of manslaughter when someone was run over by a train
- ^ e.g. the partner in Gibbons who was not a blood parent, but had assumed a duty of care
- ^ R v Stone and Dobinson [1977] QB 354, where an ill tended sister named Fanny couldn't leave bed, was not cared for at all and literally rotted in her own filth. This is gross negligence manslaughter.
- ^ R v Dytham [1979] QB 722, where a police man on duty just stood and watched three men kick another to death
- ^ R v Instan (1893) 1 QB 450, where a bedridden aunt, ostensibly in her niece's care developed gangrene, a "slur on justice" were it not punishable.
- ^ R v Miller [1983] 1 All ER 978
- ^ see also, R v Santana-Bermudez (2003) where a thug with a needle failed to tell a policewoman searching his pockets that he had one
- Airedale NHS Trust v Bland[1993] 1 All ER 821
- ^ e.g. R v Pagett [1983] Crim LR 393, where 'but for' the defendant using his pregnant girlfriend for a human shield from police fire, she would not have died. Note, Pagget's conduct foreseeably procured the heavy police response.
- ^ R v Kimsey [1996] Crim LR 35, where 2 girls were racing their cars dangerously and crashed. One died, but the other was found slightly at fault for her death and convicted.
- ^ e.g. R v Blaue [1975] where a Jehovah's witness (who refuse blood transfusions on religious grounds) was stabbed and without accepting life saving treatment died.
- ^ e.g. R v Williams [1992] where a hitchhiker who jumped from a car and died, apparently because the driver tried to steal his wallet, was a "daft" intervening act. cf R v Roberts [1971] Crim LR 27, where a girl jumped from a speeding car to avoid sexual advances and was injured and R v Majoram [2000] Crim LR 372 where thugs kicked in the victims door scared him to jumping from the window. These actions were foreseeable, creating liability for injuries.
- ^ per Beldam LJ, R v Cheshire [1991] 3 All ER 670; see also, R v Jordan [1956] 40 Cr App R 152, where a stab victim recovering well in hospital was given an antibiotic. The victim was allergic, but he was given it the next day too, and died. The hospital's actions intervened and absolved the defendant.
- ^ R v Smith [1959] 2 QB 35, the stab was still an "operating" and "substantial" cause of death.
- ^ R v Dear [1996] Crim LR 595
- R v Woolin [1998] 4 All ER 103
- ^ overturning R v Nedrick [1986] 1 WLR 1025, whose guidelines for the jury were to be certain "[1] that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant's actions and [2] that the defendant appreciated that such was the case." Here the defendant poured paraffin through the letter box owned by a woman he didn't like and lit it. A child died in the fire. He was convicted of manslaughter.
- ^ R v Matthews and Alleyne [2003] EWCA Crim 192
- ^ cf R v Cunningham [1957] 2 All ER 863, where the defendant did not realize, and was not liable; also R v G and Another [2003] UKHL 50
- ^ previously in the U.K. under Metropolitan Police Commissioner v Caldwell [1981] 1 All ER 961
- ^ R v Latimer (1886) 17 QBD 359; though for an entirely different offense, e.g. breaking a window, one cannot transfer malice, see R v Pembliton (1874) LR 2 CCR 119
- ^ R v Church [1966] 1 QB 59
- ^ see also, Fagan v Metropolitan Police Commissioner [1968] 3 All ER 442, where angry Mr Fagan wouldn't take his car off a policeman's foot
- ^ e.g. Lister v Hesley Hall Ltd [2001] UKHL 22; see also R Stevens, 'Vicarious Liability or Vicarious Action' (2007) 123 Law Quarterly Review 30; Middleton v Folwer (1699) 1 Salk 282 and Ackworth v Kempe (1778) 1 Dougl 40
- ^ Lord Haldane Lennard's Carrying Co Ltd v Asiatic Petroleum Co Ltd [1915] AC 705; see also, Bolton v Graham & Sons Limited, per Lord Denning, "A company may in many ways be likened to a human body. It has a brain and nerve centre which controls what it does. It also has hands which hold the tools and act in accordance with directions from the centre... (the) directors and managers represent the directing mind and will of the company and control what it does. The state of mind of these managers is the state of mind of the company and is treated by the law as such."
- Tesco Supermarkets v Nattrass[1972] AC 153
- ^ See Williams v Natural Life Health Foods Ltd [1998] 1 WLR 830
- ^ e.g. in the U.K. Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, giving the judge discretion to impose hospitalization, guardianship, supervision and treatment or discharge.
- ^ The Homicide Act 1957, section 2(1)
- M'Naghten's case (1843) 10 C & F 200
- ^ R v Clarke [1972] 1 All ER 219, caused by diabetes and depression, but the lady pleaded guilty because she did not want to defend herself as insane. Her conviction was later quashed.
- ^ R v Sullivan [1984] AC 156, on epilepsy
- ^ R v Kemp [1957] 1 QB 399
- ^ R v Hennessy [1989] 2 All ER 9; though see R v Quick [1973] QB 910 and the automatism defence.
- ^ R v Burgess [1991] 2 All ER 769 (on sleepwalking)
- ^ R v Windle [1952] 2 QB 826
- ^ Mr Windle was not hanged!
- Bratty v Attorney-General for Northern Ireland[1963] AC 386
- ^ R v T [1990] Crim LR 256
- ^ see Kay v Butterworth (1945) 61 TLR 452
- ^ Attorney-General's Reference (No. 2 of 1992) [1993] 4 All ER 683
- ^ R v Bailey [1983] 2 All ER 503, a diabetic who did not eat enough after taking his dose of insulin hit someone with an iron bar. He was still convicted because automatism did not exist on the facts.
- ^ R v Hardie [1984] 1 WLR 64
- ^ per Lord Birkenhead, DPP v Beard [1920] AC 479
- ^ DPP v Majewski 1977 AC 433, where M was drunk and drugged and attacked people in a pub. He had no defence to assault occasioning actual bodily harm.
- ^ R v Gallagher [1963] AC 349
- ^ R v Kingston [1994] 3 All ER 353
- ^ R v Lipman [1970] 1 QB 152
- ^ see R v Hatton [2005] All ER (D) 230
- ^ R v Clegg [1995] 1 All ER 334
- ^ R v Martin [2002]
- ^ cf DPP for Northern Ireland v Lynch [1975] 1 All ER 913, the old English rule whereby duress was available for a secondary party to murder; see now R v Howe [1987] 1 AC 417, where the defendant helped torture, sexually abuse and strangling. Being threatened into helping was no defence.
- ^ R v Howe [1987] AC 417, 432
- ^ R v Gotts [1992] 2 AC 412
- ^ R v Graham [1982] 1 WLR 294, 296
- ^ R v Bowen [1997] 1 WLR 372
- ^ R v Gill [1963], where someone told to steal a lorry could have raised the alarm; see also R v Hudson and Taylor [1971] where two teenage girls were scared into perjuring, and not convicted because their age was relevant and police protection not always seen to be safe.
- R v Cole[1994]
- ^ R v Sharp [1987]
- ^ R v Shepherd [1987]
- Lord Woolf, R v Shayler[2002] 2 All ER 477
- ^ R v Dudley and Stephens [1884] 14 QBD 273 DC
- ^ Woods v Richards [1977]
- ^ DPP v Harris [1995]
- ^ In re F (Mental Patient Sterilization) [1990]
- ^ R v Bournewood Community and Mental Health NHS Trust [1998]
- ^ e.g. R v Cairns [1999] EWCA Crim 468 where a perceived threat of men running at car (when they wanted to help) was held acceptable as duress of circumstance, when one man was run over.
- Re A (Conjoined Twins)[2000] 4 All ER 961
References
- Farmer, Lindsay (2000). "Reconstructing the English Codification Debate: The Criminal Law Commissioners, 1833-45". Law and History Review. 18 (2): 397–426. doi:10.1017/S0738248000012219. Archived from the originalon 11 August 2007.
- Fletcher, George P. (1998). Basic Concepts of Criminal Law. Oxford University Press. ISBN 0-19-512170-8.
- Fletcher, George P. (2000). Rethinking Criminal Law. Oxford University Press. ISBN 0-19-513695-0.
- Gorr, Michael J.; Sterling Harwood, eds. (1992). Controversies in Criminal Law. Westview Press.
- Gross, Hyman (2005). A Theory of Criminal Justice (reissue ed.). Oxford University Press. ISBN 0-19-502349-8.
- Hall, Jerome (1960). General Principles of Criminal Law. Lexis Law Pub. ISBN 0-672-80035-7.
- Hart, H.L.A. (1968). Punishment and Responsibility. Oxford University Press. ISBN 0-19-825181-5.
- Smith, K. J. M. (1998). Lawyers, Legislators and Theorists: Developments in English Criminal Jurisprudence, 1800-1957. Clarendon Press. ISBN 0-19-825723-6.
- van den Haag, Ernest (1978). Punishing Criminals: Concerning a Very Old and Painful Question. Basic Books. ISBN 0-8191-8172-2.
- Ormerod, David (2005). Smith and Hogan: Criminal Law. Oxford University Press. ISBN 0-406-97730-5.
External links
- Directgov Crime and justice (Directgov, England and Wales)