Developments in Criminal Law

1
Developments in Criminal Law

• David Ormerod

2
Sources of Criminal Law

• Pepper v Hart (that a Govt Ministers statements
  may be used to assist interpretation)
• Should not be applied in construing an ambiguous
  criminal provision to enlarge the scope of
  liability Thet v DPP
• May be prayed in aid by the defence R v Tabnak

3
Interpretation

• No defence of de minimis in criminal law Scott
  (2008)
• Partnership - possible for partnership to be
  criminally liable in its own right separately
  from individuals

4
Manslaughter drugs

• D prepares syringe, V self injects what
  liability for D?
• HL
• If V is fully informed responsible adult there is
  never any liability on D (apart from supply)
• D has not administered the drug
• Principle that Vs voluntary act breaks the chain
  is fundamental
• D not liable for s 23 OAPA as Vs act breaks
  chain of causation.
• No unlawful act manslaughter charge.

5
Kennedy No 2 in House of Lords

• Crown could not establish that D administered
  (that requires actual injection)
• D holding tourniquet for V will not render D
  liable Rogers wrongly decided.
• NB Burgess 2008 D liable if he assisted in
  finding Vs vein.
• Nothing said casts doubt on gross negligence
  manslaughter still available if D leaves V in
  difficulty
• Empress Cars restricted to environmental crimes.

6
Mens Rea

• G (2003) HL subjective test of recklessness
  being widely applied.
• G is not to be restricted so as to require D to
  have foreseen an obvious and serious risk
  Brady

7
G, strict liability Article 6

• Art 12 Sexual Offences NI (Order) 2008
• Penile penetration of a child under 13 a strict
  liability offence, and belief in consent or the
  age of V has no application.
• Even where D reasonably believed that the child
  was over 16 he commits the offence.

8
Duress

• Duress is tested almost exclusively by objective
  standards Hasan
• Duress is no defence to murder even if killer is
  acting as a secondary party and is a child
  Wilson
• Law Comm - recommend that it should be possible
  for the jury to acquit of homicide if D proves
  that he took part in a killing only in response
  to an imminent threat of death or
  life-threatening injury (duress).

9
Voluntary exposure to threats

• Ali 2008 EWCA Crim 716
• Robbery by D who pleaded duress
• D had got in with bad company
• D was denied the defence if he had or ought to
  have realised that he was exposing himself to the
  risk of threats of violence.
• No need to prove D was joining a criminal gang

10
Doli Incapax DPP v P

• Presumption that child 10-14 has no mischievous
  discretion abolished by Art 3 of the Crim Justice
  NI Order 1998
• Is the defence itself still available for D
  (10-14) who raises some evidence that he did not
  know what he was doing was seriously wrong. Crown
  must disprove defence.
• NO ! R v T (2008)

11
Intoxication R v Heard

• Section 3 of the Sexual Offences Act 2003 (E W)
  / Art 7 Sexual Offences (NI) Order 2008
• creates an offence of intentional sexual
  touching
• Voluntary intoxication is no defence to s 3 SOA
  2003 (intentional touching)
• Wide impact as most SOA cases are intentional
  touching/penetration etc

12
Heard not so basic?

• Majewski
• Problematical case
• Not clear that all cases can be divided into pure
  recklessness or intent
• Specific intent is a crime where the intent goes
  beyond the immediate actus reus (eg criminal
  damage with intent to endanger life).
• Look to whether a bolt on/further actus reus
  element is present

13
Heard the limits

• Person who flails around when drunk and touches V
  does so accidentally
• Consider liability of
• D who is on LSD trip and touches V ?
• D who makes a drunken error about how close he
  will come to touching V?
• Does Heard undermine Majewski?

14
Private defence

• D can plead a genuine mistake as to the need to
  use force in expelling what he thinks is a
  burglar. The amount of force used must be
  reasonable Faraj (2007)

15
Insanity Johnson

• If D knows his act is legally wrong he cannot
  plead insanity
• CA rejects argument for extending the scope of
  the defence of insanity to include acts D knew to
  be legally wrong, but thought were morally
  justified.
• The law remains as settled in R v Windle 1952 2
  Q.B. 826.

16
Joint Enterprise Liability

• Powell and Daniels, English (1999)
• D, secondary party, liable for murder if
• realised that the principal might kill with
  intent to do so, or
• realised there was a risk that the principal
  might cause gbh with intent.
• If fundamentally different acts by P, D not
  liable English

17
Joint enterprise - issues to resolve

• (i) When does the fundamentally different rule
  bite? Is it only when D has not foreseen that P
  might kill?
• What does fundamentally different mean?
• What effect has a change of mens rea by P?

18

• Murder if D intended that P would kill V
  intending to kill him
• OR
• D realised that P might kill V with intent to
  kill him
• 2. Did D realise that P might kill V with intent
  to cause gbh?
• OR
• Did D intend that gbh would be caused to V
• OR
• Did D realise that P might cause gbh to V
  intending to cause him such harm
• 3. What was P's act which caused the death of V?
• 4. Did D realise P might do this act? If yes,
  murder. If no, go to Q 5.
• 5. What act or acts did D realise that P might do
  to cause V gbh?
• 6. Are you sure that the act which D realised P
  might do is not fundamentally different to P's
  act which caused Vs death?
• If yes, guilty of murder. If no, not guilty of
  murder.

19
Rafferty

• P1 and P2 kill V by drowning. D participate in
  earlier gbh attack on V.
• D not guilty as a principal as his acts at the
  gbh had no causal connection to death
• P1 and P2s act was independent and unforeseen
• D not liable as a secondary party
• P1 and P2s act of drowning is fundamentally
  different?
• D had withdrawn by leaving the scene

20
(No Transcript)
21
Incitement

• D by text message incites V to engage in sexual
  activity.
• V is undercover officer so not under 13
• D thinks and intends V is under 13
• D has committed the act of incitement
• But offence entirely in Ds mind?
• D denied defence under s 10 because undercover
  officer claims to be under 13

22
Incitement

• Serious Crime Act 2007 Part 2
• Abolishes common law incitement
• Replaces with three new offences
• Incredible complexity and technicality
• Very strange overriding defence of reasonableness
  
• Not yet in force
• A sign of things to come?

23
Section 44

• Doing an act capable of encouraging or assisting
  the commission of an offence, with intent.
• Actus reus
• An act, capable of encouraging, includes hostile
  or friendly encouragement
• Mens rea
• D intends to assist or encourage
• D reckless as to whether E will have mens rea
• D believes or intends circumstance and
  consequences of the full offence

24
Section 44

• Defences
• No defence of ignorance of criminal law
• No defence that full crime not committed
• Defence for D to prove he acted reasonably
• Defence if D is the victim of the crime he
  intends E to commit
• Procedure
• Triable either way
• D can be convicted under s44 even if D is
  principal offender

25
Section 45

• Doing an act capable of encouraging or assisting
  an offence, believing that the offence will be
  committed and act will encourage or assist.
• Actus reus
• An act, capable of encouraging..
• Mens rea
• Belief acts will assist/encourage
• Belief offence will be committed
• Belief or recklessness as to Es state of mind
• Mens rea as to consequences and circumstances of
  the full offence

26
Section 46

• Doing an act capable of encouraging or assisting
  the commission of one or more of a number of
  offences believing one or more will be committed
  that act will encourage or assist one or more
  of them.
• Actus reus
• Doing an act capable of encouraging
• Mens rea
• Belief one offence will be committed
• Belief Ds act will assist/encourage one offence
• Belief or recklessness as to Es mens rea for one
  of the offences
• Belief or recklessness as to consequences or
  circumstances of one offence

27
Attempt by omission?

• CA suggests that cannot have attempted murder by
  D trying to divert emergency services from V whom
  he has injured
• Nevard
• Why? This looks like an act by D.

28
Solicitation to Murder Abu Hamza

• Incitement or solicitation of murder triable here
  even if
• V is foreigner
• D is foreigner
• Incitee is a foreigner
• Proposed killing is to be committed abroad

29
Causing/allowing death of child etc

• D must be member of same household as V in
  frequent contact with V (s.5(4)).
• V must be at a significant risk of serious
  physical harm (s.5(6)) Significant is an
  ordinary English word Mujuru
• (i) Causing death
• Unlawful act (ie offence s.5(5))
• (ii) Allowing death
• Death from unlawful act
• D aware of/ought to have been aware of risk
• D failed to take such steps as he could
  reasonably have been expected to take to protect
  V from the risk

30
Infanticide

• There is no requirement that all the ingredients
  of an offence of murder be proved before a
  defendant could be convicted of infanticide
  contrary to s.1(1) of the 1938 Act. /Art 1
  Infanticide Act (NI) 1939
• "notwithstanding that the circumstances were such
  that but for this Act the offence would have
  amounted to murder",
• Notwithstanding means despite, not provided
• Gore (2007)

31
Corporate Manslaughter

• Corporate Manslaughter and Corporate Homicide Act
  2007
• Too late!
• Too little symbolic but will it work?
• Senior managers ill defined
• Duty concept unnecessary exclusions too wide
• Too complex
• Duty, civil law, exclusions

32
Offences Against the Person

• Meachen
• D who causes abh/gbh will not be guilty if
• He has genuine belief that V consented to assault
  
• D intends no harm greater than assault
• D not reckless as to greater harm than assault
• What level of harm was caused
• what level of harm was intended/foreseen
• does V consent in fact to the level intended
  foreseen?
• Is consent to that level of harm in that activity
  valid?

33
Kidnap

• Hendy Freegard
• D who takes and carries V away by fraud not
  guilty of kidnap unless
• D also deprived V of her liberty
• Ds fraud sufficient to vitiate consent?

34
Art 10 Sexual Offences (NI) Order 2008

• Consent
• Bree
• Where V is intoxicated and sexual activity occurs
  the question is whether V retained capacity to
  choose
• H
• It was for the jury, not the judge, to decide,
  on the basis of the evidence called, whether,
  the complainant had the capacity to consent
  and/or in fact consented to intercourse or not.

35
Frauds and consent to sex

• Jheeta
• Deception as to the reason for the act is not
  sufficient to trigger s 76
• Nature?
• Purpose?
• What does purpose mean in cases of sexual
  conduct?
• Should parliament have distinguished penile
  penetration cases from others?

36
Deception as to purpose

• Piper (2007)
• V thought she was modelling D thought otherwise
• Devonald (2008)
• D causes 16 year old to engage in sex on a
  webcam. V thinks D is a 20 year old busty blonde
  D is a 31 year old vengeful father.

37
Obscenity

• Hamilton
• Outraging public decency can be committed even if
  no one saw what D was doing.
• Provided there were indeed others present, and
  Ds conduct was capable of being seen by them.

38
Indecent child images

• Protection of Children (NI) Order 1978
• Harrison
• H possessed images if
• he knew that any images he accessed would be
  copied made in terms of legislative language
  and stored automatically
• and
• knew the likelihood that in accessing certain
  sites, illegal material would in this way be
  accessed (ie pop up).

39
Dishonesty offences

• Theft and dishonesty rare example of a case in
  which no reasonable tribunal could conclude not
  dishonest Gohill v DPP
• Robbery does not require proof that V was
  actually put in fear. Otherwise the commission of
  the offence would turn on the courage of V.
• But is it necessary for V to apprehend that force
  will be used?
• Where the allegation is that D put any person in
  fear of being then and there subjected to force,
  in that form of the offence, it would seem to be
  a necessary element.

40
Money Laundering or handling

• Rose
• D acquired a childs motor bike
• D claims not criminal property since he does not
  have an interest in it if stolen
• CA- thief acquires a limited interest in the
  property
• Can be liable under s 329 for possession of
  criminal property.

41
Fraud Act 2 glitches

• Section 11 does not work in cases where D makes
  unauthorised use of a credit card to obtain
  services.
• There must be a failure to pay
• No transitional jurisdictional provisions seem to
  have been included.
• If D commits a deception offence abroad before
  1st Jan 2007 1993 Act seems not now to apply

42
Fraud Act 2 glitches

• Section 11 does not work in cases where D makes
  unauthorised use of a credit card to obtain
  services.
• There must be a failure to pay
• No transitional jurisdictional provisions seem to
  have been included.
• If D commits a deception offence abroad before
  1st Jan 2007 1993 Act seems not now to apply

43
Public Order

• Police cell is not a home R v Francis
• Racially aggravated offences are
• (i) desirable to reflect the qualitatively
  distinct harm
• (ii) capable of commission by use of the words
  bloody foreigners R v Rogers
• Racial and Religious Hatred Act 2006 creates
  offences akin to inciting racial hatred

44
Blasphemy

• The offence will be established only if what is
  done or said is such as to induce a reasonable
  reaction involving civil strife, damage to the
  fabric of society or their equivalent.

45
Weapons

• Deyemi Firearms Act
• Rejected defence argument that D should be
  allowed to prove that he was not aware of the
  nature of the article he possessed.
• Weaver
• Prohibited weapon is necessarily a firearm though
  not necessarily a lethal barrelled weapon

46
Weapons

• Salih
• Possession for self defence
• if D was acting in self-defence at the moment
  when he was alleged to be in possession of a
  firearm, then not guilty.
• But if the possession with intent to endanger
  life was alleged to have occurred at some time
  before that moment and at a time when he or she
  was not in immediate fear of attack, then, the
  defence was not available.

47
Terrorism

• New Protocol
• Section 1 of the Terrorism Act 2000 offences
  involving threat of action designed to influence
  a government of a country other than the United
  Kingdom (s.1(4))
• Includes dictatorships such as Libya

48
Terrorism

• Section 57 - Zafar
• S 57 to be read restrictively
• Applies only where
• D possess an article
• Which gives rise to reasonable suspicion
• That he intends it to be used
• for the purpose of commission/preparation etc of
  act of trerrorism.

49
Road Safety Act 2006

• A person is to be regarded as driving without due
  care and attention if (and only if) the way he
  drives falls below what would be expected of a
  competent and careful driver.
• regard shall be had not only to the circumstances
  of which he could be expected to be aware but
  also to any circumstances shown to have been
  within the knowledge of the accused.

50
Road Safety Act 2006

• S 20 - causing death by careless or
  inconsiderate driving (5 yr max).
• 21(1) creates offences of causing death by
  driving when
• unlicensed,
• disqualified
• uninsured
• (2 yrs max)

51
Computer Misuse

• Denial of service attacks may be prosecuted under
  CMA 1990 DPP v Lennon
• Computer Misuse Act extended by Police and
  Justice Act 2006
• Unauthorised act with intent/recklessness as to
  impairing operation of computer
• Making or supplying articles for use in computer
  misuse offence