OCR A2 Law revision

Murder: Common law offence, “The unlawful killing of a reasonable person in being and under the Kings/Queens peace with malice aforethought, express or implied” Punishable for murder in any country, provided the murderer is a british citizen, If someone is arrested for murder in Spain, they can be tried in England - providing they are a british citizen - Venclovas 2013 Used to be a “year and day” rule: Death must occur within a year and one day of the attack to be liable (Year and a Day Rule Act 1996) - now abolished Actus reus of murder: Defendant killed, a reasonable creature in being, under the queen’s peace, killing was unlawful, Defendant killed: can be any act/omission but MUST be cause of death of V - Gibbins and Proctor, Reasonable creature in being: “human being” - Foetuses and brain-dead patients. Foetuses: Cannot be charged for murder - “Existence independent of the mother” - Enoch 1833. Expelled from her body: Poulton 1832: have an independent circulation, Umbilical cord need not to have been cut and does not need to have taken its first breath - Attorney-General's Reference (no.3 of 1994) 1997. Brain dead: Doctors can switch off life support machines without being liable for homicide, Steel, Malcherek Under the Queen’s Peace: Protects soldiers/armed forces from being liable for murder whilst in battle - Blackman 2014, Smith 1959 - wasn’t under QP because it wasn’t on the battlefield , Clegg 1995 Killing was unlawful: Killing must be lawful - if it’s self defence, defence of another or prevention of crime, and the defendant used “reasonable force” then the killing is not unlawful. - Re A 2000. Defence: in deciding whether the force used was reasonable,the fact that the defendant had only done what he honestly instinctively thought was necessary in a moment of unexpected anguish is strong evidence that action taken was reasonable, must be judged on the facts as he believed them to be - Beckford 1988, Criminal Justice and Immigration Act 2008 Householder: Crime and Courts Act 2013 has amended S.76 of the Criminal Justice and Immigration Act 2008 to give a wider defence to householder where an intruder enters their property - “grossly disproportionate” To be a householder case: The force must be used by the defendant while in or partly in a dwelling, Defendant must not be a trespasser, Defendant must have believed the victim to be a trespasser - Martin 2002 If excessive force is used, the case will fail, Forces that justify the defendant's actions: Defences of self-defence, defence of another or prevention of a crime. The force must be reasonable, Personality disorder - affects the defendant’s perception of the situation cannot be taken into account, Amount of force must be “reasonable” - not excessive force must be used. Mens rea for murder is “malice aforethought, express or implied” 2 types of intentions, either of which can be used to prove the defendant is guilty: 1) Express malice: Intention to kill, 2) implied malice: intention to cause GBH Vickers 1957 Cunningham 1981 GBH - DPP v Smith 1961 - “grievous bodily harm” has the natural meaning of “really serious harm” Intention to injure a fetus - Attorney-General's Reference (no.3 of 1994) 1997 - not possible for a defendant to have the mens rea to kill or seriously injure a fetus because it doesn't have a separate existence from the mother. Foresight of consequences: Main rule - FoC is NOT intention, only evidence from which intention may be inferred (Maloney 1985),(Nedrick 1986) (Woollin 1998), 2006 Law Reform Commission published “Murder, Manslaughter and Infanticide” - set out existing problems with murder law: 1) the law has changed it-by-bit in individual cases and is not coherent, 2) the defendant can be convicted of murder even though he only intended serious harm, 3) no defence is available if excessive force used in self-defence, 4) defence of duress is not available, 5) mandatory life sentence and government's sentencing guidelines do not allow sufficient differentiation in sentencing to cover the wide variety of levels of blameworthiness as murder currently stands. The law commission proposed that murder can be divided into two offences 1) first degree murder and 2) second degree murder, 2005; proposed two models of intention: 1)definition: the defendant acts intentionally with respect to a consequence if he acts to 1)bring it about or 2) knowing it will be a VC to occur. 2) codification of Woollin 2006: second codification of Woollin 2008: Government issues a consultation paper “Murder, Manslaughter and infanticide: Proposals for reform of the law MP 19/08” - Rejected the idea of two offences Definition?: Draft Criminal Code 1989 Clause 54 (1). “A person is guilty of murder if he causes the death of another a) intending to cause death; or b) intending to cause serious personal harm and being aware that he may cause death” Under the present law if someone carries out euthanasia then they are guilty of murder even if the victim had begged them to kill them. Inqlis 2010. The only consolation the court could have given was a shorter initial term, as she was unlikely to be a danger to the public. (contrast Inqlis with Bland) There is a law against helping people to commit suicide, DPP is obliged by S.2(1) of the Prosecution of Offences Act 1985 to issue a code for the CP’s giving guidance on general principles to be used when deciding whether the defendant has committed an offence of not. R (Applc. Of Purdy) v DPP 2009. DPP’s guidance: stressed that they had to apply the Code for crown prosecutors, include a test of whether it was in the public interests to prosecute, each case to be considered on its own facts and merits,the policy also listed factors which tended to be in favour of the prosecution and factors against prosecution. ESSAY POINTS: The law has changed bit-by-bit in individual cases and is not coherent: meaning of intention, s.8 of the criminal justice act 1967 tried to make it clear, the main problem was the foresight of consequences, Wollin V Maloney, can’t be sure what was in the defendant's mind at the time, Matthews/Re A/Alleyne - though Woollin is codified it still isn’t in line with the criminal justice act 1967. The serious harm rule: The jury don’t know how to decide what serious harm is, if the defendant didn’t know murder could be a result he is still guilty or intending harm the same?, the present law is too wide - Parliament never intended killing to lead to a murder sentence unless the defendant had required mens rea. No defence where excessive force is used: Life sentence vs. an acquittal is very difficult to judge where to draw the line of excessive force when such a big difference in outcome, Clegg/Martin, these do not look at the blameworthiness of the defendant. Duress cannot be used as a defence: the law commission have proposed it be a full defence to murder however, how would the defendant prove that? The jury would have to find that the defendant acted as an ordinary person would in the circumstances.

VOLUNTARY MANSLAUGHTER: There are three special defences to the offence of murder, if the defendant can prove one of these defences, then they will only be guilty of voluntary manslaughter 1) Diminished responsibility: Homicide Act 1957 and amended by S.52 of Coroners and Justice Act 2009 2) Loss of control: Coroners and Justice Act 2009 3) Suicide pacts: Homicide Act 1957 Loss of control: New defence, Introduced by s.54 and s.55 of the CJA 2009,it replaces the common law defence of provocation - abolished by the s.56(1) of the 2009 act (Clinton - sexual infidelity on its own would not be a qualifying figure) 5.54 CJA 2009 - “D is not to be c D must have lost self-control Must have been a qualifying trigger Person of the same sex and age would have reacted in the same way as the defendant in the same circumstances D must provide sufficient evidence of the loss of control defence. The job of the prosecution is to disprove it, beyond reasonable doubt (5.54(5)) The evidence must be sufficient that a judge could put it to a jury and and they could be reasonably expected to conclude, if properly directed, that the defence might apply Jewell (2014), the defendant had driven to the victim's house and shot him twice, at point blank range. Rafferty LJ said the crime “Bore every hallmark of a pre-planned, cold-blooded execution.” Withdrawn by the judge as no sufficient evidence for the loss of control defence. S.54(1) - the defendant must be proved to have lost self-control when carrying out the act. S.54(2) - the loss does not have to be sudden Ahluwalia (1992): “Women who have been subjected over a period to violent treatment may react to the final act or words by...a ‘slow burn’ reaction rather than by an immediate loss of self-control” Ibrams and Gregory (1981): set up a trap Thornton (1992): Provoked by husband All three cases failed to provide a defence of provocation Duffy (1949) Dawes (2013): Lord Judge Qualifying trigger: The act sets out qualifying triggers - S.55: Trigger 1 - a fear of serious violence against the defendant of another identified person Trigger 2 - a thing, or things done or said (or both) which; a) constituted circumstances of an extremely grave character, b) caused the defendant a justifiable sense of being seriously wronged May also be a combination of both A and B Trigger 1 - fear of violence- S.55 (3): Previous law did not allow loss of control through fear of violence, as seen in Martin (Anthony) The defendant does not have to fear violence by the victim, it could be by another person, however that other person has to be identified - cannot be a general fear, HOWEVER, if the defendant has caused that violence he cannot rely on it, Dawes (2013), Ward (2012), Trigger 2 - a thing, or things done/said (both) - S.55 (4): If the defendant wishes to rely on this trigger there are two things which must be proved under S.55 (4): Constituted circumstances of “extremely grave character” AND Caused the defendant to have a justifiable sense of being seriously wronged These tests did not exist under the old law of provocation - the new law is narrower, Comparison of the old and new law: Doughty (1986) - under PROVOCATION Zebedee (2012) - under LOSS OF CONTROL LJ Judge in Clinton (2012) - “the defendant cannot invite the jury to acquit him of murder on the grounds of loss of control….the questions whether the circumstances were extremely grave and whether the defendant’s sense of grievance was justifiable...of the requirements in S.55(4)(a) and (b)” Combination of triggers: Humphreys (1995) Dawes (2013), Excluded matters: Where the defendant inflicts violence himself, Sexual infidelity - S.55 (6)(c) Clinton (2012) House of Lords wanted (6)(c) removed but backed down after pressure from commons Removal of sexual infidelity = very controversial Ministry of Justice 2008 - “it is quite unacceptable for the defendant who has killed an unlawful partner to seek blame from the victim for what occurred. We want to make it absolutely clear that sexual infidelity on the part of the victim can NEVER justify reducing a murder charge to manslaughter” Desire for revenge - Ibrams and Gregory Baillie (1995) “Cumulative provocation”?? Under the old law there was a doctrine, known as “cumulative provocation” - jury could take into account anything said or done over an extended period of time - Humphreys (1995) The 2009 act makes no explicit reference to this doctrine - but it doesn’t rule it out either, The question arose in Dawe (2013) Pearson (1992) Level of self-control - “normal person test”: “A person of the defendant’s age, sex, with a normal degree of tolerance and self-restraint and in the circumstances of the defendant, might have reacted in the same or in a similar way to the defendant” - S.54(1)(c) Under the old law - Camplin (1978) A-G for Jersey v Holley (2005) Level of self-control: Circumstances of the defendant: Although only age and sex of the defendant can be taken into account, there are other circumstances that can be taken into consideration in deciding whether a “normal” person might have reacted in a similar way to the defendant in those circumstances Gregson (2006) If the case of Gregson were to occur under the new law, these circumstances would not be allowed to be considered if they were ONLY relevant to the defendant's capacity for tolerance and self-restraint Hill (2008) Voluntary intoxication: Asmelash (2013) Would have reacted in the same way as the defendant: Van Dongen (2005) - this case falls under the old law, the concepts remain the same, Sufficient Evidence: S.54(5) 2009 - “on a charge of murder, if sufficient evidence is adduced to raise an issue with respect to the defence…the jury must assume that the defence is satisfied unless the prosecution proves beyond all reasonable doubt that it is not” S.54(6) CJA 2009 - “sufficient evidence is adduced to raise an issue with respect to the defence if evidence is adduced on which, in the opinion of the trial judge, a jury, properly directed, could reasonably conclude that the defence might apply” Reform: Coroners and Justice Act 2009 abolished the old defence of provocation due to many problems with the law, Provocation was a common law offence - created a LONG time ago Allowing the “reasonable man test” - but how far do we let this go? Morhall - Glue Sniffing, Law commission have recommended removing the loss of self-control criteria completely due to it not covering women in abusive relationships - some abused women will therefore not be able to claim this defence? Removal of sexual infidelity? However, this situation is likely to make you lose self-control, Changes from CJA: Confusion - what is “sudden and immediate loss of control”? - what about battered women cases? New law is very complex, lots of different stages to fulfill? Burden of proof remains on the defendant - could be a contravention of human rights? Reliance on medical evidence - could be tricky for juries? Debates as to what characteristics might count as relevant?

Involuntary manslaughter: Any form of unlawful killing with NO proof of malice aforethought, The defendant has no intention to kill or cause serious harm, Three types: Unlawful act manslaughter, Gross negligence manslaughter, Reckless manslaughter. The following elements must exist: The defendant must commit an unlawful act, The act must be dangerous, The defendant must have intended to commit the unlawful act, The act must have caused death. Unlawful act: The defendant must commit a criminal offence the causes the victim's death. Franklin (1883): threw a large box into brighton sea and hit a swimmer killing them - civil unlawful act may not sacrifice, Lamb (1967): playing with a gun,pointed at each other and weren’t scared, accidently shot his friend - not an unlawful act Jennings (1999): the defendant walked along the street with a knife uncovered - no intention to cause harm Assault: Lamb/Larkin/MalletBattery: Church/MitchellCriminal Damage: DPP v Newbury and JonesArson: Goodfellow/WilloughbyTheft: WillettRobbery: DawsonBurglary: WatsonThe criminal act could be any of the following: Administering a noxious substances, Affray: Corey and others (2006), Cruelty to a person under 16: Gay (2006), Endangering road users: Meeking (2012) Though the crime must be an unlawful act, it does not have to be against the person and doesn’t have to be a serious crime. The unlawful act must be an ACT and therefore cannot be by omission: Lowe (1973)Dangerous act: Church (1966) Ball (1989) Larkin (1943) - Humphries J “where the act is unlawful, then if at the same time it is a dangerous act, likely to injure another person, and quite inadvertently he causes the death of that person by that act, then he is guilty of manslaughter” Mitchell (1983) The jury is entitled to ascribe to the bystander any pre-existing knowledge the defendant has about the victim including any he acquires during the commission of the offence, Must cause PHYSICAL HARM - fear and apprehension alone are not sufficient. Watson (1989) - Lord Lane: “the defendant during the course of the unlawful act, must have become aware of the victims frailty and approximate age”, Carey and others (2006) “Burglary of itself is not a dangerous crime, a particular burglary may be dangerous because of the circumstances surrounding its commission” - LJ Tracey. Bristow and others (2013) Aimed at property: Goodfellow (1986) Unlawful act: Some harm It is not necessary for the sober and reasonable man to foresee the particular type of harm that the victim suffers - sufficient that they would foresee some harm JM and SM (2012) Causes the victim's death: If there is an intervening act then the defendant cannot be liable for manslaughter if the chain of causation is broken - causes problems in drug cases, In many cases it has been agreed by the courts that there is no break in causation - Mitchell/Goodfellow, HOWEVER, there are several cases which have caused problems for the courts in deciding whether the defendant's acts did actually case the victim's death, Cato (1976) - no issue as the defendant had actually injected the victim, the problem arose where the defendant supplied it to the victim but the victim injects on their own. Dalby (1982) Kennedy (2007) - LEADING CASE IN THIS AREA, The situation involving drug dealers is therefore now: Where the defendant injects the victim and the victim dies, the defendant may be liable and where the victim's hands are over the drugs and the victim self-injects then the defendant is NOT liable Dias (2002) Mens Rea: The defendant intends to commit the unlawful act: The defendant must have the mens rea for the unlawful act, but does not necessary for the defendant to realise the act is unlawful or dangerous, Newbury and Jones (1976)

Gross negligence manslaughter:For there to be gross negligence manslaughter the following elements must be present: Existence of a duty of care, Breach of that duty (negligently) which causes death, The negligence must be ‘gross’ justifying criminal conviction (jury decision) Adomako (1994)Duty of care: Well known concept in civil law but less so in criminal, Certain circumstances there will be a duty of care in criminal law: EG. a doctor and a patient (Adomako) In Adomako, Lord Mackay said the ordinary principles of negligence in the civil law applied - these principles come from the civil case of Donoghue and Stevenson (1932): “must take responsible care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour...persons who are so directly and closely affected by my act that i ought reasonably to have them in my contemplation a being so affected when am directing my mind to the acts or omissions which are called into question” Singh (1999) Litchfield (1998) In Singh and Litchfield there was a contractual duty however, there does not have to be a contractual duty for a duty of care to arise, Wacker (2002) The immigrants would be party to an illegal act and therefore the defendant would have not been guilty There has also been held to be a duty of care where the defendant has created a state of affairs which has become life-threatening (Evans 2009), Breach of duty causing death: Once a duty has been established it must be proved that the defendant was in breach of his duty and that the breach caused the victim's death, In civil law, the defendant is judged against the standard of the reasonable competent person performing the activity involved EG. if the defendant is driving he must reach the standard of the reasonably competent driver Negligence was gross: The fact that the defendant has been negligent is not enough to convict him of gross negligence, Negligence must be “gross” Bateman (1925) Andrews v DPP (1937) Stone and Dobinson (1977) The house of lords in Adomako approve the Bateman test and stressed that the matter of gross negligence was one for the jury Had to decide whether having regard to risk of death involved. The defendant's conduct was so bad to amount to a criminal act or omission. Must consider seriousness of the breach in all the circumstances. Lord Mackay “consider the extent to which the defendant’s conduct departed from the proper standard of care incumbent upon him, involving as it must have done a risk of death to the patient, was such that it should be judged as criminal” Gross negligence: Case law was contradictory on whether there needed to be a risk of harm or a risk of death Adomako: Health and welfare, Stone and Dobinson: Health and welfare, Bateman: Disregard for life and safety of others, RESOLVED IN: Misra and another, Misra and another (2004) After the decision in Adomako it was thought that reckless manslaughter no longer existed however, Lidar (2000) Though the defendant was convicted on the grounds of recklessness, he could equally have been convicted of gross negligence manslaughter. All road users owe each other a duty of care, Reform: Final report “Murder, Manslaughter and Infanticide” Nov 2006 Also proposed two new definitions of intention; “the defendant’s acts intentionally with respect to a consequence if he acts to 1) bring it about or 2) knowing it will be virtually certain to occur OR: Codification of the Woolin decision “Murder, Manslaughter, Infanticide” - Three tier structure of homicide: First degree murder, second degree murder and manslaughter, First degree: intent to kill or do serious harm where the defendant was aware of the risk Second degree: intent ti kill but partial defence, intent for serious injury but not aware of serious risk of death, aware conduct posed a risk of death and had intent to cause some injury or risk of injury. The second part of manslaughter would replace unlawful act manslaughter as criminal act manslaughter, but would be a subjective test so essentially more fair, In 1996 the law commission proposed two categories involving negligence - reckless killing and killing by gross carelessness, In 2006 they amended this recommendation stating there should be one gross negligence manslaughter where a person by his or her conduct causes death of another, a risk that conduct will cause death would be obvious to a reasonable person in his or her position, he or she is capable of appreciating that risk at the time and conduct falls far below what can reasonably be expected in the circumstances The prosecution would have to prove the defendant was capable of appreciating the risk at the time - takes some of the unfairness away. Problems with reckless manslaughter: The law commission recommended the abolition of reckless manslaughter as they felt it was too like gross negligence manslaughter, However, they felt that the worst cases of reckless manslaughter could be included in second-degree murder, but less serious could be gross negligence EG. Lidar - would be difficult to state that weren’t aware conduct would kill someone.

Insanity - The defences of insanity and automatism insure that defendants who lack full mental capacity are treated fairly. General defences Available to all crimes requiring mens rea, No defence to strict liability, Rarely used, Burden of proof is on the defence, Verdict: “Not guilty by reason of insanity” Used to be a defence to all offences until… Dpp v H (1997) - Held no defence to strict liability, Must have evidence from at least two mental experts in court, The rules on insanity as a defence are based on the M’Naghten Rules 1843: The defendant suffered extreme paranoia. He thought he was being persecuted by the Tories, so tried to kill and M.P, Sir Robert Peel, instead killing his secretary. Because of his mental state, found not guilty of murder. He was sent to a mental hospital instead - Public outcry lead to the house of lords stating rules on insanity - “In all cases every man is presumed to be sane and to possess a sufficient degree of reason to be responsible for his crimes” House of Lords issued this definition: “The defendant must be labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or if he did know it,that he did not know he was doing what was wrong” Can be broken into three elements: A defect of reason, Which must be a result of a disease of the mind, Causing the defendant not to know the nature and quality of his act or not to know he was doing was wrong, The defendant’s powers of reasoning are impaired, If capable of reasoning, just not done it, then no defence. Clarke (1972) - the defendant went into a supermarket and placed three things in her bag including a tin of mincemeat. Charged with theft, said she could not be guilty of theft as she lacked the mens rea as she hadn’t realised she had taken the items. She claimed it was absent-mindedness due to diabetes and depression. - the court of appeal disagreed with the trial judge who allowed a plea of insanity. Defect of reason did not cover confusion or absent-mindedness. Legal term, not a medical one. Can be a mental or physical disease as long as it affects the mind. Kemp (1956) - The defendant was suffering hardening of the arteries causing a problem with blood supply to the brain, which caused moments of temporary loss of consciousness. During a blackout he hit his wife over the head with a hammer causing GBH. At trial it was found that disease of the mind also cover, but was not limited to, the brain. The defendant tried to claim it was a physical disease and therefore not insanity, but the court disagreed. Sullivan (1984) - The defendant had suffered epilepsy since childhood. Known to have fts and show aggression to those trying to help him during a fit. He injured an 80 year old man during a visit to a neighbours flat. - The house of lords ruled that the source of the disease was irrelevant. It could be organic (as in epilepsy) or functional and did not matter whether it was permanent, transient or intermittent so long as it existed as the time the defendant did the act. Disease of the mind: The disease can be of any part of the body so long as it has an effect on the mind. Hennessy (1989) - The defendant is diabetic. He had not taken his insulin for three days. Seen getting into a car that has been reported stolen. Charged. The defendant said he had no recollection of taking or driving the car. Court help that the defence of insanity was most appropriate because the diabetes was affecting his mind as well. Hennessy can be contrasted with the case of Quick (1983) Quick(1983) - The defendant had taken his insulin and forgotten to eat afterwards causing low blood sugar. During this time he assaulted the victim and was charged. He said he could not remember what he had done. Judge ruled it was insanity, at which point the defendant pleaded guilty. - The court of appeal quashed his conviction stating that the defendant’s lack of awareness was due to his insulin overdose,not his diabetes. This was an external factor and not a disease of the mind. When it comes to diabetes...the defendant will only be given the defence of insanity where he is suffering from hyperglycaemia and NOT hypoglycaemia. According to the diabetes UK website almost 4 million people suffer diabetes,with almost 550,000 people not even knowing. Sleep-Walking: Burgess (1991) - The defendant and his girlfriend had been watching TV. They fell asleep and in his sleep the defendant attacked her. There was no external cause for the sleepwalking,therefore it had to be an internal cause of the sleepwalking (confirmed by a Dr at trial) The defendant was therefore not guilty by way of insanity. If the sleep walking is due to an external cause, then the defence would be automatism, Dissociation? PTSD T (1990) - The defendant raped three days prior to carrying out a robbery and causing ABH. Diagnosed as having PTSD and suffering a dissociated state during the commission of the offence. Court help this could only hold a plea of automatism and NOT insanity. Voluntary intoxication: Cannot be used as a defence of insanity - alcohol/drugs is an external substance: Coley (2013) - The defendant (17) is a frequent cannabis user. Before bed he had watched a violent video game. In his sleep he went next door and attacked his neighbour and his wife calling out for his mother. It was thought that he could be having a psychotic episode as a result of the cannabis and the video game. - Held no defence of insanity as the cannabis was an external factor. Previous case can be compared to Harris (2013) Harris (2013) - The defendant was previously a heavy drinker. He had stopped drinking a few days before. He then said he could hear voices telling him to burn down his house which potentially endangered people in the house next door. It was held that he was suffering alcohol psychosis - alcohol induced hallucinations,which was a mental disorder,and therefore internal. Nature and quality - physical character of the act, The defendant may not know the nature and quality of his act because…” Because he is in a state of unconsciousness or impaired consciousness, He is conscious but due to his mental condition he does not understand or know what he is doing. Oye (2013) - The police were called to an area where the defendant was behaving strangely. They threw cutlery at the police, when as the station they were drinking out f the toilet and punched a woman police officer, breaking her jaw. - Held that he believed the police had domestic faces and were agents of evil spirits. Medical evidence showed he was suffering a psychotic episode and had no idea what he was doing / that it was wrong. - NOT GUILTY by insanity. If the defendant knows nature and quality of his acts but does not know it is wrong (legally not morally) then he can still use insanity. Windle (1952) - The defendant's wife constantly spoke about suicide. One day the defendant killed her by giving her 100 aspirins. Gave himself up by saying “I suppose they will hang me for this”. Though he was suffering mental illness these words illustrated that he knew what he was doing. Johnson (2007) - The defendant forced his way into a neighbours flat and stabbed him. He was charged with wounding with intent. At his trial two psychiatrists gave evidence that he was suffering paranoid schizophrenia and hallucinations. They agreed the defendant knew his actions were against the law, however one said he did not know it was wrong in the “moral sense”. The court followed their decision in Windle - wrong was in the legal sense, not moral. The special verdict: “Not guilty by reason of insanity”, Until 1991 this verdict meant the judge had to send the defendant to a mental hospital, regardless of the cause of the insanity. This position was changed by the ‘criminal procedure (insanity and unfitness to plead) Act 1991’ Extended the judge's options, can now impose: Hospital order - with/without restrictions, Supervision order, Absolute discharge, Definition comes from 1843 - medicine has significantly advanced since then, especially with regard to mental disorders. People who know what they are doing and that it is wrong, but cannot help themselves cannot use this defence? Huge overlap with automatism - if found innocent under automatism then an acquittal, but insanity - no. Problems with the law? Windle/ - someone suffering a mental illness and who does not know their act is morally wrong, has no defence. Social stigma of the word - insanity Proof? Jury: Ordinary people,no medical knowledge. Different verdicts each time. Reform proposals: Have been several proposals for reform, 1953 Royal Commission on Capital Punishment suggested M’Naghten rules should cover the defendant’s who are “incapable of preventing themselves” Then brought in the defence of DR instead of the above. 1975 Butler Committee suggested that it should instead be called “not guilty on evidence of mental disorder” 1989 Law Commission draft criminal code - the defendant should not be guilty on evidence of severe mental handicap or disorder 2013 Discussion paper - law commission set out some proposals: 1) Abolition of current insanity defence,2) New defence: “not criminally responsible by reason of a recognised mental condition” Recognised mental condition would be an issue for the courts NOT medicine, but the condition would FIRST have to be identified and recognised by medical professionals, Courts to use their own guidance over time. 2013: if the defendant is at fault in bringing about the medical condition, no defence The defendant’s evidentiary burden only, disproving will fall back to the prosecution, The defendant will need evidence from at least 2 experts that at the time they lacked capacity Wrongfulness not limited to illegality Lack of capacity alone = insufficient In relation to ANY offence Range of disposals would stay the same

Automatism - According to the case of Bratty v A-G of Northern Ireland (1963) automatism is: “An act done by the muscles without any control by the mind, such as a spasm, a reflex action or a convulsion; or an act done by a person who is not conscious of what he is doing such as an act done whilst suffering from concussion of whilst sleep-walking” This in fact covers two types of automatism: Insane automatism - same as insanity Non-insane automatism - the cause is external. Complete defence. Actus reus done by the defendant is not voluntary, The defendant also does not have the mens rea, Causes of the automatism must be external: A blow to the head, Attack by a swarm of bees, Sneezing, Hypnotism, Effect of a drug, Hill v Baxter (1958) - the defendant drove through a stop sign without stopping and crashed with another car. Charged with dangerous driving,but acquitted as he said he remembered nothing for some time before reaching the stop sign. However, appealed and sent back to the Magistrates’ court stating that there was no evidence to support a defence of automatism. - The court approved the earlier judgment of Kay v Butterworth (1945) where the judge said - “a person should not be made liable at the criminal law, who through no fault of his own become unconscious when driving, as for example a person who has been struck by a stone or overcome by a sudden illness or when the car has been put temporarily out of his control owing to his being attacked by a swarm of bees” Reduced or partial control of one’s actions is not sufficient to constitute non-insane automatism T (1990) - Raped and three days later committed a robbery and assault. Tried to claim PTSD / dream-like state. Trial judge allowed it to go to the jury, who convicted the defendant. Watmore v Jenkins (1962) - The defendant was driving and suffered a hypoglycaemic episode. Convicted of dangerous driving. The court said that “there was not such a complete destruction of voluntary control as could constitute in law automatism” There had to be some evidence to raise a reasonable doubt that the defendant’s movements were “wholly uncontrolled and uninitiated by a function of conscious will”. Broome v Perkins (1987) - The defendant driving and kept veering away from accidents/collisions. He pleaded a loss of consciousness. Court disagreed, although he was not in full control, there was enough evidence that his mind was controlling his limbs, as he could swerve away from accidents. Must be “total destruction of voluntary control” A-G Reference (No 2 of 1992) (1993) - the defendant was a lorry driver. Driving for several hours and after a while drove along the hard shoulder for around ½ a mile. He hit a broken down car which was sitting on the hard shoulder killing 2 people. He claims he was suffering with “driving without awareness” a condition which puts drivers into a dream-like state. AG referred on a point of after the jury acquitted. Help that the condition only causes partial loss of self-control and therefore not sufficient for a defence of automatism. Self-induced automatism: Where the defendant knows that his conduct is likely to bring on an automatic state E.G: Drinking on certain medication, Bailey (1983) - The defendant was diabetic who failed to eat after taking his insulin. Because aggressive and he hit someone over the head with an iron bar. The trial judge ruled automatism was not available. The court of appeal held that automatism may have been available but in this instance there was insufficient evidence. Though the case in Bailey failed, the court set out the rules on self-induced automatism, Specific intent offences - can be a defence as the defendant lacks the required mens rea. Basic intent offences - the defendant cannot use the defence if he had brought about the automatic state by being reckless: If the defendant had been reckless in getting into an automatic state, self-induced automatism is no defence, subjective recklessness would be the mens rea Where the self-induced automatic state is caused through drinking or illegal drugs, the defendant cannot use the defence - becoming voluntarily intoxicated is reckless (R v Majewski) (Coley) Where the defendant does not know his actions are likely to lead to a self-induced automatic state in which he may commit an offence, he has not been reckless and can use the defence. Hardie (1984) - the defendant’s girlfriend asked him to move out. He was angry so she gave him some valium she had been prescribed telling him it would calm him down. He then set fire to a wardrobe, claiming it was the effect of the valium. The trial judge told the jury to ignore the effect of the valium. - On appeal, it was held that this was wrong. He took the drug thinking it would cam him down. He had not been reckless and automatism should have been left for the jury to decide. C (2007) - Diabetics - “Automatism due to a hypoglycemic attack will not be a defence if the attack might reasonably have been avoided. If the driver ought to have tested his blood glucose level before embarking on his journey, or have appreciated the onset of the symptoms on the journey, then the fact he had an attack even if it removed all of his control, would be no defence for automatism” Coley, McGhee and Harris (2013) - the defendant tried to argue he had drunk himself into an involuntary state. However, the court disagreed.he also tried to argue that he was taking temazepam which had reacted with the alcohol. The court also stated that he was “well aware of the dangers of taking them together” therefore he could not use the defence of automatism. Problems with the law / Reform:Each case must be decided either insane or non-insane automatism - can be tricky, Criminal liability: insanity and automatism - July 2013, Law Commission. Existing common law defence should be abolished, Replaced by a new defence - only where there is total loss of capacity to control one’s actions, not caused by a recognised medical condition and for which the defendant is not culpably responsible Those whose capacity was affected by a recognised medical condition (E.G diabetes) would be required to plead the “new recognised medical condition” defence (from insanity) Outcome - complete acquittal, Evidential burden - pros would have to disprove, not defence to prove.

ATTEMPTS:Inchoate Offences:•Offences that are incomplete•The parties may well have desired that a crime should go ahead, but circumstances beyond their control may have prevented this.•Categories of inchoate offences:- •Attempts – examined in detail –essay/scenario/dilemma,Why punish those who do not complete the offence?•Harm – the threat•Moral blame is identical (if not greater)•Prevention - Police have power to arrest without a warrant a person about to commit an arrestable offence etc…R v White (1910): D puts cyanide in his mother’s drink, intending to kill her. She dies of a heart attack before she could drink it. He tried to commit murder but did not actually kill his mother. He was convicted of attempted murder.•Governed by the Criminal Attempts Act 1981 – abolishes the common law•Definition S1(1) states that a person will be guilty of attempt if: ‘With intent to commit an offence to which this section applies, a person does an act which is more than merely preparatory to the commission of an offence’•S4(1) ‘the attempt is punishable to the same extent as the substantive offence.’•AR – does an act which is more than merely preparatory to the commission of the offence,•MR – with intent to commit that offence.•Prior to the 1981 Act the courts used several tests to decide whether D had done enough towards the commission of the offence, for him to be liable of an attemptThe main tests were:•1) The ‘last act’ test : had D done the last possible thing he could do before committing the offence?•2) The ‘proximity’ test : were D’s acts so immediately connected to the AR of the offence to justify liability for an attempt (backwards looking).•The act that the Def does has to be more than merely preparation for the main crime•Some acts are obviously mere preparation, but other acts are more difficult to categorise•Must be an overt act – not omission•Essentially a question of fact for the jury (s 4 (3) 1981 Act)•DPP v Stonehouse (1978): L Diplock “acts that are merely preparatory to the commission of the offence […] are not sufficiently proximate to constitute an attempt. They do not indicate a fixed irrevocable intention to go on to commit the complete offence […] D must have crossed the Rubicon and burnt his boats”•Gullefer (1987): D placed an £18 bet on a greyhound race. He saw that his dog was losing so he climbed onto the track in front of the dogs waving and trying to distract them so he would get his money back and the race would be ‘void’. However, he failed. He was prosecuted for attempted theft and convicted. CA quashed his conviction: act was merely preparatory. In order to have ‘embarked on the crime proper’ he would have had to have gone to the bookmakers and demanded his money back.•Jones (1990): D’s partner told him she wanted to end their relationship, and that she was seeing another man (A). D brought a shotgun, and shortened the barrel. D then found A in his car. Wearing a crash helmet and visor he climbed into A’s car and pointed the gun at him. A managed to grab the gun and throw it out of the car window. D’s conviction for attempted murder was upheld.•D argued as safety catch still on he had not don’t the last act before committing the crime ‘proper’ - CA held : buying and shortening the gun, loading the gun, disguising himself were all preparatory acts. But getting into A’s car and pointing the gun at him was sufficient evidence to leave the case to be decided by the jury.•Widdowson (1985): D used neighbor's details to try to get a van on hire purchase. Signed the paperwork with his own name. Court held was NOT more than merely preparatory – the company would still have to respond agreeing his finance, and then a hire purchase to go through.•Campbell (1990): D had an imitation gun, sunglasses and a threatening note in his pocket was in the street outside of a post office. His conviction for attempted robbery was quashed. If D had entered the post office then he would have been guilty. •Attorney-General's Reference (no 1 of 1992) (1993):D dragged a girl up some steps towards a shed. He made sexual advances towards her, including physical contact however did not become sexually aroused. He therefore argued he could not have attempted to commit rape. However the court upheld his conviction.•The act of dragging her alone, would be merely preparatory. However the following acts lead his behaviour to be ‘more than merely preparatory’.•Geddes (1996): D found in boys toilets in a school in possession of a large kitchen knife, some rope and masking tape. No right to be in the school. He had no contact with any of the students prior to this day. His conviction for attempted false imprisonment was quashed.•CA thought two questions should be askedn1) had the accused moved from planning or preparation to execution or implementationn2) Had the accused done an act showing that he was actually trying to commit the full offence, or had he got only as far as getting ready, or putting himself in a position, or equipping himself to do so?•Boyle and Boyle (1987): D found standing by a door with a broken lock and hinge. Conviction for attempted burglary was upheld. CA – embarking on the crime proper? Once they were inside it would be burglary, therefore breaking the lock and hinge was embarking on the crime proper.•Tosti (1997): D intended to burgle premises. He took metal cutting equipment with him and hid it behind a nearby hedge. He then examined the padlock, but didn’t damage it. He was convicted of attempted burglary. •Nash (1998): 3 letters addressed to ‘Paper Boy’. Two were offers to engage in sexual activity, and the third purported to offer work at a security firm. The third was signed ‘JJ’. Police told the boy to go to the park to meet ‘JJ’ and when he got there he met D, who asked if he was looking for ‘JJ’. D was then arrested on three accounts of attempting to procure an act of gross indecency. On appeal held no case to answer for the THIRD letter, (but was for first two)•Otton LJ – ‘third letter was not sufficiently approximate to the act of procurement to amount to an attempt’• s.1(1) of the Criminal Attempts Act 1981 – What is the required mens rea for a criminal attempt?•The Def must normally have the same intention as would be required for the full offenceCan be split into sections:1) conditional intent2) recklessness•Easom (1971): D picked up A’s handbag in the cinema, rummaged through it and then put it back without removing anything from it. His conviction for the theft of the bag, and its contents was quashed. CA refused to substitute with a conviction of attempted theft because there was no evidence D intended to steal the items.•No evidence, D had intended to permanently deprive A of the bag or the items within. •Husseyn (1977): D and another man seen loitering at the back of a van. When police approached they ran away. D was arrested on grounds of attempting to steal sub-aqua equipment from the van. CA quashed his conviction. •Attorney-General's Reference (No 1 and 2 of 1979): If D had a conditional intent (IE: intended on stealing if he found anything worth stealing) then could be charged with an attempt to steal some or all of the contents•Based on this principle – Easom would now be charged with attempting to steal some or all of the bags contents, rather than the bag and specific items inside, and Husseyn would be charged of attempting to steal some or all of the contents of the van.Attempted murder:•MR for attempted murder, is higher than the MR for actual murder!•For murder must intend to kill or cause GBH•For attempted murder, must intend to kill•Whybrow (1951): D wired up wife’s bath and caused her electric shock. Convicted of attempted murder. •Walker and Hayles (1990): D1 and D2 engaged in a fight, in which V was thrown over a third floor balcony and severely injured. The MR for attempted murder could be inferred from the fact that D foresaw death as a virtually certain consequence of his acts. •Millard and Vernon (1987): D’s repeatedly pushed against a wooden fence on a stand at a football ground. Prosecution alleged that they were trying to break it, were convicted of attempted criminal damage. Convictions quashed.•Recklessness generally not sufficient MR for attempts. •Attorney-General's Ref (No 3 of 1992) (1994): A petrol bomb thrown from a car narrowly missed a parked car with 4 men inside and 2 standing nearby, instead hitting a wall. Those who threw the bomb were charged with attempted aggravated arson, the court stating that whilst the criminal damage was intentional, they had been reckless as to whether life had been endangered.•Appeal to CA – It was sufficient to intend to damage property, being reckless as to whether lives would be endangered. •Khan (1990): 4 men all tried to have sex with a 16 year old girl unsuccessfully. Convictions upheld despite trial judge's direction that it was only necessary to prove they had intended to have sex, knowing the girl was not consenting, or not caring re:consent.•Pace & Rogers (2014): P worked at a scrap yard owned by R and his father. Police used undercover officers to see if stolen items would be taken into scrap yards. Two separate officers went to the yard with ‘stolen metal’ and both times it was bought by the yard. P and R charged with attempting to convert criminal property. Crown suggested that they suspected the metal was stolen and this MR was sufficient for attempts. Appealed to the CA where it was held that suspicion was too low a level of MR and therefore P and R were not guilty. Committing the impossible: •Prior to 1981 the House of Lords had held that where a crime was legally or physically impossible to commit then the Def could not be guilty of attempting to commit it•Criminal Attempts Act (1981) was intended to close this loophole and make defendants guilty of an attempt even though the full offence was impossible – s1(2)•“ a person may be guilty of attempting to commit an offence…even though the facts are such that the commission of the offence is impossible”•Anderton v Ryan (1985): Mrs R bought a very cheap video recorder. She thought it was stolen which she later admitted to the police. Her conviction was quashed as it was not stolen.•Shivpuri (1986): D agreed to receive a suitcase which he thought contained prohibited drugs. Suitcase was delivered, containing snuff and vegetable matter. D convicted or attempting to be knowingly concerned in dealing with prohibited drugs. The HL combined both s.1(2) and 1(3) of the Criminal Attempts Act meant that a person could be guilty of an attempt even if the commission of the the full offence was impossible.s.1(3) – in any case where (a) apart from this subsection a person's intention would not be regarded as having amounted to an intent to commit an offence, but (b) if the facts of the case had been as he believed them to be, his intention would be so regarded, then for the purpose of subsection (1) he shall be regarded of having an intent to commit that offence.•Jones (2007): D wrote graffiti on the walls of train and station toilets, seeking girls age 8-13 for sex, in return for payment. He left a mobile number for them to call. A journalist saw the message and contacted the police who used undercover officers to pretend to be young girls. D sent several text to one particular ‘girl’ named ‘Amy’ (a ‘12 year old girl’) in which he tried to persuade her to engage in sexual activity. They planned to meet in Burger King in Brighton, where he was arrested. He claimed at trial that he could not be guilty because ‘Amy’ did not exist. The judge rejected this subjection and on appeal his conviction was upheld. Excluded offences:•s.1(4) of the 1981 Act excludes attempts to commit the following..:•Conspiracy•Aiding, abetting, counselling or procuring the commission of an offenceReform:•Sept 2007 Law Commission published a Consultation Paper ‘Conspiracy and Attempts’ (Paper No 183), recommending the following:•1) present offence of an attempt should be abolished and replaced with two new offencesnA new attempt offence, limited to the situation where D reaches the last acts needed to commit the substantive offence: “criminal attempt”nA new attempt of criminal preparation•2) Both new offences, would require proof of intention to commit the substantive offence (direct, oblique, conditional)•3) Both new offences carry same max penalty as substantive offence•4) Should be possible to commit either of the new offences by omission•However this idea was abandoned in their 2000 report•2009 paper ‘Conspiracy and Attempts’•Amended so that intent includes conditional intent – in statute•D should only be guilty of a circumstance crime, if he was SUBJECTIVELY reckless•Provided D has the same MR as the original crime (unless negligence) should be capable of being convicted of an attempt•Should also include omissions where D failed to discharge their legal duty to V•These recommendations were accepted but will not be implementedEssay Points:1.The courts have not been very clear in deciding the dividing line between what is “merely preparatory” and what is an attempt – better than the old law, however does leave gaps for cases such as Gullefer and Gedes2.Some decisions in this area are not effective for protecting the public – Geddes?!3.The early decisions on “mens rea left a loophole where D intended to steal if he could find anything worth stealing, but the concept of conditional intent has now clarified this.4.Then there is the point of whether D should be guilty just because of intention – D must do something toward the offence, before being guilty? What about people like Shivpuri?5. It could be argued that in cases such as Shivpuri and Jones the defendants are being convicted on their MR alone, they haven’t actually done anything ‘more than merely preparatory’•HOWEVER – this aim is to protect society?6. An attempt cannot be committed by omission – ‘an act that is more than merely preparatory’ – is a suggestion in Law Comm Report 2009 ‘where D failed to discharge his or her duty to V, where that omission unchecked, would have resulted in V’s death” allows for some attempts even where an omission is concerned7. D must act with ‘intent to commit an offence’ - only direct intention is sufficient MR? – Court generally have shown that intent does also include foresight of consequences8. Recklessness – not sufficient for MR generally, even if it is for the full offence.9. Rationale behind attempts – stopping criminal behaviour before harm is caused10. Gives power to the police to stop criminals before they go on to commit an offence BUT need to balance this against too early interventions otherwise we would be punishing people for just THINKING something11. Left to the jury to decide using common sense – GENERALLY this is satisfactory12. Inconsistencies in cases and how the tests really apply13. Is the current law enough of a deterrent?

Actus Reus – The physical element of the crimeCan consist of:● Conduct● Consequence● CircumstanceCausation Role of the prosecution to prove D caused a guilty consequence. They need to prove that events surrounding the act didn’t break the chain of causation for example if there is a large intervening action this can break the chain of causation.For someone to have committed the actus reus they must have factual and legal causation.Factual causationThis is often known as the ‘but for’ test. The definition was in the case of White 1910.White 1910 – D poisoned his mother’s milk. She took a few sips fell asleep and died however she had a heart attack and wasn’t killed by the poison. D was not found guilty of murder as the act of poisoning the milk didn’t cause the death. He was guilty of the attempt.AO2 – The judgment in this case can be seen as quite lenient in favour of D as if V didn’t have a heart attack then the poison would have killed her so D therefore got off lightly with attempted murder as normally in that situation D would have been successful and then charged with murder a more serious offence. However the ‘but for’ test which this case established is fair because of there is no factual connection between D and the offence then it is unfair to blame D as the result would have been the same even if they didn’t act.Legal causationFactual causation on its own however is not enough to make someone responsible for committing a crime, legal causation is also needed. This is strongly linked to moral responsibility with the law asking whether it is fair that the result can be said to be D’s fault. This is shown by Merchant and Muntz 2004.Merchant and Muntz 2004 – D was a delivering some bales of hay. Whilst at a junction a motorcyclist impaled on the unprotected tyne of the vehicle. The conviction was e as even if there had been a guard on the tyne V still would have been fatally injured.AO2 – This decision can be seen to be fair on D because even if the tyne had been protected the outcome would have been fatal for V. Therefore although factually D’s fault it would not be moral to blame D. Also this is enforced by the fact that V was speeding so the accident can also be seen to be V’s fault in that if V hadn’t have been speeding then the accident probably wouldn’t have occurred and D would have been charged in the first place. However the decision can be seen to be unduly lenient in favour of D because if the accident had happened at lower speed than the tyne being protected would have prevented fatal injury. Therefore it can still be seen to be unsafe and therefore considered that D should have faced consequences as D was putting the lives of other motorists at risk. The ‘acceleration’ principleD has legally caused death if he ‘accelerates’ the death of a person.Adams 1957 – D, a doctor gave a terminally ill patient an overdose of painkillers.AO2 – This decision can be seen as harsh but supporter of the principle of euthanasia as V was going to die anyway and D just cut short this pain. Many people would see this a helping V not murdering him.The ‘de minimus’ principleIf D were to prick a man with a pin who was already dying he would not legally have caused his death.Kimsey 1996 – D was involved in a high speed car chase with her friend losing control of the car, crashing and killing another driver. D was convicted of causing death by dangerous driving despite not actually driving. The court of appeal upheld the conviction say that there was ‘more than slight trifling link’ between her actions and the outcome.AO2 – This decision can be seen to be quite harsh as D was not actually driving the car and it’s hard to determine whether her actions had a big or small impact on the outcome.The actions of a third partyWhere the actions of a third party usually medics or police clearly contribute to the outcome then this can be seen to break the chain of causation.Jordan 1956 – D stabbed V who was taken to hospital and was poorly treated, 8 day later V died of pneumonia, by this time the stab wound had started to heal. D’s conviction was quashed by the court of appeal who said the actions of the doctors clearly broke the chain of causation and that the stab wound would not have killed V.AO2 – This can be seen as a lenient decision in favour of D as if it wasn’t for his actions of stabbing V which started the chain then V wouldn’t have been mistreated in the hospital and wouldn’t have died even if this death was on down to the actions of V but down to the poor treatment at the hospital. However the decision can also be seen to be a fair one as by the time Jordan died his stab wounds were no longer a threat to his life and were healing so it would have been harsh to convict D of murder for causing these wounds which didn’t kill V.Smith 1959 – D, a soldier got in a fight with V and stabbed him. He was dropped twice by the medics. They incorrectly treated him and punched his lung. V died and D was convicted of murder. The Court of Appeal upheld the conviction because although V received bad treatment the chain of causation wasn’t broken.AO2 – This conviction can be seen as harsh on D because if treated properly then V would have survived. However if D wasn’t convicted then the medics and doctors would have been guilty of causing the death which wouldn’t work because if they were then it would be unlikely people would become medics in the first place due to the risk of conviction and then no one would be there to care for anyone. Also they were trying to help.R v Rafferty 2007 – D and 2 others attacked D leaving him unconscious. D took V’s credit card and went to get some money. When he returned the other 2 had gone and V had been dragged into the sea and drowned. D was charged with manslaughter. The Court of Appeal quashed the conviction.A02 – This decision is fair because although D attacked V he didn’t kill him so it would be unjust to charge him with manslaughter when he had no part in actually killing V. On the other hand the verdict can be seen as lenient because if it wasn’t for the actions of D then V may not have been unconscious and V may have been able to fight back and it would have been as easy to for him to drown.The Thin Skull RuleThis rule outlines that you take the victim as you find them so it can’t be argued that the outcome would have been different if it was a different victim because it was not a different victim.Blaue 1975 - D stabbed V after she refused to have sex with him. A blood transfusion would have saved her but she refused for religious reasons and died. D was charged with manslaughter. The Court of Appeal upheld the conviction following Jordan and Smith that the wound was still the operative cause of death.AO2 – Some argue that D’s conviction of manslaughter was very harsh and that D could still have been charged with s.18 GBH which is still a very serious offence but without D been held responsible for V’s death.The victim's own actions broke the chainDear 1996 – D’s daughter accused V of sexually abusing her. D went after V and stabbed him with a Stanley Knife. V received medical treatment but later reopened the wounds in what was thought to be a suicide attempt and died 2 days later. D was charged with murder and D argued that D reopening the wounds amounted to Actus Reus. The Court of Appeal upheld the conviction as the wound was still an operating and substantial cause of death.AO2 – The decision can be seen as very harsh on D as V reopened the wounds in what was thought to be a suicide attempt which was not V’s fault. A charge of manslaughter may be considered more suitable in this situation considering the circumstances and that V’s action by some people may have been seen to break the chain of causation even though that is not what the court ruled.Kennedy 2000 – D prepared a syringe with heroin and gave it to V who injected and overdosed and died. D was charged with manslaughter however the appeal was allowed as D had not caused the death of a fully informed and responsible adult who self-injected heroin following D’s supply.AO2 – This decision can be seen as lenient as V took the syringe not thinking it was going to kill him trusting D however as a responsible adult he should have considered the risks and also D also didn’t expect the syringe to kill V so it would have been harsh to convict him especially as he didn’t physically cause the death as V did that himself by injected the heroin.The Intervening actions were unforeseeable.Roberts 1971 – V jumped from the car to avoid D’s sexual advances. The car was travelling at between 20-40 MPH and she was injured. D was charged with ABH for the his sexual advances and it was ruled that V’s action couldn’t be seen as breaking the chain of causation as they were so daft and unforeseeable so D’s conviction was upheld. OmissionsThe general rule for omissions (the failure to act) can’t make a person guilty of an offence in the UK. This is because to fulfil the Actus Reus of a crime, you generally need to participate in the act. However there are a few exceptions to this rule however there must usually be a duty of care for an omission to fulfil the Actus Reus.A statutory dutyAn Act of Parliament can create a liability for an omission.S6 Road Traffic Act 1988 – you can be found criminally liable for a failure to provide a breath sample.S1 Children and Young Person's Act 1933 – You can be found criminally liable for wilful neglect of a child. This was enacted following the case of Gibbons v Proctor 1918.Under a contractual dutyIf there is a contractual duty to perform a role anyone who may be affected by your failure to affected act and perform the role properly is under your duty of care. This was established in Pittwood 1902.Pittwood 1902 – D was guilty of manslaughter. He was responsible for the train gates and left them unattended while he had lunch. A train he a cart and person who was killed. His failure to fulfil his contractual duty meant that he was guilty of manslaughter by an omission.AO2 – The decision in Pittwood can be seen as quite harsh as arguably his duty was to his employer and not to the public. However the Court of Appeal rejected this. Also if he wasn’t convicted then the decision may have been harsh on V who wouldn’t have died if D had been doing his job properly.Adomako 1994 – An antitheist failed to observe during an operation and a tube fell off and D didn’t act making D guilty of manslaughter though an omission as D has a contractual duty of care for the patient as an antitheist.A duty of care which exists because of a relationship (e.g parent and child)Gibbons and Proctor 1918 – G was the father of several children. Him and his wife kept one of the children separate from the others and deliberately starved her to death. The Court of Appeal convicted them both of murder as they both had a duty of care for V the dad though his relationship to her and his wife voluntarily due to the make that she moved into care for her.R v Hood 2004 – D was V’s sole carer and husband. She suffered from brittle bones and broke a number of them in a fall. She was reluctant to go to hospital. D didn’t summon help for three week. She died in hospital. D was convicted of gross negligent manslaughter.AO2 – This decision can be seen as harsh because V didn’t want to go to hospital and by not summoning help D was following her wishes and even though he is her carer she is still a fully responsible adult and she made the choice for him not to summon help.A duty of care voluntarily assumedStone and Dobinson 1977 – D had undertaken the care of her elder sister with her husband. Her sister was anorexic and became bedridden and died. They were both convicted of manslaughter despite the fact they suffered from learning difficulties and couldn’t use a phone and they had tried to feed her but she refused.AO2 – The pair suffered from bad learning difficulties and disabilities and V had refused their meal and attempts to help and refused to give them the name of her doctor. They appeared to have tried their hardest to help V so the decision feels harsh.Instan 1893 – D moved in with her aunt who was ill and unable to feed herself or call for help. D didn’t summon help when she got bad and continued to eat her food and V’s body was found in the house decomposing for about a week. D was convicted of manslaughter and the Court of Appeal upheld the conviction as D had voluntarily taken up a duty of care.A duty of care due to a position of public office.Dytham 1979 – A police officer stood and watched a man get kicked out of a nightclub and get kicked to death. His failure to act amounted to a liability for an omission.As a result of a dangerous situation created by DMiller 1983 – D awoke to find he had set his mattress on fire. He ignored it and £800 worth of damage ensued. If a person accidently starts something that causes harm they have a duty to try and rectify it and a failure to do so can lead to liability.AO2 – Miller means that a defendant can’t always be sure that he will have no criminal liability for failing to act. Lord Judge said in Evans 2009 that where a person has contributed to a life threatening situation, they have a duty to try and amend it.Other AO2 pointsMany situations where criminal liability will be imposed have been decided by judges with case law. There situations which amount to crimes should be decided by parliament, who are democratically elected unlike judges.The concept of omissions is a criminal one and not necessarily a moral concept. This is because moral people should want to help their fellow citizens but it would seem wrong to punish them for failing to do so and making it a criminal offence.

Omissions An Omission is a failure to act. The General Principle in UK is that you can’t be criminally convicted for an omission however there are exceptions, the main one being where there is a duty to act. Types of duty 1 - Statutory duty Sometime Acts of Parliament lay down situations where someone had to act. Examples - Road Traffic Act 1988- S. 6 failure to provide breath specimen when asked- S.154 failure to provide insurance documents- S. 170 failure to stop at and report a road traffic accident- Children and Young Persons Act 1933 (This statute enacted what was said in Gibbons and Proctor into statute)- Provide food, clothing and medical aid and lodging for their child- Terrorism Act 2000- S. 19 Failure to provide information under the Terrorism Act 2000. 2 - Contractual Duty Sometimes someone might have a contractual duty to act Pittwood - Level crossing keeper failed to close crossing leading to someone being killed. D was found guilty of manslaughter. Point of Law - If someone has contractual duty not just to employer but to people affected by how they perform their duty. AO2 - Pittwood can be seen as a harsh decision because arguably as it was only a contractual duty D only owed a duty to his employer and not the public. However this decision is clearly made for public policy reasons to protect the public. Adomako - An anaesthetist fail to act when V’s tube became disconnected. D was convicted of gross negligence manslaughter. Point of Law - Duty of care to patient to perform job to expected standard, fell well below standard expected. 3 - Public Office Dytham - D an off duty police officer saw V get kicked to death and didn’t intervene. He was convicted of misconduct while in office. Point of Law - A duty can be though official position and in his instance V willingly omitted to carry out his duty. AO2 - This decision is positive in terms of public policy because it places a duty on people in positions of public office to protect the public. However this decision can be seen as harsh because D was off duty. 4 - Parental duty Gibbons and Proctor - A man and his common law wife failed to feed their daughter who died. They were convicted of murder. Point of Law - Father due a duty of care to V due to his relationship to V and wife owed a duty of care as parent due to the voluntary duty she took up as common-law wife of Father. AO2 - Purely the vulnerability of the child justified the Parents owing a duty and therefore them being found criminally liable. Parliament also seem to agree this is justifiable as they enacted it into a statutory duty in the Children and Young Persons Act 1933. Other family relationships R v Hood - D was sole carer of V his wife. She fell and was reluctant to go to hospital. D failed to get help and V died in hospital. D was convicted of gross negligent manslaughter. Point of Law - Husband and Wife have a duty of care to each other 5 - A voluntarily assumed duty of care Instan - D went to her Grandma’s house who became ill. D didn’t feed her or summon help but continued to take her food and remain in the house. V died. D’s conviction of manslaughter was upheld in Court of Appeal. Point of Law - She had voluntarily assumed a duty of care for her Grandma Stone and Dobinson - Stone’s sister lived with Ds. She became bedridden, both Ds helped care for her and she died. Ds found guilty of manslaughter. Point of Law - Stone had a duty of care due to relationship to V and other D had voluntary duty as she helped look after D so it is possible for Ds to be convicted of an omission. AO2 - This was justified as they had voluntarily assumed care of V however can be seen as harsh as they tried to care but were incapable. 6 - Duty to rectify dangerous situations that D created Miller - D fell asleep smoking setting fire to his mattress. He moved to another room making no attempt to put out the fire. Point of Law - If someone causes a dangerous situation then they have a duty to rectify the situation. AO2 - This can be seen to create some uncertainty of Ds as they will not always be sure if they have criminal liability for a failure to act if they are not sure if they have created a dangerous situation. However despite this this can be seen to be a good public policy decision because it helps protect the public from the dangerous situations which D create by having a duty for D to try and rectify them. This principle was applied in DPP v Santa Bermudez DPP v Santana Bermudez - Police woman asked if D had any sharp objects on him, he said no. We she searched his pocket she stabbed herself on a needle. D was found guilty of s. 47 OAPA 1861 though an omission. AO2 - This can be seen to create consistency by applying what was said in Miller. Omissions and drugs Khan and Khan - Ds supplied drug to a 15 year old. She died and they dumped her body. Conviction of manslaughter overturned as there was no duty of care. Point of Law - No duty of care between drug dealer and taking. Alos said it was up to the jury, not the judge to decide if there could be a duty of care. AO2 - This decision can be seen to open up the possibility for more defendants to be guilty by omission. This is because it leaves it the decision to the jury and this could increase the number of situations where it is considered a duty arises due to the subjective nature of juries. It also makes it unclear for the defendant whether they are going to be found guilty by omission or not. However it can be seen to make it fairer as people are tried by their peers rather than an unelected judge. This decision can be seen to contrast with other drug based decisions Ruffel - D and V injected heroin at a friend’s house,V became ill. D tried to revive him and failed leaving him and not calling the police, V died. D was convicted of manslaughter. Evans - D lived with sister V. He brought V some heroin which she took, overdosed and died from. Either D or V’s mother called an ambulance. Conviction of both D and Mother upheld. D had a duty to rectify the dangerous situation and the mother had a parental duty. AO2 - Although it can be seen that these decision conflict with Khan as they are providing or doing drugs with V in both of these situations there is an established duty from previous common law therefore they are consistent with the previous law. Furthermore in both of these situations they achieved the correct public policy decisions, even if in Ruffel it could be as harsh on D who did initially try and help V but failed. Doctors not guilty of murder if they can’t help someone who is in a persistent vegetative state. Airedale NHS Trust v Bland - V was in a vegetative state and House of Lords ruled a failure to feed him which would inevitably cause his death was not murder as V was already brain dead. AO2 - This is only a civil case so only acts as a persuasive precedent for criminal law. This means that there is still some uncertainty in this area as Bland doesn’t have to be followed. Furthermore this decision allows a could allow a back door for euthanasia which Pretty 2002 confirmed was not legal. However this decision helps protect Doctors from conviction when they are trying to act in the best interests of the patient.