Transcript Presentation

Developments in Criminal Law
David Ormerod
Sources of Criminal Law
• Pepper v Hart (that a Govt Minister’s
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
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
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 V’s voluntary act breaks the chain
is “fundamental”
• D not liable for s 23 OAPA as V’s act breaks
chain of causation.
• No unlawful act manslaughter charge.
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 V’s vein.
• Nothing said casts doubt on gross negligence
manslaughter – still available if D leaves V in
difficulty
• Empress Cars – restricted to environmental
crimes.
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
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.
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 lifethreatening injury (‘duress’).
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
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)
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
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
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?
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)
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.
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
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?
(ii) What does fundamentally different mean?
(iii) What effect has a change of mens rea by P?
1. 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 V’s death?
If yes, guilty of murder. If no, not guilty of murder.
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 D’s mind?
• D denied defence under s 10 because
undercover officer claims to be under 13
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?
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
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
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 E’s state of mind
– Mens rea as to consequences and
circumstances of the full offence
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 D’s act will assist/encourage one offence
– Belief or recklessness as to E’s mens rea for one of the
offences
– Belief or recklessness as to consequences or
circumstances of one offence
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
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
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)
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
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
1. What level of harm was caused
2. what level of harm was intended/foreseen
3. does V consent in fact to the level intended
foreseen?
4. Is consent to that level of harm in that activity
valid?
Kidnap
• Hendy Freegard
• D who takes and carries V away by fraud
not guilty of kidnap unless
• D also deprived V of her liberty
• [D’s fraud sufficient to vitiate consent?]
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.
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?
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.
Obscenity
• Hamilton
• Outraging public decency can be
committed even if no one saw what D was
doing.
• Provided there were indeed others
present, and D’s conduct was capable of
being seen by them.
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).
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.
Money Laundering or handling
• Rose
• D acquired a child’s 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.
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
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
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
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.
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
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.
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
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.
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)
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