Syllabus ………………………………………………………………………………………………………. 1
Module Specification …………………………………………………………………………………… 2
LearningExperience……………………………………………………………………………………..3 Booklist………………………………………………………………………………………………………. 5
Structure/Revision Handout…………………………………………………………………………… 7
Introduction to Criminal Law and Human Rights …………………………………………….. 10
Substantive Criminal Law with Lecture Titles and Comprehensive Materials ……… 20
Glossary with Case Outlines………………………………………………………………………….. 200
Tutorial Programme with Exam Questions and Revision Exercises……………………… 222
Theft …………………………………………………………………………………………………………… 170
CRIMINAL LAW SYLLABUS
This Criminal Law course is covered in 14 weeks if you are a full time student and in eight months if you are part time. The following is only a guide to the areas we will be covering. We do not have time to cover ALL criminal law topics in the text books.
- General Principles and elements of crime, i.e. Actus Reus and Men Rea. Transferred malice. Coincidences of Actus Reus and Mens Rea.
- Omissions liability
- Strict Liability (This topic will be studies by the student).
- Mens Rea. Insertion Recklessness. Gross negligence
- Constructive Manslaughter-
- Voluntary manslaughter
- Diminished Responsibility
- Gross Negligent Manslaughter
- Non-fatal Offences Against the Person
- Self Defense and Prevention of Crime
- Duress and Necessity
- Mistake and Intoxication
- Attempted Offices
- Secondary Parties
- Deception OPTIONAL
- Making Off without Payment.
|Module Title:||Criminal Law|
|j Semester/Term||Full-time: Semester One|
|Availability:||Part-time: Semester One & Two|
|Named Programme||Bachelor of Laws|
Student Numbers: Module SummaryThis module will look at substantive criminal offend
as constructed by the legislature and juicy a consider how these inter-relate with rules governing criminal defenses and capacity. It examine the and consistency of legal principle in the legislative and judicial construction and interpretation of criminal law.
1.Aims of the Module :
To enable students to understand the main principles of English Criminal Law and to apply legal rules to solve legal problems.
(What will students know and be able to do by the end of the module)
Students will be able to:
1. Critically appraise the rules and principles of criminal law.
2. Recognize and evaluate the relevant facts of a criminal law problem.
3. Demonstrate an ability to apply criminal law rules and principles to a criminal law problem.
4. Critically analyze the concepts of blame and harm.
5. Undertake independent legal research.
6. Communicate effectively in writing.
|* Characteristics of Context||* Responsibility|
Responsibility Ethical Understanding L04Knowledge &AnalysisSynthesis/CreativityEvaluationL’nderstanding LO1
L04Psycho-motorSelf Appraisal/Planning &Problem
1. General principles of criminal liability.
2. Fatal and non-fatal offences against the person.
3. Property offences.
4. Inchoate offences and accessorial liability.
5. Excusatory and justificatory defenses.
4Teaching and learning methods:
25%Tutors and External ExaminersExamination2 hrs + 15 mins reading time2 hrs + 15 mins reading time
February (f/t)75%Tutors and External Examiners
Pass requirements: (e.g. overall pass’ in module or pass in each component)
The regular use of a good text book is absolutely essential.
Smith & Hogan Criminal Law, 9th edition, Butterworths, 1999.
Smith & Hogan Criminal Law, Cases and Materials, 7th edition, Butterworths, 1999.
Purchase of a statute book is entirely voluntary.
You will be expected to read case law at its primary source.
You are advised to check The Times, The Guardian and The Independent on a regular basis for their law reports and general coverage of contemporary criminal law issues. Tabloid newspapers’ do not provide the same type of coverage and should therefore be ignored.
The Criminal Law Module you will study is a very expansive one, encompassing many offences, defenses and ideas.
There are however general points that I can make at this stage.
- You will be examined by way of a 2 hour paper. There is an additional 15 minutes for reading.
- Candidates will be supplied with copies of the Theft Act.
- Candidates must answer 3 questions from a choice of 6. All questions carry equal marks. The exam comprises 75 % of your Crime mark.
- The other 25 % is from an assessed essay.
THE SPECIES OF CRIMINAL LAW QUESTION
There are, essentially two types of questions. These are:
- The essay question
- the problem question
Sometimes a question may be divided up into two parts (parts (a) and (b)). Part (a) may be an essay question, whilst part (b) is a problem question – allocation of marks will be indicated. This means that the candidate must strive to develop his/her legal skills to answer both types of questions. However we will examine many past exam questions in our seminars and tutorials together with exam technique.
STRUCTURE OF A CRIMINAL LAW ANSWER
Most examination questions raise more than one legal issue that you are required to deal with. Your answers should:
1.Identify the issues raised by the question. This gives shape to answers and indicates to examiner area of law in question.
2.Deal with issues one at a time as they arise in the course of problem.
Again forms coherent shape and is where u trance is important and where study and revision pays off.
3.If answer to an issue rests on a statutory provision (Homicide Act 1957 S(3)), cite that provision and show its relevancy (expand where necessary).
4.If no statute but common law interpretation, cite the relevant case or cases to show how applicable to answer.
Always underline cases. Stick to principles of cases NOT unnecessary facts. Cite only relevant cases to make your point. If you cannot remember names use some facts to illustrate, examiner will recognize meaning.
5.Having dealt with relevant issues, summaries in such a way that you answer the question.
In many cases relevant points made in your answer will earn you valuable marks as against offering specific advice.
General points in law answer.
1.Underline important facts.
(a) cases used
(b) pieces of legislation
2.Write as neat as you can.
3.Space out your answer ie. separate paragraph for say each point.
4.Quality NOT Quantity.
Relevancy very important.
Unnecessary facts of cases do not earn marks. Stick to principles to illustrate your answer.
EXAMPLE OF A REVISION LIST ON CRIMINAL LIABILITY
1. Who bears the burden of proof in a criminal trial?
2. What is meant by “nulla poena sine lege”?
3. What is meant by “actus non facit reum nisi mens sit rea”?
4. What is “automatism”?
5. In what circumstances will automatism NOT result in a complete acquittal?
6. What is meant by a “disease of the mind”?
7. What is the significance of the internal/external distinction?
8. Who decides whether a condition amount to a disease of the mind?
9. Is a condition arising from “hypoglycaemia” a disease of the mind? Give reasons and authorities.
10. Is somnambulism a disease of the mind? Give reasons and authority.
11. Name three crimes for which intention and intention alone will suffice.
12. How is intention defined?
13. What is direct intent? Define with cases.
14. What is oblique intent?
15. What is meant by recklessness?
16. What is the difference between Cunningham and Caldwell recklessness?
17. To which offence does Caldwell recklessness apply?
18. To which does Cunningham apply?
19. What is the Caldwell loophole?
20. What is meant by a crime of strict liability?
21. What crimes will mistake induced by voluntary intoxication excuse?
22. What is meant by a crime of specific intent?
INTRODUCTION ON CRIMINAL LAW
1. WHAT IS A CRIIVIE AND HOW DO YOU KNOW WHETHER GIVEN CONDUCT IS OR IS NOT A CRIME?
Very unusually there is no definition in English Law as to what is a crime. The best that can be offered is to say that criminal activity by way of a criminal offence is conduct which may be followed by criminal proceedings in the criminal courts resulting, if guilt is proven, in sentence and punishment imposed by the state.
This definition begs the question, how does society know that certain forms of conduct will attract criminal proceedings. The answer seems to be that we, as given individuals, can find out for ourselves and that ignorance of the law is no excuse.
Adultery in England cannot be followed by criminal proceedings because it is not a crime to take lovers.
But sexual intercourse with a woman who does not consent is a crime. The offence is rape.
The legal rules which state that certain forms of conduct shall attract criminal proceedings can be found either in the Common Law of England or in Statute or in regulations made by a minister of government under the authority of a statute.
The crime of murder in England is a common law offence; one which has been defined by judges. But theft is defined in the Theft Act 1968 as:
“A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it. “
2. WHAT ARE THE BASIC RULES OF CRIIWNAL LAW AND CRIMINAL PROCEDURE?
1.It is the role of the police or other government agencies to investigate alleged criminal activity (e.g. local trading standards officers, environmental health officers, her majesty customs and excise etc).
The police gather evidence (pieces of the jigsaw puzzle) to prove the alleged offence. Once investigations are completed all the evidence is passed on to the Crown Prosecution Service (C.P.S). Since the Prosecution of Offences Act 1985 the final decision on whether to prosecute lies with the C.P.S. whose head is the Director of Public Prosecutions (the D.P.P.). If there is sufficient proof of criminal activity the C.P.S. will prosecute the offender; providing the case has a good chance of success and it is in the public interest to do so.
2.All criminal cases begin life in the magistrates court. Up to 98 % of them are completely dealt with by local magistrates courts. If the offence is of a serious nature (i.e. murder) it will start life in the magistrates court and via committal proceedings, will be tried in the Crown Court before judge and jury.
The main reason why serious offences are dealt with before the judge and jury in the Crown Court is because the judge has unlimited powers to punish whereas the magistrate has limited powers and the jury system has historical significance relating to offenders being given the right to be judged by their own peers for serious offences.
3.Types of Offences
(i) Indictable offences – serious – Crown Court.
(ii) Summary offences – less serious – Magistrates Court only.
(iii) Offences triable either-way, either before the Crown Court judge and jury or before the magistrate. Here the offender has a choice provided he is warned of the consequences. He has a choice unless the magistrates themselves decide he should be tried on indictment.
4. Criminal offences are the creation of the state therefore, with the exception of very few private prosecutions, it is the state or agencies of the state that prosecute.
Criminal cases are usually named either as R (Rex or Regina) v Offender (accused) or D.P.P. v Accused. Therefore, R v Smith is a criminal case where the crown is prosecuting the alleged offender.
Also where a government agency prosecutes the named prosecutor could be, e.g. named Trading Standards Officers Department or individual named officer. Also Her Majesty’s Customs and Excise etc.
5.Why the so-called alleged offender?
Throughout the web of English criminal law runs the golden thread.
A person, the defendant, the accused is innocent until the contrary is proved. Everyone is innocent in the eyes of the law until guilt can be established. In England the burden of proof rest on the prosecution, except in cases of insanity and diminished responsibility and other exceptions created by statute, where the roles are reversed.
The prosecution bears the onus and burden of proof to establish that the allegation is true, the accused person does not have to prove her/his innocence. And the prosecution must prove its case beyond a reasonable doubt. If there is any reasonable doubt in a criminal case the accused is set free.
See Professor Paul Dobson’s article. Note:
See Lord SankeX in
Woolmington v Director of Public Prosecution (1935) 1 A.E.R. The victim has very little say in the prosecution.
This could be a period of imprisonment, a fine imposed by the court, a probation order, a community service order, curfew orders, supervision orders or absolute or conditional discharge, there are a few more.
7.Ideals for the Criminal Law
Nulla Poena Sine Leg e -Maxim of Law
“A person should not be made to suffer any criminal penalty by way of punishment except for a clear breach of existing criminal law”. This means that
(a) That law should be precise and well defined within the common law or legislation.
(b) There should be no crimes created by retrospective legislation.
(c) There should be no wide interpretation of criminal law and any ambiguity should be resolved in favour of the accused.
(d) Narrow definitions with certain precise terms of law should always be formulated.
See Shaw v D.P.P. 1961
8. Lawyer are Human: They are Not Infallible
Summa, Trials and Appeals System
(a) Magistrates Court – summary trial no jury
(i) Stipendiary – District Judge
(ii) Lay bench – Justices of the Peace
(b) Crown Court -Appeal by defendant in front of judge
(i) Appeal against sentence.
(ii) Against conviction on a not guilty plea.
(c) Division Court of High Court (Q.B.D.) minimal of 2 judges
(i) Appeal against excess jurisdiction by the magistrate either by prosecutor or accused – by way of case stated.
(d) House of Lords – On point of law
Leave must be granted
Either side may appeal
(e) Human Rights Act – October 2000.
EUROPEAN HUMAN RIGHTS
THE EUROPEAN CONVENTION ON HUMAN RIGHTS (ECHR)
This is totally separate from the European Union and European Community Law. The European Convention on Human Rights was drawn up in 1950 as a result of World War II and concerns itself with the protection of individual human rights and freedoms, not with economic matters. The UK ratified the Convention in 1951, and it became binding on those states which had ratified it in 1953.
SCOPE OF THE CONVENTION
The most important Articles of the ECHR are:
Article l: the right to life
Article 3: the prohibition of torture, and degrading or inhuman treatment
Article 4: the prohibition of slavery and forced labour
Article 5: the right to liberty and security
Article 6: the right to a fair trial
Article 7: the prohibition of retrospective criminal offences
Article 8: the right to respect for private and family life
Article 9: freedom of thought, conscience and religion
Article 10: freedom of Expression
Article 11: freedom of assembly and association Article 12: the right to marry
Article 14: prohibition from discrimination
There are in addition 2 Protocols which have provided new rights since the ECHR was originally drawn up.
The First Protocol introduced
– the right to peaceful enjoyment of one’s possessions
– the right to education
– the right to take part in free elections by secret ballot
The Fourth Protocol introduced the right to freedom of movement within a state and the right to leave any country. This Protocol was not ratified by the UK in order to prevent the movement of Northern Ireland terrorists within the UK.
THE EUROPEAN COURT OF HUMAN RIGHTS
There were originally two institutions associated with European Human Rights: the European Commission of Human Rights, which investigated alleged breaches of the Convention by governments. If it was unable to negotiate a solution between the individual and his/her government, then the matter was referred to the European Court of Human Rights (ECHR). The Commission now no longer exists as a separate body. The ECHR sits in Strasbourg (France) and is now the sole body which rules on breaches of human rights. Its decisions are binding and there is no appeal. Although there is no means of enforcement, states which have ratified the Convention undertakes to abide by its rulings. As a result of a ruling the state concerned is often obliged to change its domestic law.
It comprises 21 judges, of whom 7 normally hear each case. The Court can not only make a finding that a state is in breach of the Convention, it can also award damages or “other satisfaction” to the complainant.
Since 1966, 60 petitions have been brought against the UK. Of the 49 cases decided before 1994, the UK lost 31 and won 18. A number of petitions are withdrawn when the Government has agreed to take action in a particular case or change the law.
THE HUMAN RIGHTS ACT 1998
Having ratified the ECHR did not mean that the UK was bound by it. The UK did not incorporate the Convention into UK law until 3 October 2000, when the Human Rights Act 1998 came into force.
Advantages of incorporation:
Improved access for the ordinary person. Instead of going to Strasbourg, which often takes years, each citizen is able to enforce his/her rights directly before the domestic courts.
- Better remedies. The Strasbourg remedies were often too late and ineffective.
- Avoidance of conflict between domestic and international law. See for example the case of Abdulaziz v UK  7 EHRR 471
- A clear and unambiguous citizens’ charter
Disadvantages of incorporation:
- The Convention is still not entrenched
- The Convention is outdated in some respects. It does not include some new environmental, social and economic issues.
- It is loosely drafted in comparison with domestic law.
9.Trials On Indictment and Appeals System
(a) Magistrates Court – Committal proceedings.
(b) Crown Court – Trial on indictment before judge and jury.
(c) Court of Appeal (Criminal Division)
Appeal by accused only.
(i) Against conviction – on point of law, no leave required.
(ii)Against conviction – on point of law and or fact (mixed) leave required.
(iii)Against sentence – leave required.
NB: Following an acquittal in Crown Court. The Attorney General may ask question of C. A. on point of law to clarify the law. OR
Attorney General may appeal against sentence say on a lenient sentence imposed by Crown Court.
(d) House of Lords – Appeals on point of law
(i) Either side may appeal.
(ii) Ct of A certifies points of public interest.
(iii) Attorney Generals reference may reach H.L.
House of Lords
For Trials on
Indictment Court of Criminal Appeal
DO NOT MISSTATE THE BURDEN OF PROOF
By Paul Dobson, Visiting Professor of Law,
Anglia Polytechnic University
In all my years as an examiner in criminal law by far the most common error I have come across is a misstatement of the burden of proof. Many students and regrettably a few misguided lecturers consider it unimportant for a student of criminal law to understand the basic rule as to the burden of proof.
A well structured criminal law course, however, will begin with a statement of the basic rule established in Woolmington v DPP (1935). As Lord Sankey put it in that case: Throughout the web of the English criminal law one golden thread is always
to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt.
His Lordship acknowledged exceptions
(a) in the case of the defence of insanity and
(b) whenever Parliament enacted a statutory exception.
Putting aside these two exceptions, the student answering a criminal law examination should never state that defendant must `prove’ anything.
Actus reus and mens rea
It is fair to say that students do not so often fall into the `burden of proof’ error when dealing with matters of actus reus and mens rea. They usually, and correctly, state that X (or whoever is the suspect identified in the problem set) is not guilty unless the prosecution can prove that X both had the mens rea and committed the actus reus. Even here, however, the classic misstatement sometimes occurs.
Consider an examination question which sets out a murder scenario in which X has shot someone dead but in which, according to the question, X claims that he had been mistaken and had thought that the target at which he was shooting was not a person but a tree stump. An examination candidate’s answer might include the following sentence: `X must prove that he thought the target at which he was aiming was a tree stump. In that case he did not have the menses for murder, since his intention was to shoot a tree stump and he did not intend to kill or cause .’ That is plain wrong as to the burden of proof. It is not true that `X must prove’ his mistake. Another examination candidate might put it slightly differently: `If X proves that he thought the target at which he was aiming was a tree stump …’ This is almost as bad. It implies that X has to prove his mistake – and this is still plain wrong. The fact is that the prosecution has to prove that X intended to kill or intended to cause gbh. This means that the prosecution has to prove (beyond all reasonable doubt) that he did not make the mistake he claims he made. One absolutely accurate way for an examination candidate to put the matter would he to omit all reference to the burden of proof and to write: `If X thought the target at which he was aiming was a tree stump, then he lacked the menses for murder since in aiming at a tree stump he will not have had the intention to kill or the intention to cause. The moral for the criminal law examination candidate is that to refer to the defendant ‘proving’ something is very dangerous, except when dealing with insanity or a situation (such as diminished responsibility) where statute expressly places the burden of proof on the accused.
If, despite that advice, the candidate wishes to incorporate a reference to the burden of proof, then in the examination question scenario already posed, the candidate would need to write something like: `If the jury think that X may have believed he was aiming at a tree stump, then they cannot be satisfied beyond all reasonable doubt that he intended to kill or intended to cause gbh. In that case he cannot be guilty of murder.’ This accurately states the burden of proof and also the standard of proof (beyond all reasonable doubt).
If the jury think X may have thought he was shooting at a tree stump, then clearly the prosecution has not persuaded the jury beyond all reasonable doubt that he intended to kill or to cause gbh. This sort of reference to the burden (and standard) of proof is not normally expected of undergraduates (or CPE students) taking an examination in criminal law. It is one thing, however, to note that the candidate is not expected to state the burden (and standard) of proof. It is quite unacceptable, as warned above, for the candidate to state it and get it wrong. Thus the candidate is advised, apart from cases of insanity and situations where statute expressly puts the burden of proof on the accused, to adopt the following rule of thumb: never refer to the defendant ‘proving’ something.
This advice is found by candidates particularly difficult to follow where they are dealing with a defence. Of course the scenario above (where X is claiming he thought the target he was aiming at was a tree stump) is m one sense one where the defendant is putting up a defence (i.e., his mistake). The mistake, however, is one which, if he made it, means that he lacked the mens rea for the crime (in this case murder – though incidentally he might nevertheless have the mens rea for manslaughter). It is well known that the prosecution must prove the defendant’s mens rea and it is easy therefore to accept that in order to obtain a conviction for murder in this scenario the prosecution must prove that X did not make the mistake he claims that he made. There are other matters, however, which are truly defences. Provocation, self-defence and duress are three prime examples. Each of these is a defence in die sense that, even though the accused is proved to have committed the actus reus with the requisite mens rea, the accused is nevertheless, because of his defence, not guilty of the crime (though in the case of provocation the accused, though not guilty of murder, will he guilty of manslaughter). It is therefore easy and tempting, but still wrong and dangerous, to think of each of these defences in terms of what the accused must `prove’. It is dangerous because, again, the accused does not have to prove anything. In provocation, the accused does not have to prove that he was provoked and that a reasonable man could have reacted that way. In self-defence the accused does not have to prove that he was under attack or threat of attack and that the force he used was reasonable. In duress the accused does not have to prove that he was the victim of a threat of serious injury or death and that a person of reasonable firmness would have succumbed to the threat. If at his trial the accused raises one of these defences, the burden of proof rests on the prosecution to negative the defence. Take self-defence as an example and add in the rule of law that in looking at the defence of self-defence the court must view the facts as the accused believed them to be Beckford (1987). Suppose the examination question tells you that Bill was in a restaurant and stabbed his victim with a knife and that Bill is now charged with wounding with intent to cause gbh (contrary to the Offences Against the Person Act 1861, s1.8). Suppose the question states that Bill claims that he had mistakenly believed that he was about to be attacked by his victim together with another ‘thug’ in the restaurant. Bill does not have to prove any of that story. One perfectly satisfactory way of setting out an answer to the self-defence element of the question is, as suggested above, to leave out all reference to the burden of proof. Thus one could write: `If Bill made the
mistake he claims, then, assuming that the mistake was not a drunken one, Bill is entitled to be judged on the facts as he mistakenly believed them to be (Beckford (1987)). In that case two issues arise. First, was the use of force reasonably necessary to ward off the perceived attack? If so, secondly, was the force used reasonable force to protect himself? If there was no easy means of escape, that would give added weight to the idea that the use of force was necessary. If Bill did what he instinctively felt to he necessary in the immediacy of the perceived imminent attack, that is most potent evidence that he used no more than reasonable force (Palmer (1971)). If he used no more force than was reasonably necessary to protect himself from an attack which he perceived to be imminent, then he is entitled to be acquitted on grounds of self-defence.’ Do not, for heaven’s sake, preface this last sentence with the words `If he proves that …’! An examination candidate who really wants to incorporate the burden and standard of proof into that answer, could make the last sentence read something like: `If the jury think that Bill may have believed he was about to he attacked and they consider that he may have used no more force than was reasonably necessary to protect himself from that perceived attack, then Bill will be entitled to an acquittal on grounds of self defence.’ To put it another way, the prosecution has the burden of negativing the defence and of doing so beyond all reasonable doubt. In this scenario, that means that the prosecution must prove, beyond all reasonable doubt, either that Bill did not make the mistake or else that the force used by him was more than was reasonably necessary to protect himself from the perceived attack. If he may have made the mistake and may have used reasonable force, the jury have a reasonable doubt and thus the prosecution has failed to discharge the burden of proof.
The purpose of this article is not to frighten criminal law students into mastering how to state correctly in all scenarios the burden and standard of proof. Rather it is to suggest that marks will be lost if the burden and standard of proof are wrongly stated. It is, incidentally, right and proper that marks should in that case be deducted. The rules on the standard and burden of proof should he taught and learnt in every criminal law course. They are so fundamental to the operation of the criminal law that without them a student can hardly claim to have covered the basics of the subject.
In the case of insanity criminal law students are normally expected to state the burden and standard of proof. This is one of those exceptional cases where the burden falls on the accused to establish the defence. Where the accused pleads insanity, the defence will therefore fail unless the accused shows that it is more likely than not that he falls with the M’Naghten rules, for example, that (it is more likely than not) he was suffering from a defect of reason due a disease of the mind such that he did not know the nature and quality of his act. The standard which applies in each of those exceptional cases where the burden of proof fails on the accused is that the accused has to prove the defence `on a balance of probabilities’ which is easier to do than if he had to prove it `beyond all reasonable doubt’. The latter is the standard applying (i.e., in the vast majority of issues) when the burden of proof rests on the prosecution.
In those exceptional cases where statute puts the burden of proof on the accused, the position is just the same as in the defence of insanity. Thus the defence of diminished responsibility, in respect of which s2 of the Homicide Act 1957 puts the burden of proof on the accused, will fail unless the accused establishes that it is more likely than not that `he was suffering from such abnormality of the mind … as substantially impaired his mental responsibility for his acts …’.
Student Law Review
As a background to the area of criminal law and criminal liability, and to prepare yourself for what is to come in the next two years in crime, you are asked to read Part I of Smith and Hogan Criminal Law – General Principles. Pages 1-26 inc.
Chapter I deals with Crime and Sentence
Chapter II Definitions of a Crime
Chapter III Classification of Offences
THE ELEMENTS OF CRIMINAL LAW
GENERAL INTRODUCTION TO COURSE
Smith and Hogan 9th Ed., chapters 4, 5, 6 should be read in the following weeks, as well as the glossary and notes in the module study guide. Cases are essential reading.
The elements of criminal law are:
(1) The Actus Reus
(2) Mens Rea
(1) THE ACTUS REUS – VOLUNTARINESS
The prosecution must prove the actus reus of each offence which has taken place and at the time the defendant’s act (conduct) was voluntary.
A person’s act must be his own willed conduct in the sense that he controlled his muscular movement. If a person is made to act forcefully by some outside agent then, in law, it cannot be said to be his voluntary act.
Alternatively if a person acts as an automaton without control of his senses because of some internal or external manifestation of his mind. He may be said to have acted involuntary.
The concept of automatism in relation to the voluntary act is a very important factor.
Persons who deserve punishment because they willed their conduct should be compared with persons who could not control their actions, therefore are or should not be deserving of punishment.
Lord Denning in
“Bratty v Att Gen for Northern Ireland” AC 386 HL 1963 and Lord Diplock in
R v Sullivan 1983 2 AER 673 H-LDS
Note also the courts special verdict imposed on those who do not know what they have done is wrong because of a special inherent condition.
The criminal law system is concerned with the attribution of responsibility to those who are perceived to be deserving of punishment.
It is generally believed that those who act involuntarily do not deserve punishment nor would their punishment serve any useful purpose. Thus, an individual who lacks control over his actions (an automaton) is not, generally, regarded as being responsible for the consequences of those actions and incurs NO criminal liability.
However, where he is responsible for the condition, where it is self induced, he may be
guilty of an offence.
1. Special treatment of automatism for disease of the mind
2. The legal treatment of involuntary conduct
Criminal Procedure (Insanity and Unfitness to Plead) Act 1991. Special Verdict Cases to be read:
Att. Gen Ref No2 1992
Bratty v A-G for N.IRL 1963
R v Quick 1973
R v Kemp 1956
R v Charlson 1955
Broome v Perkins 1987
Rabey 1977 (CANADA)
R v T 1990
AUTOMATION AND INSANITY
(a) For criminal liability to follow the conduct or actions of the D must be voluntary. If this physical behaviour is involuntary then generally there will be no criminal liability. However, as we shall see, if the automatism is caused by a `disease of the mind’ then the D will be regarded as legally insane and, although technically `not guilty’ will not go free. Such an individual is subjected to mandatory commitment, namely, indefinite detention `at Her Majesties pleasure’. Consider the following situations:
In HILL v BAXTER (1958) it was stated that purely reflex movements of the arms and legs caused by an attack by a swarm of bees would not be voluntary.
‘ Although a concussed person is not necessarily completely unconscious his actions will be considered involuntary.
In the case of QUICK (1973) dicta was expressed to the effect that a person who commits a crime while under hypnotic influence would not be guilty by reason of automatism.
In the Australian case of COGDON (1951) the D whilst sleepwalking axed her daughter to death. She was acquitted on the grounds that her actions were not voluntary. But see BURGESS (1991).
This condition is caused by a low level of blood sugar which may develop when a diabetic consumes insufficient food. The condition can cause confusion, poor co-ordination and, sometimes, aggressive behaviour. In QUICK (1973) and BAILEY (1983) it was held that a D could not be said to be acting voluntarily during a hypoglycaemic episode and so generally would be entitled to an acquittal on the basis of automatism.
Until recently it was generally accepted that no criminal liability would follow if D performed criminal acts during the physical conclusions of an epileptic fit. Automatism was the appropriate verdict.
However in SULLIVAN (1983) the actions of the D during an epileptic fit were regarded as having been caused by a `disease of the mind’. The House of Lords ruled, in other words, that D during his epileptic fit, was legally insane. It was regarded as irrelevant that the mental impairment was only temporary. The House of Lords held that an acquittal on grounds of automatism should be reserved for cases where the involuntary conduct was caused by `some external factor such as a blow on the head causing concussion or the administration of an anaesthetic for therapeutic purposes’. Where the cause of the mental impairment was internal, as it clearly is with epilepsy, the insanity verdict was appropriate.
(b) Involuntary conduct preceded by fault
If it was the defendant’s own fault that brought on the involuntary conduct the law will not allow him to escape liability.
e.g. in the case of BAILEY (1983) a case involving a diabetic, it was held that D will be liable for an appropriate crime of basic intent if he knew that by failing to take precautions against a loss of consciousness there was a risk he would endanger others.
… Every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that to establish a defence on the ground of insanity it must be clearly proved that, at the time of the committing of the act, the party accused was 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.
Thus there are two lines of defence:
(i)If, because of a disease of the mind D suffered from a defect of reason such that he did not know the nature and quality of his own act.
(ii)If, because of a disease of the mind D suffered from a defect of reason such that he did not know that his act was wrong.
Bratty v. A.-G. for Northern Ireland,  AC 386 (House of Lords)
The appellant was convicted of the murder by strangulation of an eighteen year-old girl and his appeal was dismissed by the Court of Criminal Appeal of Northern Ireland. The defences raised at the trial were: (1) the accused was in a state of automatism;
(2) his mental condition was so impaired that he was incapable of forming an intent to kill; and
(3) he was insane.
(1) there were in law two types of automatism, namely insane and non-insane automatism, and a judge was only under a duty to leave the issue of automatism of either type to the jury where the defence had laid a proper foundation for so doing by adducing positive evidence in respect of it, which was a question of law for the judge to decide;
(2) where, as here, the only cause alleged for the “unconscious act” in question was the same as that which formed the basis of the defence of insanity, i.e., a defect of reason caused by disease of the mind, namely psycho-motor epilepsy, and that cause was rejected by the jury in considering the defence of insanity there could be no room for the alternative defence of automatism, either insane or non-insane, and the trial judge was right in not leaving that defence to the jury;
(3) the appellant must be deemed to have been a sane and responsible person at the time of the killing, and since there were no grounds for the view that he lacked intent to kill, there was no issue of manslaughter to be left to the jury. LORD DENNING, in his judgment stated that no act is punishable if it is done involuntarily. But the category of involuntary acts is very limited, so limited that until recently there was hardly any reference in the English books to the so-called defence of automatism. The decision of the Court of Criminal Appeal in Northern Ireland was affirmed. See also A.-G. for Northern Ireland v. Gallagher.
R. v. Quick, R. v. Paddison  3 All ER (Court of Appeal, Criminal Division)
Quick, a charge nurse at a mental hospital, was charged with assault occasioning actual bodily harm, and Paddison, a state enrolled nurse at the said hospital, with aiding and abetting him. About 4 p.m. one day, Green, a paraplegic spastic patient, unable to walk, was sitting in a ward at the hospital watching television. At the time Quick was on duty and Paddison, who had gone off duty at 2 p.m., was still present in the ward. Half an hour later Green had sustained two black eyes, a fractured nose, a split lip and bruising of his arm and shoulders. The medical evidence showed that the injuries could not have been self-inflicted. In evidence Quick said that he had been a diabetic since the age of seven and on the morning of the day in question he had taken insulin as prescribed by his doctor; he had then had a small breakfast and no lunch. Thereafter, before the assault took place, he had been drinking, the drinks including whisky and a quarter of a bottle of rum. He pleaded not guilty on the ground of automatism but the judge ruled that the evidence could only be relied on to support a defence of insanity since it indicated that he was suffering from a defect of reason from disease of the mind within the M’Naghten Rules and he changed his plea to guilty. Addison was also convicted. The convictions were quashed by the Court of Appeal which held that, in relation to Quick:
(1) in order to sustain a defence of insanity on the ground that he was suffering from a defect of reason from disease of the mind, an accused had to show a malfunctioning of the mind caused by disease; a malfunctioning of the mind of transitory effect caused by the application to the body of some external factor, such as violence, drugs, including anesthetics, alcohol and hypnotic influences, could not be said to be due to disease.
(2) The mental condition from which he had been suffering had not been caused by his diabetes but by the use of insulin prescribed by his doctor; the alleged malfunctioning of his mind had therefore been caused by an external factor and not by a bodily disorder in the nature of a disease and he was entitled to have his defences of automatism left to the jury. See also R. v. Clarke; Bratty v. A.-G. for Northern Ireland.
R. v Kemp  3 All ER 249 (Bristol Assizes)
Kemp suffered from arteriosclerosis and one day he suddenly struck his wife with a hammer causing her serious injury. Usually he was a very devoted husband and was not conscious of what he was doing when he picked up the hammer or when he struck his wife with it. Held arteriosclerosis is a disease of the mind within the M’ Naughten Rules and Kemp was insane. Also, the condition of the brain is irrelevant, and so is the question whether the disease is curable or incurable, or whether it is temporary or permanent. The law is not concerned with the origin of the disease or the cause of it, but simply with the mental condition which brought about the act. See also R. v. Charlson.
R. v. Charlson,  1 All ER 859 (Chester Assizes)
A father struck his ten-year-old son on the head with a mallet and threw him out of the window, causing him grievous bodily harm. There was no evidence of provocation or motive. The father was charged with
(i) causing grievous bodily harm to his son with intent to murder him,
(ii) causing grievous bodily harm to his son with intent to cause grievous bodily harm, and
(iii) unlawfully and maliciously inflicting grievous bodily harm on his son. BARRY, J:, directed the jury:
“In relation to the first two charges it is necessary for the prosecution to prove the intention alleged in the indictment. On the third charge you have not to consider these questions of intention. There the question is whether the accused knew what he was doing when he struck the blows. If he struck his son with the mallet, knowing what he was doing, and by those blows caused injuries, then he is guilty of the third charge. If he did not know what he was doing, if his actions were purely automatic and his mind had no control over the movement of his limbs, if he was in the same position as a person in an epileptic fit and no responsibility rests on him at all, then the proper verdict is `not guilty’ of all the three charges.” The jury returned a verdict of “not guilty” on all three charges. But see R. v. Kemp.