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D broke in to a shop intending to rob it
V disturbed D
D struck V and kicked her in the face – as a result, V died
D was convicted of murder
D appealed on the grounds that under the ‘Offences Against the Persons Act’ 1861, if he was intending to cause GBH, he was guilty of GBH, not murder (e.g. he was guilty of another offence, and therefore the conviction for murder had to be disregarded)
Court of appeal rejected this appeal... which confirms that mens rea of murder includes ‘intention to commit GBH’ (EXAMPLE OF JUDGE MADE LAW, CASE LAW, COMMON LAW) |
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PRESUMPTION AGAINST GIVING A JURY DIRECTION ON ‘INTENTION’
D had been drinking beer with V – D was ‘very fond’ of V
D&V decided it would be ‘fun’ to see who could load a gun and fire it the fastest
D accidently shot and killed V
Judge at first instance had directed jury to consider ‘knowledge or foresight’ as being part of intention
D appealed
OVERRULED – ‘the golden rule should be that, when directing a jury on the mental element necessary in a crime of specific intent, the judge should avoid any elaboration or paraphrase of what is mean by intent, and leave it to the jury’s good sense to decide whether the accused has acted with the necessary intent...[referring to murder statute]...I do not by any means take the conjunction of the verbs “intended or foresaw”... in that section as an indication that Parliament treated them as synonymous; on the contrary, two verbs were needed to connote two different states of mind’ – therefore, foresight is NOT part of intention
Foresight can only be included with intention in rare circumstances... where the outcome is a natural consequence of the defendant’s voluntary act |
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o OBLIQUE INTENTION – ACTUS REUS MUST BE A VIRTUAL CERTAINTY
PRESUMPTION AGAINST GIVING A JURY DIRECTION ON ‘INTENTION’
D had a grudge against V’s mother
D went to V’s mother’s house and poured paraffin through the letterbox & set it alight
V died in the ensuing fire
First instance = D found guilty of murder
D appealed on the grounds that Judge at first instance shouldn’t have given Jury direction on ‘intention’
Court of Appeal found that D was NOT guilty of murder... it was not a virtual certainty that V would die, therefore = oblique intention not applicable & direct intention not applicable
Jury can only ‘find’ oblique intention if ‘they feel sure that death or serious injury was a virtual certainty and that the D appreciated that such was the case |
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Re-inforced Nedrick ruling that oblique intention requires actus reus to be a virtual certainty
‘in my view, the judgement in Nedrick provided valuable assistance to trial judges... if the jury are satisfied that at the material time the defendant recognised that death or serious harm would be virtually certain to result from his voluntary act, then that is a fact from which they may find it easy to infer that he intended to kill or do serious bodily harm, even though he may not have had any desire to achieve that result’ |
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| Case and comment on R v Woolin, Sir John Smith [1998] |
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THE TEST FOR OBLIQUE INTENTION SHOULD NOT REQUIRE THE RESULT TO BE VIRTUALLY CERTAIN, IT SHOULD BE ENOUGH THAT THE DEFENDANT FORESAW THE RESULT AS VIRTUALLY CERTAIN
Obiter dictum – ‘D points a pistol at V’s heart at point-blank range and pulls the trigger. He believes V will be shot dead. But, unknown to D, his gun has been unloaded/V is wearing a bullet-proof vest. The result is not certain-indeed, it certainly will not occur-but it is undoubtedly intended. Of course, if the result is virtually certain in the circumstances known to D, that is persuasive evidence that he knew it was, and therefore intended the result’ |
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INTENTION IS DIFFERENT FROM MOTIVE – INTENTION = INTENTION TO PERFORM THE SPECIFIC ACT THROUGH THE MEANS CHOSEN
... MOTIVE = PURPOSE FOR HAVING THE INTENTION TO PERFORM THE SPECIFIC ACT
D had wished to demonstrate their opposition to nuclear weapons
D’s planned to break in to an RAF station and immobilise it for 6hrs
D’s were convicted under s1 OSA 1911 – ‘to enter a prohibited place for a purpose prejudicial to the safety or interests of the state’
D’s appealed – their purpose was for the interests of the state
CA held the conviction – ‘the motive behind the immediate action was irrelevant, they still intended the method of achieving it’ method of achieving it = entering a prohibited place for a purpose prejudicial to the safety or interests of the state
Intention is different from motive... intention = intention to perform the specific act... motive = purpose for having the intention to perform the specific act... |
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Intention and motive are two different things... regardless of motive, you still have the intention to perform the specific act
If D intends to rape V, and so gives her a sleeping pill... and she dies... he will, in our judgement, have the intent to injure the person in question |
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‘in a statutory definition of a crime “malice” must not be taken in the old vague sense of wickedness in general, but as requiring either (1) an actual intention to do the particular kind of harm that in fact was done; or (2) recklessness as to whether such harm should occur or not (i.e. the accused has foreseen that the particular type of harm might be done and yet has gone on to take the risk of it). It is neither limited to nor does it require any ill will towards the person injured’
REFERS TO MALICE IN THIS CASE, HOWEVER = APPLICABLE TO ALL TYPES OF RECKLESSNESS...
SUBJECTIVE RECKLESSNESS = D FORESEES THAT THE PARTICULAR TYPE OF HARM MIGHT BE DONE AND YET HAS GONE ON TO TAKE THE RISK OF IT |
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Appeal case
First instance judge had directed the jury that it was enough that D ‘should have foreseen the risk’, thus leading the jury to think that it is enough that D ought to have foreseen.
Conviction was quashed – TO BE RECKLESS, D MUST ACTUALLY FORESEE SOME HARM AND DELIBERATELY TAKE THE ACTION (PLUS, MUST BALANCE SOCIAL UTILITY WITH DEGREE OF RISK & GRAVITY OF HARM)
THE DIRECTION THE JUDGE GAVE IN THIS CASE = SIMILAR TO CALDWELL PRINCIPLE |
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D slammed a phone down in anger and broke the phone
D argued that the anger had blocked the risk out of his mind
D was found guilty of subjective recklessness |
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Objective recklessness
Provided that the reasonable man foresees the risk... it is assumed that the D was reckless |
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OBJECTIVE TEST OF RECKLESSNESS OVERRULED!!!
D’s aged 11&12 went camping without parent’s permission
During the night, D’s set fire to newspaper and threw the lit newspaper under a bin beside a shop
In the morning, D’s left without putting out the fire
The fire spread to the neighbouring shop and caused £1m worth of damage
D’s argued that they had expected the newspaper to burn themselves out on the concrete floor... neither D appreciated the risk of the fire spreading as it did
First instance judge applied the Caldwell ‘rule’ and found the D’s guilty of manslaughter...
Court of Appeal applied the Caldwell rule and HELD the first instance ruling
HOL – overruled Caldwell – argued that Caldwell had no legal basis – NOT USED ANYMORE
‘whilst it is clearly blameworthy to take a risk obvious to the D, it is not ‘clearly blameworthy’ to do something involving a risk of harm when the D has not perceived that risk’
HOL trials involved in the trial then went on to approve a definition of recklessness, as laid down by the Law Commissions Draft Criminal Code (1989)
R V G = TO CONVICT A PERSON OF CRIMINAL DAMAGE =
i. AT THE TIME OF COMMITTING THE AR THE ACCUSED WAS SUBJECTIVELY AWARE OF THE RISK
ii. IN ALL CIRCUMSTANCES IT WAS OBJECTIVELY UNREASONABLE FOR THE ACCUSED TO TAKE THE RISK |
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| Clause 18 of the Law Commissions Draft Criminal Code [1989] |
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A person acts recklessly within the meaning of section 1 of the Criminal Damage Act 1971 with respect to –
i. A circumstance when he is aware of a risk that it exists or will exist
ii. A result when he is aware of a risk that will occur
And it is, in these circumstances known to him, unreasonable to take that risk |
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DEFINITION OF GROSS NEGLIGENCE
‘in order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused... showed such disregard for the life and safety of others as to amount to a crime against the state and conduct deserving punishment’ |
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TRANSFERRED MALICE
D took a belt and aimed a blow at C
The belt his C slightly, then recoiled and hit V in the face, wounding V seriously
Court held that D’s intention to injure C could be transferred to V (joining up the MR and the AR) |
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TRANSFERRED MALICE CAN EVEN LEAD TO A CONVICTION FOR MANSLAUGHTER
D assaulted C
C fell on V and V died
D was convicted of the manslaughter of V – the AR for C was transferred to V |
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WHEN TRANSFERRING MALICE, D MUST HAVE THE MR FOR THE CRIME CHARGED, NOT POSSIBLE TO MIX AND MATCH DIFFERENT MRS TO DIFFERENT ARS
D threw a stone at a crowd of people
D missed the crowd, but hit & broke a glass window
D was found to have intended to hit the people, but not the window
D’s mens rea could not be transferred to the AR, as the MR for criminal damage is not the same as for GBH |
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THE TRANSACTION PRINCIPLE – WITH AN ANTECEDENT PLAN
D’S hit V over the head with the intent to kill him
Thinking they had killed him, they rolled his body off of a cliff to make his death seem accidental
V hadn’t actually died from the blow to the head, and instead died from being rolled off of a cliff
D’s were found guilty
It appears... impossible to divide up what was really series of acts in this way. There is no doubt that the accused set out to do all these acts in order to achieve their plan... it is much too refined an argument to say that, because they were under the misapprehension at one stage and thought that their guilty purpose had been achieved before, in fact, it was achieved, therefore they are to escape the penalties of the law
NOTE – IN THIS CASE, D’S HAD A PLAN THAT THEY WERE FOLLOWING THROUGH... THERE NEED NOT BE A PRE-PLANNED ‘ACTIVITY’, SEE R V CHURCH & R v LE BRUN |
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THE TRANSACTION PRINCIPLE WITHOUT AN ANTECEDENT PLAN
D attacked V, and believing that she was dead, pushed her in to a river
V, who hadn’t died from the attack, subsequently drowned
On application of the transaction principle, D was found to be guilty |
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D hit his wife (V) on the jaw
V fell unconscious
D attempted to drag V home... in doing so, D accidently dropped V and fractured her skull and killed her
D was convicted of manslaughter
The court said that the unlawful act and the act causing death were all part of the ‘same transaction’. Judge states that it did not matter that there was no preconceived plan... the transaction continued as long as the D was trying to cover up the crime he believed he had committed |
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CAUSATION – MR FLOWS ALONG UNTIL AR OCCURS
D hit V over the head and throttled him with a tie
Thinking the V was dead, they left him on the bed and set his house on fire
V died as a result of the fire
D was found guilty – earlier acts had been done with the MR of murder, if the V had not been unconscious, he wouldn’t have remained in the house and died |
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| A.G. Ref (No.4 of 1980) [1981] |
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D pushed V down some stairs
D then pulled V back up the stair using a rope tied around her neck
D then slit V’s throat
It was unclear which of the acts of the D had killed the V
Court found D guilty – it was unnecessary to prove what act caused the V’s death... ‘it is not necessary to prove which act caused the death, in order to prove a conviction’ |
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D was convicted of an offence which had been created by a statute which was passed while he was ‘out at sea’
D committed the offence before the end of his voyage... could not possibly have known about the new statute (bear in mind this is 1800)
D = guilty of the offence |
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MISTAKES WHICH NEGATE THE MR
D had installed a stereo system in a rented flat and, with the consent of the landlady added some roof and wall panels to hide the wiring
As the wall and roof panels were attached to the building, they became fixtures, and became the property of the landlady
Not knowing about this law, D removed his stereo system, and in the process of doing so, he damaged the wall and ceiling panels
CA quashed his conviction for criminal damage, because he did not intentionally or recklessly damage property belonging to another (he thought the property belonged to him... and although ignorance is not a defence, there was still not the necessary MR for criminal damage) |
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