Criminal Law Full Study Pack

Criminal law
Study pack
2010
LLB 2650010
Diploma in Law 2690010
BSc Accounting with Law/Law with Accounting 2770101
BSc Management with Law/Law with Management 2770101
page 2 University of London International Programmes
The items in this study pack were selected by the authors of the Criminal law subject guide:
uu Mary Luckham, Assistant Director, University of London Laws Programme

uu Norman Baird, Editor, Criminal Law Online (www.criminallawonline.com)
uu Julia Fionda, Professor of Law, Kingston University.
With thanks for location of originals and scanning to Carolyn Malsher, Robert Tarbuck and the
University of London Library.
The items in this study pack are principally reproduced under licence from the Copyright Licensing Agency.
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Criminal law Study pack page 3
Contents
Subject guide
chapter
1 1 Textbook of criminal law Chapter 1: ‘Crime and the criminal law’, pp.36–41,
by Glanville Williams . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2 2 Textbook of criminal law Chapter 3: ‘Intention’, pp.70–74, by Glanville Williams . . . 11
3 ‘Language barrier’ by Nigel Hanson . . . . . . . . . . . . . . . . . . . . . . . . . . 17
3 4 Extract from ‘Insanity, automatism, and the burden of proof on the accused’
by Timothy H. Jones . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
5 Criminal law theory and doctrine, Chapter 4 ‘The actus reus’ pp.75–77
by Andrew Simester and Robert Sullivan . . . . . . . . . . . . . . . . . . . . . . . 34
6 Criminal law theory and doctrine, Chapter 4 ‘The actus reus’ pp.114–117
by Andrew Simester and Robert Sullivan . . . . . . . . . . . . . . . . . . . . . . . 38
4 7 Lord Lane’s judgment in R v Stone; R v Dobinson [1977] QB 354, [1977]
2 All ER 341, [1977] 2 WLR 169, 64 Cr App R 186, 141 JP 354 . . . . . . . . . . . . . . 44
8 European Convention on Human Rights and Fundamental Freedoms . . . . . . . . 50
5 9 Textbook of criminal law Chapter 16: ‘Causation’, pp.381–382, by Glanville Williams . 52
10 ‘Criminal causation and the careless doctor’ by John E. Stannard . . . . . . . . . . . 55
6 11 Lord Bingham’s speech in R v G and another [2003] UKHL 50 . . . . . . . . . . . . . 63
12 European Convention on Human Rights and Fundamental Freedoms . . . . . . . . 72
13 Extract from Ackner LJ’s judgment in Attorney General’s reference
(No. 4 of 1980) [1981] 2 All ER 617 . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
7 14 Extract from the judgment in R v Malcherek; R v Steel [1981] 2 All ER
422, 422 –429 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
15 Extracts from Re A (children) [2000] 4 All ER 961 . . . . . . . . . . . . . . . . . . . . 81
16 Extract of the judgment from Lamb [1967] 2 All ER 1282 . . . . . . . . . . . . . . . 86
17 Extract from R v Misra; R v Srivastava [2004] EWCA Crim 2375 . . . . . . . . . . . . . 88
18 Judgment from Powell & Daniels; English [1999] 1 AC 1 . . . . . . . . . . . . . . . . 92
9 19 Extract from R v Ireland and Burstow [1998] AC 147 . . . . . . . . . . . . . . . . . . 94
20 Extract from the Law Commission: Offences Against the Person Bill 1998 . . . . . . 96
21 ‘Should more matches end in court?’ by Simon Gardiner . . . . . . . . . . . . . . 100
10 22 Extract from Crown Prosecution Service Guidance to Prosecutors . . . . . . . . . . 104
23 Extract from Judicial Studies Board Specimen Directions . . . . . . . . . . . . . . 109
24 Extract from R v Savage; R v Parmenter . . . . . . . . . . . . . . . . . . . . . . . 111
11 25 Criminal law: texts and materials by C.M.V. Clarkson and H.M. Keating . . . . . . . . 139
26 Setting the boundaries: Reforming the law on sex offences . . . . . . . . . . . . . 149
27 Protecting the public: Strengthening protection against sex offenders
and reforming the law on sexual offences . . . . . . . . . . . . . . . . . . . . . . 166
28 ‘The Sexual Offences Act 2003: (1) Rape, Sexual Assaults and
the Problems of Consent’ by J. Temkin and A. Ashworth . . . . . . . . . . . . . . . 175
14 29 Director of Public Prosecutions v Armstrong [2000] Crim LR 379 . . . . . . . . . . . 195
18 30 Lloyd [1992]: Case Comment by Professor J. C. Smith . . . . . . . . . . . . . . . . . 200
31 Criminal Damage Act 1971, Section 10 . . . . . . . . . . . . . . . . . . . . . . . . 203
32 Extract from R v Steer [1987] 2 All ER 833 . . . . . . . . . . . . . . . . . . . . . . . 205
1 Textbook of criminal law Chapter 1: ‘Crime and the criminal

law’, pp.36–41
Glanville Williams
(London: Stevens and Sons, 1983) second edition [ISBN 0420468609]
Staff and students of the University of London International

Programmes are reminded that copyright subsists in this extract and
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Reproduced by the University of London International Programmes,

2010.
Scanning authorised by the DIrector of the Undergraduate Laws

Programme (designated person).
Criminal law Course (LLB, Diploma).
This material relates to the Criminal law subject guide, Chapter 1.

2 Textbook of criminal law Chapter 3: ‘Intention’, pp.70–74
Glanville Williams



2010.


3 ‘Language barrier’
Nigel Hanson
Law Society’s Gazette LSG 2004, 101(23), pp.16–17.



2010.

This material relates to the Criminal law subject guide, Chapter 2

4 Extract from ‘Insanity, automatism, and the burden of proof

on the accused’
Timothy H. Jones
Law Quarterly Review 111 (JUL), pp.497–509 (1995).



2010.


Read the whole of section V and VI.
5 Criminal law theory and doctrine, Chapter 4, ‘The actus reus’

pp.75–77
Andrew Simester and Robert Sullivan

(Oxford: Hart Publishing, 2007) third edition [ISBN 9781841137056 ]



2010.


6 Criminal law theory and doctrine, Chapter 4, ‘The actus reus’

pp.114–117
Andrew Simester and Robert Sullivan

(Oxford: Hart Publishing, 2007) third edition [ISBN 9781841137056 ]



2010.


7 Lord Lane’s judgment in R v Stone; R v Dobinson [1977] QB

354, [1977] 2 All ER 341, [1977] 2 WLR 169, 64 Cr App R 186,
141 JP 354

R v Stone; R v Dobinson [1977] QB 354, [1977] 2 All ER 341, [1977] 2 WLR 169, 64 Cr
App Rep 186, 141 JP 354 Court of Appeal, Criminal Division
Geoffrey Lane LJ read the following judgment of the court.
On June 18, 1976, at Sheffield Crown Court before Boreham J. and a jury the two
appellants were convicted of manslaughter. The appellant Stone was sentenced to
three years’ imprisonment and the appellant Dobinson to 18 months’ imprisonment
suspended for two years; she was also made the subject of a supervision order. By
leave of the single judge, the appellant Stone now appeals against conviction and
sentence and the appellant Dobinson against conviction.
In 1972, at 75, Broadwater, Bolton-on-Dearne in Yorkshire, there lived three people. The
appellant Stone, an ex-miner now aged 67, widowed for 10 years, who is partially deaf,
almost totally blind and has no appreciable sense of smell; the appellant Dobinson,
now aged 43, who had been his housekeeper and mistress for some eight years, and
the appellant Stone’s son, Cyril, aged 34, who is mentally subnormal. The appellant
Stone is of low average intelligence; the appellant Dobinson is described as ineffectual
and somewhat inadequate.
There was an addition to that household in 1972. The appellant Stone had a younger
sister called Fanny, about 61 at the date of her death. She had been living with another
sister called Rosy. For some reason, probably because Rosy could not tolerate her
any longer, she had decided to leave. She came to live at no. 75, where she occupied
a small front room. She was in receipt of a pension of GBP11.60 a week and gave her
brother GBP1.50 towards the rent. She was eccentric in many ways. She was morbidly
and unnecessarily anxious about putting on weight and so denied herself proper
meals. She would take to her room for days. She would often stay in her room all day
until the two appellants went to the public house in the evening, when she would
creep down and make herself a meal.
In early Spring 1975 the police called at the house. Fanny had been found wandering
about in the street by herself without apparently knowing where she was. This caused
the appellants to try to find Fanny’s doctor. They tried to trace him through Rosy, but
having walked a very considerable distance in their search they failed. It transpired
that they had walked to the wrong village. Fanny herself refused to tell them the
doctor’s name. She thought she would be ‘put away’ if she did. Nothing more was
done to enlist outside professional aid.
In the light of what happened subsequently there can be no doubt that Fanny’s
condition over the succeeding weeks and months must have deteriorated rapidly. By
July 1975 she was, it seems, unable or unwilling to leave her bed and, on July 19, the
next-door neighbour, Mrs Wilson, gallantly volunteered to help the female appellant to
wash Fanny. She states:
On July 19 Mrs Dobinson and I went to Fanny’s room in order to clean her up. When I went
into the room there was not a strong smell until I moved her. Her nightdress was wet and
messed with her own excreta and the dress had to be cut off. I saw her back was sore, I
hadn’t seen anything like that before. I took the bedclothes off the bed. They were all wet
through and messed. And so was the mattress. I was there for about two hours and Mrs
Dobinson helped. She was raw, her back, shoulders, bottom and down below between her
legs. Mrs Dobinson appeared to me to be upset because Fanny had never let her attend to
her before. I advised Mrs Dobinson to go to the social services.
Emily West, the licensee of the local public house, the Crossed Daggers, gave evidence
to the effect that during the whole of the period, from July 19 onwards, the appellants
came to the public house every night at about 7 p.m. The appellant Dobinson was
worried and told Emily West that Fanny would not wash, go to the toilet or eat or
drink. As a result Emily West immediately advised Dobinson to get a doctor and when
told that Fanny’s doctor lived at Doncaster, Emily West suggested getting a local one.
It seems that some efforts were made to get a local doctor, but the neighbour who
volunteered to do the telephoning (the appellants being incapable of managing the
instrument themselves) was unsuccessful.
On August 2, 1975, Fanny was found by Dobinson to be dead in her bed. The police were
called. On arrival they found there was no ventilation in the bedroom, the window had
to be hammered open and the bed was so sited that it was impossible to get the door
fully open. At one side of the bed on a chair was an empty mineral bottle and on the
other chair a cup Under the bed was an empty polythene bucket. Otherwise there was
no food, washing or toilet facilities in the room. There was excrement on the bed and
floor. It was a scene of dreadful degradation.
The pathologist, Dr Usher, gave evidence that the deceased was naked, emaciated,
weighing five stone and five pounds, her body ingrained with dirt, lying in a pool
of excrement. On the bed on which she was lying were various filthy and crumpled
bed-clothes, some of which were soaked in urine. There was excrement on the floor
and wrapped in newspapers alongside the bed. There was a tidemark of excreta
corresponding with the position in which her body was lying. At the mortuary Dr.
Usher found the deceased’s body to be ulcerated over the right hip joint and on
the underside of the left knee; in each case the ulceration went down to the bone.
There were maggots in the ulcers. He found pressure sores over the back of the right
shoulder, the outside of the left kneecap to the underside of the left knee, over the
right hip joint, to the inner aspect of the left shin and on the left instep where the
body had been lying. Such ulcers could not have been produced in less than two to
three weeks. The ulcers were due to the general poor condition of the skin and the
protruding bones which would have had a greater effect upon her than a normal
person. She was soaked in urine and excreta. Her stomach contained no food products
but a lot of bile stained fluid. She had not eaten recently. He found no natural disease.
The disinclination to eat was a condition of anorexia nervosa which was not a physical
condition but a condition of the brain or mind. She had been requiring urgent medical
attention for some days or even weeks. He said:
If two weeks prior to my seeing the body she had gone into hospital there is a distinct
possibility that they may have saved her; and three weeks earlier the chances would have
been good. If her condition on July 19 was no worse than that described by Mrs Wilson,
then her survival would have been probable.
He said that the cause of death was (1) toxaemia spreading from the infected pressure
areas (this could have been alleviated by keeping her clean); and (2) prolonged
immobilisation. There was no physical reason for her being immobile. Death was due
to immobilisation, which caused the pressure sores, and lack of food. Depression
might have caused the lack of mobility. The sores on the left knee he thought did not
develop in two weeks. Lack of ventilation would have aggravated the other matters.
With regard to the condition of the mattress, he thought it would take weeks to get
into that condition.
The prosecution alleged that in the circumstances the appellants had undertaken the
duty of caring for Fanny who was incapable of looking after herself, that they had, with
gross negligence, failed in that duty, that such failure caused her death and that they
were guilty of manslaughter.
The appellant Dobinson was seen by Detective Inspector Ashton on August 2, 1975. She
said, in answer to questions, that the deceased had been living in the state she was
found for months now, but that she had never complained. She said that the deceased
provided her own meals but if she wanted anything from the shops the deceased told
her. The deceased would only have biscuits and pop. She would not eat much else
because she said it made her fat. Mrs Wilson actually did the shopping and she, the
appellant Dobinson, signed the deceased’s pension book because the deceased did
not seem as though she could be bothered with anything. The appellant said she kept
telling Ted (the other appellant), but that he would not do anything. He just told her,
‘Leave it while tomorrow.’ She was asked why she did not get help and she replied,
‘I asked him to get a doctor. He said he had tried to, but because the deceased was
not on his panel the doctor wouldn’t come.’ When asked why she did not speak to
the lady next door or to Mrs Wilson’s daughter, who was a nurse, she is said to have
replied, ‘I daren’t. He is boss down there. I daren’t do anything unless he tells me. She
is not my sister, so I left it to him.’ When asked, ‘You are a woman and you go into her
bedroom. Your own common sense would tell you that she needed attention?’ She is
said to have replied, ‘She never complained so I didn’t bother.’ When asked, ‘Did you
change her bed or see she was washed?’ she replied, ‘About three weeks ago me and
Mrs Wilson gave her a wash down and tried to clean her up.’ When asked, ‘What did
you think of her at that time?’ she replied, ‘She was all sore and filthy.’ When asked why
she did not call someone she is said to have replied, ‘She didn’t complain, so I left her.’
In evidence she denied those parts of her statement which incriminated the appellant
Stone. She disputed that she said, ‘She dare not do anything without Ted’ and ‘he just
would not bother to do anything and he would say leave it while tomorrow.’ She also
denied that she said:
I know she never got out of bed to go to the toilet because she was too ill. She did what
she wanted in the bed. Anyway I kept telling him (the appellant Stone) to do something;
but all he would say was ‘tomorrow’ and he would not lift a finger to help her.
With regard to the words she was reported to have used, ‘I realised for the past two weeks
that she was not going to live, and I could see that she was filthy and smelt’ she said she
did not say that and added, ‘I may have said that I knew she was poorly.
The appellant Stone was interviewed subsequently. He was asked, ‘Did Gwen tell you
that Fanny was in a bad way?’ He replied, ‘Yes, but Fanny was very stubborn and would
not let anyone do for her.’ He was asked ‘If Gwen told you about Fanny’s condition,
why did you not get medical assistance?’ He replied, ‘I tried to get our doctor to come
but he would not. I also tried to find out who her doctor was but I could not.’ He was
asked, ‘Why did you not get an ambulance to take her to hospital?’ He replied, ‘I did
not think.’ He said:
I remember Gwen and Mrs Wilson going up to see her. They said she was in a baddish way.
I said, ‘We must do something.’ I do not remember whether there was any attempt to get
a doctor after that. I did not think she was dying. Previously she had gone to bed for long
periods of time, and she had then got up again and had been all right. I would ask her if
she was getting up but she always said, ‘When I am ready.’ I could not see her in the room
and I could not tell whether she was looking all right. I went up three or four days before
she died. I asked her, ‘Are you all right, Fanny’ and she said ‘Yes.’
There is no dispute, broadly speaking, as to the matters on which the jury must
be satisfied before they can convict of manslaughter in circumstances such as the
present. They are (1) that the defendant undertook the care of a person who by reason
of age or infirmity was unable to care for himself; (2) that the defendant was grossly
negligent in regard to his duty of care; (3) that by reason of such negligence the person
died. It is submitted on behalf of the appellants that the judge’s direction to the jury
with regard to the first two items was incorrect.
At the close of the prosecution case submissions were made to the judge that there
was no, or no sufficient evidence that the appellants, or either of them, had chosen to
undertake the care of Fanny.
That contention was advanced by Mr Coles before this court as his first ground of
appeal. He amplified the ground somewhat by submitting that the evidence which
the judge had suggested to the jury might support the assumption of a duty by the
appellants does not, when examined, succeed in doing so. He suggests that the
situation here is unlike any reported case. Fanny came to this house as a lodger.
Largely, if not entirely due to her own eccentricity and failure to look after herself or
feed herself properly, she became increasingly infirm and immobile and eventually
unable to look after herself. Is it to be said, asks Mr Coles rhetorically, that by the mere
fact of becoming infirm and helpless in these circumstances she casts a duty on her
brother and the appellant Dobinson to take steps to have her looked after or taken
to hospital? The suggestion is that, heartless though it may seem, this is one of those
situations where the appellants were entitled to do nothing; where no duty was cast
upon them to help, any more than it is cast upon a man to rescue a stranger from
drowning, however easy such a rescue might be.
This court rejects that proposition. Whether Fanny was a lodger or not she was a blood
relation of the appellant Stone; she was occupying a room in his house; the appellant
Dobinson had undertaken the duty of trying to wash her, of taking such food to her
as she required. There was ample evidence that each appellant was aware of the
poor condition she was in by mid-July. It was not disputed that no effort was made to
summon an ambulance or the social services or the police despite the entreaties of
Mrs Wilson and Mrs West. A social worker used to visit Cyril. No word was spoken to
him. All these were matters which the jury were entitled to take into account when
considering whether the necessary assumption of a duty to care for Fanny had been
proved.
This was not a situation analogous to the drowning stranger. They did make efforts
to care. They tried to get a doctor; they tried to discover the previous doctor. The
appellant Dobinson helped with the washing and the provision of food. All these
matters were put before the jury in terms which we find it impossible to fault. The jury
were entitled to find that the duty had been assumed. They were entitled to conclude
that once Fanny became helplessly infirm, as she had by July 19, the appellants
were, in the circumstances, obliged either to summon help or else to care for Fanny
themselves.
Mr Coles’ second submission presents greater difficulty. It is that the judge’s direction
on the nature of the negligence or recklessness required was wrongly stated. This is
how the matter was left to the jury:
Have the Crown proved that either or both of these defendants was guilty of gross neglect
of Fanny amounting to a reckless disregard for the health and wellbeing of that woman.
Do not place your judgment on the question of recklessness as to whether she died or not.
What has to be proved is not that, but that there was a reckless disregard for their duty of
care. It may well be that that will involve a consideration of what they thought would be
the consequences of their reckless disregard, if you found there was one. For example, if I
were in charge of a person and I was guilty of some major neglect, but I genuinely did not
appreciate that it would lead to any dire results, you would probably say, ‘That person is
not very bright, but I am not sure he is guilty of recklessness!
Then, at a later stage in the direction:
... were either or both of these defendants in grave neglect of that duty, were they reckless
or did they show a reckless disregard for their obligations. Again it depends to a large
extent on the extent of their knowledge of her condition; of their individual appreciation
of the need to act. It depends to some extent on their appreciation of the consequences
of inaction; it depends on the facilities which were available or which they could readily
have made available. Mr Stone says ‘nothing was done because I was not aware of the
gravity of the matter of the danger to Fanny’s life and of the situation. I did not know the
actual conditions in which my sister was lying.’ If that is true or if it may be true then you
will acquit him. If you are sure that he did know then you ask yourselves: what did he
do about it, and what could he have done ... You do not judge him on what you would
have done yourselves; but you take the man as you find him ... So far as Mrs Dobinson is
concerned ... did she do her incompetent best? Certainly if she did that, then you would
acquit her.
The appellants’ contention is that the prosecution in order to succeed must show
recklessness on the part of the defendant; that recklessness in this context means
foresight of the likelihood or possibility of death or serious injury and a determination
nevertheless to persist in the omission to provide care. We were referred to a number
of 19th century decisions which are historically interesting but of small practical
assistance. Mr Coles relied principally on the decision of this court in R v Lowe [1973] QB
702. In that case there were two counts, one alleging manslaughter of a child on the
grounds that the defendants’ cruelty alleged under the second count caused its death,
and the second count charging cruelty to a child by wilfully neglecting it so as to cause
unnecessary suffering or injury to health under section 1 (1) of the Children and Young
Persons Act 1933. The judge had directed the jury that if they found the appellant guilty
on the second count they must find him guilty under the first count of manslaughter,
even though they acquitted him of recklessness. That was held to be a misdirection.
Phillimore L.J., delivering the judgment of the court, went on to say, at p.709:
Now in the present case the jury negatived recklessness. How then can mere neglect,
albeit wilful, amount to manslaughter? This court feels that there is something inherently
unattractive in a theory of constructive manslaughter. It seems strange that an omission
which is wilful solely in the sense that it is not inadvertent, the consequences of which are
not foreseen by the person who is neglectful should, if death results, automatically give
rise to an indeterminate sentence ...
Mr Coles submits that that passage is support for his argument that there must
be an appreciation by the defendant of the risk of death or serious injury before a
conviction for manslaughter in these circumstances can result. We disagree. The court
is saying simply that there must be proved the necessary high degree of negligence,
and a direction which fails to emphasise that requirement will be defective. It is to
Andrews v Director of Public Prosecutions [1937] AC 576, that one must turn to discover
the definition of the requisite degree of negligence. Lord Atkin, at p.582, cites with
approval the words of Lord Hewart C.J. in R v Bateman (1925) 19 CrAppR 8, and goes on
to say, at p.583:
Simple lack of care such as will constitute civil liability is not enough; for purposes of the
criminal law there are degrees of negligence: and a very high degree of negligence is
required to be proved before the felony is established. Probably of all the epithets that can
be applied “reckless” most nearly covers the case. It is difficult to visualise a case of death
caused by reckless driving in the connotation of that term in ordinary speech which would
not justify a conviction for manslaughter: but it is probably not all-embracing for ‘reckless’
suggests an indifference to risk whereas the accused may have appreciated the risk and
intended to avoid it and yet have shown such a high degree of negligence in the means
adopted to avoid the risk as would justify a conviction.
It is clear from that passage that indifference to an obvious risk and appreciation of
such risk, coupled with a determination nevertheless to run it, are both examples of
recklessness.
The duty which a defendant has undertaken is a duty of caring for the health and
welfare of the infirm person. What the prosecution have to prove is a breach of that
duty in such circumstances that the jury feel convinced that the defendant’s conduct
can properly be described as reckless, that is to say a reckless disregard of danger to
the health and welfare of the infirm person. Mere inadvertence is not enough. The
defendant must be proved to have been indifferent to an obvious risk of injury to
health, or actually to have foreseen the risk but to have determined nevertheless to
run it.
The direction given by the judge was wholly in accord with those principles. If any,
criticism is to be made it would be that the direction was unduly favourable to the
defence. The appeals against conviction therefore fail.
As to sentence, it is submitted on behalf of the appellant Stone that a term of three

years was, in all the circumstances, excessive and that the difference in culpability
between the two appellants was not accurately reflected in the wide variation
between their sentences. It is clear that a sentence of immediate imprisonment
was unavoidable, if for nothing else at least to mark the public disapproval of such
behaviour. We think, however, that we are now able to extend some mercy to this
man who is greatly handicapped. We therefore propose to substitute a sentence of 12
months’ imprisonment for the three years ordered by the judge.
8 European Convention on Human Rights and Fundamental

Freedoms

Articles 2, 3 and 8
Article 2(1)
Everyone’s right to life shall be protected by law. No one shall be deprived of his life
intentionally save in the execution of a sentence of a court following his conviction of
a crime for which this penalty is provided by law.
Article 3
No one shall be subjected to torture or to inhuman or degrading treatment or
punishment.
Article 8(1)
Everyone has the right to respect for his private and family life, his home and his
correspondence.
Article 8(2)
There shall be no interference by a public authority with the exercise of this right
except such as is in accordance with the law and is necessary in a democratic society
in the interests of national security, public safety or the economic well-being of the
country, for the prevention of disorder or crime, for the protection of health or morals,
or for the protection of the rights and freedoms of others.
9 Textbook of criminal law Chapter 16: ‘Causation’,

pp.381–382
Glanville Williams



2010.


10 ‘Criminal causation and the careless doctor’
John E. Stannard
Modern Law Review 55, 4 (July 1992), pp.577–583.



2010.


11 Lord Bingham’s speech in R v G and another [2003]

UKHL 50

R v G and another [2003] UKHL 50

Lord Bingham Of Cornhill: My Lords,
1.  The point of law of general public importance certified by the Court of Appeal to be
involved in its decision in the present case is expressed in this way:
Can a defendant properly be convicted under section 1 of the Criminal Damage Act 1971
on the basis that he was reckless as to whether property was destroyed or damaged when
he gave no thought to the risk but, by reason of his age and/or personal characteristics the
risk would not have been obvious to him, even if he had thought about it?.
The appeal turns on the meaning of ‘reckless’ in that section. This is a question on
which the House ruled in R v Caldwell [1982] AC 341, a ruling affirmed by the House in
later decisions. The House is again asked to reconsider that ruling.
2.  The agreed facts of the case are very simple. On the night of 21-22 August 2000 the
appellants, then aged 11 and 12 respectively, went camping without their parents’
permission. In the early hours of 22 August they entered the back yard of the Co-op
shop in Newport Pagnell. They found bundles of newspapers which they opened up
to read. The boys then lit some of the newspapers with a lighter they had with them.
Each of them threw some lit newspaper under a large plastic wheelie-bin, between
which and the wall of the Co-op there was another similar wheelie-bin. The boys left
the yard without putting out the burning papers. The newspapers set fire to the first
wheelie-bin and the fire spread from it to the wheelie-bin next to the shop wall. From
the second bin the fire spread up under the overhanging eave, to the guttering and
the fascia and then up into the roof space of the shop until eventually the roof of the
shop and the adjoining buildings caught fire. The roof collapsed. Approximately £1m
worth of damage was caused. The appellants’ case at trial was that they expected
the newspaper fires to extinguish themselves on the concrete floor of the yard. It is
accepted that neither of them appreciated that there was any risk whatsoever of the
fire spreading in the way that it eventually did.
3.  An indictment was preferred against the appellants charging them with arson
contrary to section 1(1) and (3) of the Criminal Damage Act 1971. The particulars of the
offence charged were that they on 22 August 2000 ‘without lawful excuse damaged
by fire commercial premises belonging to … others being reckless as to whether such
property would be damaged’.
4.  Section 1 of the 1971 Act provides:
1.  (1) A person who without lawful excuse destroys or damages any property belonging to
another intending to destroy or damage any such property or being reckless as to whether
any such property would be destroyed or damaged shall be guilty of an offence.
(2)  A person who without lawful excuse destroys or damages any property, whether
belonging to himself or another -
(a)  intending to destroy or damage any property or being reckless as to whether any

property would be destroyed or damaged; and
(b)  intending by the destruction or damage to endanger the life of another or being

reckless as to whether the life of another would be thereby endangered;
shall be guilty of an offence.
(3)  An offence committed under this section by destroying or damaging property by fire
shall be charged as arson.’
Section 4(1) of the Act provides that a person guilty of arson under section 1 shall on
conviction on indictment be liable to imprisonment for life.
5.  The appellants stood trial before His Honour Judge Maher in March 2001. At the
outset of the trial, submissions were made on the meaning of ‘reckless’ in section 1(1)
since the appellants were charged with being reckless whether the premises would be
destroyed or damaged and not with intending to destroy or damage them. The judge
ruled (in effect) that he was bound to direct the jury in accordance with R v Caldwell
[1982] AC 341.
6.  This is what the judge did. He helpfully provided the jury with a typed copy of this
part of his direction and said:
‘If we look at this together, what the prosecution have to prove is: (1) the defendant
damaged by fire the building, the commercial premises, shown in the photographs; (2)
that the defendant in doing what he did, created a risk which would have been obvious to
an ordinary, reasonable bystander watching that the building, the commercial premises,
would be damaged by fire; and (3) that when he, meaning a defendant, did what he did,
either he had not given any thought to the possibility of there being such a risk, or having
recognised that there was some risk involved in doing what he did, nonetheless went on
and did the act. The word ‘risk’ which appears in paragraph 3 means, as will be apparent,
I hope, from the wording of paragraph 2, the risk that the building would be damaged by
fire. So, those are the matters which the prosecution have to prove.’
The judge pointed out that proof of the first of these matters was not in dispute. The
judge then addressed the second matter and continued:
That does not mean the boys are guilty of this offence, because it is questions nos 2 and
3 which are at the heart of this case. Question no 2: that the defendant, in doing what he
did, created a risk which would have been obvious to an ordinary, reasonable bystander
watching that the building, the commercial premises, would be damaged by fire. So, this
requires you to find as a fact on the whole of the evidence in the case, what did they do?
Having established that, this is the test that you will apply: first, focus upon the moment
when the two boys left the compound. Then, find as a fact, upon the evidence, what it
was that would have been visible to the reasonable bystander, the ordinary reasonable
bystander, looking on. Then, ask yourselves question no. 2: at that moment, having
determined that, would it have been obvious to that ordinary, reasonable bystander that
there was a risk that the fire would spread from paper, or papers, to bin, or bins, up to the
building? It is not necessary for the ordinary reasonable bystander to have foreseen in his
mind the full extent of the damage which in fact occurred because, as you will well know,
once fire takes hold, it is probably anybody’s guess where it is going to end up.
The ordinary, reasonable bystander is an adult. He does not have expert knowledge. He
has got in his mind that stock of everyday information which one acquires in the process
of growing up. This is why to leave this question to a jury of twelve is probably the best
tribunal that one could have for answering this question. You will notice also that we
are using the language, the vocabulary of risk - not certainty. When you answer this
question as to whether it would have been obvious to an ordinary reasonable bystander
watching that the fire, in effect, would spread as I have just explained it, the ages of these
defendants are irrelevant. Their good characters are irrelevant. No allowance is made by
the law for the youth of these boys or their lack of maturity or their own inability, if such
you find it to be, to assess what was going on. So, if it would have been obvious to an
ordinary, reasonable bystander that there was a risk of the fire spreading (as I have just
described) to the building, it is irrelevant that you say, ‘Well, we think this is a bit harsh. We
don’t think it would have been apparent to these boys, even though it might have been
apparent to an ordinary, reasonable bystander’. It is too bad. So, in that sense, when you
are answering this question, you leave wholly on one side everything you know about
these two young boys here because - I repeat - it is what would have been perceived by
the ordinary, reasonable bystander which is the test.
The judge observed:
Now, I say to you, quite frankly, that you may think this is a harsh test to apply to
youngsters, because no allowance is made for age and immaturity. Many people would
be sympathetic with you. But, it is my task to expound the law to you as it is, and it is
your duty to apply the law as it is – not as you might like it to be – to the facts of the case.
Sympathy can play no part in the answering of this question.
Now, I cannot tell you – or even begin to help you – and it would be quite wrong for me to
try and help you, with what the ordinary, reasonable bystander would not have perceived
as a risk in terms of the fire spreading from paper to bin, to building. You have heard the
evidence and you will decide.
The judge then directed the jury on the third of the matters he had listed:
Let me assume the prosecution have jumped hurdle no. 2. Hurdle no. 3 must also be
jumped, and here you see it is in two parts: that when he did what he did, either he had
not given any thought to the possibility of there being such a risk, or having recognised
that there was some risk involved in doing what he did, nonetheless he went on and did
the act.
Now, I begin with the second part of paragraph 3 which is a question that does concern
the state of mind of the two boys. If you were to say, ‘We are, all twelve of us, satisfied
so that we are sure that these boys when they started the fire and left the compound,
appreciated in their minds that there was some risk of the fire spreading from paper
to bin, to soffit, to building, and nonetheless went on and did what they did’, then it
is difficult to see how they could be anything other than guilty of this offence. It is not
primarily the way the prosecution put their case. As you know, to cut a long story short,
the boys have said to you, each of them, as they said in their second interview to the
police, that it never crossed their minds for a moment that there was this risk of the fire
actually spreading to the building itself. Now, it is a matter for you whether you believe
them, but I am going to proceed on the basis that you will say either that you are satisfied
that they --- that their minds did not perceive the risk of the fire spreading to the building,
or you will say, ‘Well, we can’t be sure that that serious finding can be made against them’.
If that is so, then the first part of paragraph 3 is satisfied - that they had not given any
thought to the possibility of there being such a risk - that is, a risk of the fire spreading, as
I have just described, to the building itself. You will see that if a defendant says, ‘I didn’t
give any thought whatsoever to the possibility of the fire spreading from what I had done
to a building itself’, that is no defence if question no 2 is answered by a jury against such
a person. So, pulling it all together – and I suspect that your deliberations may centre
around this – if you say, ‘Well, hurdle no. 1 is jumped, and we don’t think these young boys,
in their minds, gave any thought to the possibility of the fire spreading from paper, to
bin, to soffit, to building, … but, it would have been obvious to an ordinary, reasonable
bystander watching that the fire might spread to the building, and that the building might
be damaged by the fire’, then they are guilty of the offence.
7.  After the jury had retired on the afternoon of 21 March the judge made clear, in the
presence of the appellants, that ‘nothing unpleasant’ awaited them even if the jury
convicted. But the jury had difficulty reaching a verdict. Later that afternoon they asked the
judge why they should consider the risk as perceived by a reasonable person or layman. He
replied:
The answer to that lies in my task. My task is to give you directions on the law as it is, and it
is your task to apply the directions on the law as I have expounded it to you to the facts as
you find them. I am not free to give you a direction on the law which perhaps some of us
might like it to be; nor are you free to substitute your own view of what the law is for the
law as I have explained it to you. At the beginning of the trial you took an oath to try the
case on the evidence presented to you, and part of that involves taking the law from me.
That is my function.
Just to explain a little more to you, the Criminal Damage Act 1971 creates the offence of
criminal damage. It was not new; it has existed, as you know, for centuries. But, that is the
up-to-date statute. The higher courts – the House of Lords, in particular – The Law Lords
have given guidance to all courts as to how juries are to be directed as to the meaning of
the word ‘reckless’ in this context. That direction must be followed by trial judges because
I am no more free to invent the law, or to make it up as I go along, than anyone else is. It is
my task to do my best to identify the law, and to expound it to a jury clearly and accurately
so that the jury know what the relevant principles of law are. That is what I have done. That
is the task that every judge in every trial has. The jury must act upon the direction which
they are given. You may remember, I said that some may feel it is a harsh test, and there
are many who would be sympathetic to that view. But, sympathy does not permit me to
give you a direction on the law other than as it is.
Similarly, applying that direction means that you – if I may answer your question – must
consider the risk as perceived by a reasonable person or layman because that is the test;
that is the law which is applicable in this area.’
The judge went on to repeat his direction on the three matters the prosecution had
to prove. The jury were unable to agree on a verdict that afternoon. They returned
on another day and convicted. On receiving the verdict the judge adjourned the
proceedings for a pre-sentence report, but said:
For the benefit of whoever may speak to the preparer of the report, I am quite satisfied
that they did not intend to burn down the building. Indeed, the prosecution never alleged
that they so intended. I am quite satisfied in my mind that they subjectively did not
perceive a risk in their minds that the building would be burned down. As we know, the
question posed by the jury as to why they had to act upon the direction which I gave to
them strongly suggests to me - and this is the basis upon which I propose to proceed -
that the correct approach to sentence is that they have been convicted - this is the basis
upon which I propose to sentence - that the risk they created would have been perceived
by an adult; by a reasonable bystander as carrying with it a risk of damage to the building.
The judge expressed regret at the law he had felt bound to apply, and added:
I am satisfied in my mind that this is just one of those almost childish - maybe ‘prank’ is
too mild a word - which just went horribly wrong, and there, but for the grace of God, go
many people.
Members of the jury, with respect, it is irrelevant as to whether you share these
sentiments, but I see that some of you may do.
In due course the judge made a one year supervision order in the case of each
appellant. It was not suggested in argument before the House that the judge’s
directions to the jury were other than correct on the law as then understood and
applied.
8.  Section 51 of the Malicious Damage Act 1861 (24 & 25 Vict c 97) provided, so far as
relevant,
Whosoever shall unlawfully and maliciously commit any damage, injury, or spoil to or
upon any real or personal property whatsoever…the damage, injury, or spoil being to an
amount exceeding five pounds, shall be guilty of a misdemeanour…
The defendant in R v Pembliton (1874) LR 2 CCR 119 was charged under this section. He
had been fighting in the street and had picked up a large stone and thrown it at the
people he had been fighting with. The stone missed its human target but broke a
window causing damage of a value exceeding £5. The jury convicted the defendant,
although finding that he had not intended to break the window, and the recorder
referred the case to the Court of Crown Cases Reserved (Lord Coleridge CJ, Blackburn
J, Pigott B, Lush J and Cleasby B) which quashed the conviction. The words ‘unlawfully
and maliciously’ were very widely used in the 1861 Act and the issue on appeal was
whether the defendant had acted ‘maliciously’. Lord Coleridge CJ said (at page 122):
… it seems to me that what is intended by the statute is a wilful doing of an intentional

act. Without saying that if the case had been left to them in a different way the conviction
could not have been supported, if, on these facts, the jury had come to a conclusion
that the prisoner was reckless of the consequence of his act, and might reasonably have
expected that it would result in breaking the window, it is sufficient to say that the jury
have expressly found the contrary.
Blackburn J was of the same opinion:
The jury might perhaps have found on this evidence that the act was malicious, because
they might have found that the prisoner knew that the natural consequence of his act
would be to break the glass, and although that was not his wish, yet that he was reckless
whether he did it or not; but the jury have not so found, and I think it is impossible to say
in this case that the prisoner has maliciously done an act which he did not intend to do.
Thus the court interpreted ‘maliciously’ as requiring proof of intention, but were
inclined to accept that intention could be shown by proof of reckless disregard of
a perceived risk. This was also the approach followed in R v Welch (1875) LR1 QBD 23,
where the defendant faced charges of unlawfully and maliciously killing, maiming and
wounding a mare contrary to section 40(1) of the 1861 Act. The trial judge was held to
have been right to direct the jury to convict if they found that the defendant in fact
intended to kill, maim or wound the mare or, in the alternative, that he knew that
what he was doing would or might kill, maim or wound the mare and nevertheless did
what he did recklessly and not caring whether the mare was injured or not.
9.  The first eight sections of the 1861 Act all related to arson and all used the
expression ‘unlawfully and maliciously’. In the first edition of his Outlines of Criminal
Law published in 1902, Professor Kenny addressed the meaning of ‘maliciously’ with
particular reference to arson. He wrote (pages 163-165, footnotes omitted):
(a) ‘Maliciously.’ Burning a house by any mere negligence, however gross it be, is, as we
have seen, no crime; (an omission in our law which may well be considered as deserving
the attention of the legislature). Even the fact that this gross negligence occurred in the
course of the commission of an unlawful act, or even of a felonious one, will not suffice
to render the consequent burning-down indictable as an arson. For in any statutory
definition of a crime, ‘malice’ must, as we have already seen, be taken not in its vague
common law sense as a ‘wickedness’ in general, but as requiring an actual intention to
do the particular kind of harm that in fact was done. Consequently, if a criminal, when
engaged in committing some burglary or other felony, negligently sets fire to a house,
he usually will not be guilty of arson ….. But it must not be supposed that everyone who
has maliciously set fire to some article which it is not arson to burn, will necessarily
become guilty of arson if the fire should happen to spread to an arsonable building. For
when a man mischievously tries to burn some chattel inside a house, and thereby, quite
accidentally and unintentionally, sets fire to the house, this does not constitute an arson.
And even if his setting fire to this chattel inside the building was intrinsically likely to
result in setting fire to the building itself, he still will not necessarily be guilty of arson. For
it is essential to arson that the incendiary either should have intended the building to take
fire, or, at least, should have recognised the probability of its taking fire and have been
reckless as to whether or not it did so. Of course the mere fact that this probability was an
obviously manifest one will be strong evidence to warrant the jury in finding, if they think
fit, that the prisoner did, in fact, thus recognise the danger and regard it with indifference.
One of the cases cited by Kenny was R v Harris (1882) 15 Cox CC 75, where the charge
was of setting fire to a dwelling house. The judge, at page 77, directed the jury:
Again, if you think that the prisoner set fire to the frame of the picture with a knowledge
that in all probability the house itself would thereby be set on fire, and that he was
reckless and utterly indifferent whether the house caught fire or not, that is abundant
evidence from which you may, if you think fit, draw the inference that he intended the
probable consequences of his act, and if you draw that inference, then, inasmuch as the
house was in fact set on fire through the medium of the picture frame, the prisoner’s
crime would be that of arson.
This was consistent with the ratio of R v Child (1871) LR1 CCR 307 (also cited by Kenny)
where it was held that the defendant had not intended to set fire to a house and had
thought that what he was doing would not do so. Another case cited by Kenny was R
v Faulkner (1877) 13 Cox 550, decided in the Irish Court of Crown Cases Reserved. The
defendant had set fire to a ship while stealing rum from its hold. He had been boring a
hole by candlelight and some rum had spilled out and been ignited. It was conceded
that he had not intended to burn the vessel, and his conviction was quashed. Barry J
(at page 555) said:
[R v Pembliton] must be taken as deciding that to constitute an offence under the Malicious
Injuries to Property Act, section 51, the act done must be in fact intentional and wilful,
although the intention and will may (perhaps) be held to exist in, or be proved by, the fact
that the accused knew that the injury would be the probable result of his unlawful act,
and yet did the act reckless of such consequences.
10.  R v Pembliton was again relied on in R v Cunningham [1957] 2 QB 396. The defendant
in that case had wrenched a gas meter from the wall and stolen it. Gas had escaped.
He was charged under section 23 of the Offences against the Person Act 1861 with
unlawfully and maliciously causing a noxious thing, namely coal gas, to be taken by the
victim. He pleaded not guilty but was convicted. Giving the reserved judgment of the
Court of Criminal Appeal, Byrne J said (at page 399-400):
We have considered those cases [among others, R v Pembliton and R v Faulkner], and
we have also considered, in the light of those cases, the following principle which was
propounded by the late Professor C S Kenny in the first edition of his Outlines of Criminal
Law published in 1902 and repeated at p.186 of the 16th edition edited by Mr. J. W. Cecil
Turner and published in 1952: ‘In any statutory definition of a crime, malice must be taken
not 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
kind of harm might be done and yet has gone on to take the risk of it). It is neither limited
to nor does it indeed require any ill will towards ‘the person injured. The same principle is
repeated by Mr. Turner in his 10th edition of Russell on Crime at p. 1592.
That was accepted as an accurate statement of the law. In the course of his able
address, Mr Perry (for the Crown) pointed out, correctly, that the words quoted
had not appeared in the first (1902) edition written by Professor Kenny. It does not,
however, appear that the later summary misrepresents what the Professor had
written, quoted in paragraph 9 above.
11.  R v Mowatt [1968] 1 QB 421 arose from the robbery by the defendant of a victim
W. When W retaliated, the defendant struck him in the face. He was charged with
wounding with intent to do grievous bodily harm contrary to section 18 of the
Offences against the Person Act 1861, on which an alternative verdict of unlawful
wounding contrary to section 20 of that Act was open to the jury. The trial judge gave
no direction to the jury on the meaning of ‘maliciously’ and the jury convicted under
section 20. The defendant’s appeal against conviction on the ground of this non-
direction failed. In a judgment of the Court of Appeal (Diplock LJ, Brabin and Waller JJ)
reference was made to R v Cunningham [1957] 2 QB 396 and the court (page 425) cast
no doubt on the proposition that ‘maliciously in a statutory crime postulates foresight
of consequence’, but the court regarded Professor Kenny’s more general statement as
inapposite to the specific alternative statutory offences described in sections 18 and
20 (pages 425-426). The court held (page 426) that ‘maliciously’ imports an awareness
that an act may have the consequence of causing some physical harm to some
other person, even if the harm foreseen was relatively minor. The court ruled (pages
426-427):
But where the evidence for the prosecution, if accepted, shows that the physical act of
the accused which caused the injury to another person was a direct assault which any
ordinary person would be bound to realise was likely to cause some physical harm to the
other person (as, for instance, an assault with a weapon or the boot or violence with the
hands) and the defence put forward on behalf of the accused is not that the assault was
accidental or that he did not realise that it might cause some physical harm to the victim,
but is some other defence such as that he did not do the alleged act or that he did it in
self-defence, it is unnecessary to deal specifically in the summing-up with what is meant
by the word ‘maliciously’ in the section … In the absence of any evidence that the accused
did not realise that it was a possible consequence of his act that some physical harm
might be caused to the victim, the prosecution satisfy the relevant onus by proving the
commission by the accused of an act which any ordinary person would realise was likely
to have that consequence…
30.  That conclusion is by no means determinative of this appeal. For the decision in R

v Caldwell was made more than 20 years ago. Its essential reasoning was unanimously
approved by the House in R v Lawrence [1982] AC 510. Invitations to reconsider that
reasoning have been rejected. The principles laid down have been applied on many
occasions, by Crown Court judges and, even more frequently, by justices. In the
submission of the Crown, the ruling of the House works well and causes no injustice
in practice. If Parliament had wished to give effect to the intention of the Law
Commission it has had many opportunities, which it has not taken, to do so. Despite its
power under Practice Statement (Judicial Precedent) [1966] 1 WLR 1234 to depart from its
earlier decisions, the House should be very slow to do so, not least in a context such as
this.
31.  These are formidable arguments, deployed by Mr Perry with his habitual skill and
erudition. But I am persuaded by Mr Newman QC for the appellants that they should
be rejected. I reach this conclusion for four reasons, taken together.
32.  First, it is a salutary principle that conviction of serious crime should depend on

proof not simply that the defendant caused (by act or omission) an injurious result to
another but that his state of mind when so acting was culpable. This, after all, is the
meaning of the familiar rule actus non facit reum nisi mens sit rea. The most obviously
culpable state of mind is no doubt an intention to cause the injurious result, but
knowing disregard of an appreciated and unacceptable risk of causing an injurious
result or a deliberate closing of the mind to such risk would be readily accepted
as culpable also. It is clearly blameworthy to take an obvious and significant risk of
causing injury to another. But it is not clearly blameworthy to do something involving
a risk of injury to another if (for reasons other than self-induced intoxication: R v

Majewski [1977] AC 443) one genuinely does not perceive the risk. Such a person may
fairly be accused of stupidity or lack of imagination, but neither of those failings
should expose him to conviction of serious crime or the risk of punishment.
33.  Secondly, the present case shows, more clearly than any other reported case since
R v Caldwell, that the model direction formulated by Lord Diplock (see paragraph
18 above) is capable of leading to obvious unfairness. As the excerpts quoted in
paragraphs 6-7 reveal, the trial judge regretted the direction he (quite rightly) felt
compelled to give, and it is evident that this direction offended the jury’s sense of
fairness. The sense of fairness of 12 representative citizens sitting as a jury (or of a
smaller group of lay justices sitting as a bench of magistrates) is the bedrock on which
the administration of criminal justice in this country is built. A law which runs counter
to that sense must cause concern. Here, the appellants could have been charged
under section 1(1) with recklessly damaging one or both of the wheelie-bins, and they
would have had little defence. As it was, jury might have inferred that boys of the
appellants’ age would have appreciated the risk to the building of what they did, but
it seems clear that such was not their conclusion (nor, it would appear, the judge’s
either). On that basis the jury thought it unfair to convict them. I share their sense of
unease. It is neither moral nor just to convict a defendant (least of all a child) on the
strength of what someone else would have apprehended if the defendant himself
had no such apprehension. Nor, the defendant having been convicted, is the problem
cured by imposition of a nominal penalty.
34.  Thirdly, I do not think the criticism of R v Caldwell expressed by academics, judges

and practitioners should be ignored. A decision is not, of course, to be overruled or
departed from simply because it meets with disfavour in the learned journals. But
a decision which attracts reasoned and outspoken criticism by the leading scholars
of the day, respected as authorities in the field, must command attention. One need
only cite (among many other examples) the observations of Professor John Smith
([1981] Crim LR 392, 393-396) and Professor Glanville Williams (‘Recklessness Redefined’
(1981) 40 CLJ 252). This criticism carries greater weight when voiced also by judges as
authoritative as Lord Edmund-Davies and Lord Wilberforce in R v Caldwell itself, Robert
Goff LJ in Elliott v C [1983] 1 WLR 939 and Ackner LJ in R v Stephen Malcolm R (1984) 79
Cr App R 334. The reservations expressed by the trial judge in the present case are
widely shared. The shopfloor response to R v Caldwell may be gauged from the editors’
commentary, to be found in the 41st edition of Archbold (1982): paragraph 17-25, pages
1009-1010. The editors suggested that remedial legislation was urgently required.
35.  Fourthly, the majority’s interpretation of ‘reckless’ in section 1 of the 1971 Act was,
as already shown, a misinterpretation. If it were a misinterpretation that offended no
principle and gave rise to no injustice there would be strong grounds for adhering
to the misinterpretation and leaving Parliament to correct it if it chose. But this
misinterpretation is offensive to principle and is apt to cause injustice. That being so,
the need to correct the misinterpretation is compelling.
36.  It is perhaps unfortunate that the question at issue in this appeal fell to be
answered in a case of self-induced intoxication. For one instinctively recoils from
the notion that a defendant can escape the criminal consequences of his injurious
conduct by drinking himself into a state where he is blind to the risk he is causing
to others. In R v Caldwell it seems to have been assumed (see paragraph 18 above)
that the risk would have been obvious to the defendant had he been sober. Further,
the context did not require the House to give close consideration to the liability of
those (such as the very young and the mentally handicapped) who were not normal
reasonable adults. The overruling by the majority of R v Stephenson [1979] QB 695
does however make it questionable whether such consideration would have led to a
different result.
37.  In the course of argument before the House it was suggested that the rule in R v
Caldwell might be modified, in cases involving children, by requiring comparison not
with normal reasonable adults but with normal reasonable children of the same age.
This is a suggestion with some attractions but it is open to four compelling objections.
First, even this modification would offend the principle that conviction should depend
on proving the state of mind of the individual defendant to be culpable. Second, if the
rule were modified in relation to children on grounds of their immaturity it would
be anomalous if it were not also modified in relation to the mentally handicapped
on grounds of their limited understanding. Third, any modification along these lines
would open the door to difficult and contentious argument concerning the qualities
and characteristics to be taken into account for purposes of the comparison. Fourth, to
adopt this modification would be to substitute one misinterpretation of section 1 for
another. There is no warrant in the Act or in the travaux préparatoires which preceded
it for such an interpretation.
38.  A further refinement, advanced by Professor Glanville Williams in his article

‘Recklessness Redefined’ (1981) 40 CLJ 252, 270-271, adopted by the justices in Elliott
v C [1983] 1 WLR 939 and commented upon by Robert Goff LJ in that case is that a
defendant should only be regarded as having acted recklessly by virtue of his failure
to give any thought to an obvious risk that property would be destroyed or damaged,
where such risk would have been obvious to him if he had given any thought to the
matter. This refinement also has attractions, although it does not meet the objection
of principle and does not represent a correct interpretation of the section. It is, in
my opinion, open to the further objection of over-complicating the task of the jury
(or bench of justices). It is one thing to decide whether a defendant can be believed
when he says that the thought of a given risk never crossed his mind. It is another, and
much more speculative, task to decide whether the risk would have been obvious to
him if the thought had crossed his mind. The simpler the jury’s task, the more likely
is its verdict to be reliable. Robert Goff LJ’s reason for rejecting this refinement was
somewhat similar (Elliott v C, page 950).
39.  I cannot accept that restoration of the law as understood before R v Caldwell would
lead to the acquittal of those whom public policy would require to be convicted. There
is nothing to suggest that this was seen as a problem before R v Caldwell, or (as noted
above in paragraphs 12 and 13) before the 1971 Act. There is no reason to doubt the
common sense which tribunals of fact bring to their task. In a contested case based
on intention, the defendant rarely admits intending the injurious result in question,
but the tribunal of fact will readily infer such an intention, in a proper case, from all
the circumstances and probabilities and evidence of what the defendant did and said
at the time. Similarly with recklessness: it is not to be supposed that the tribunal of
fact will accept a defendant’s assertion that he never thought of a certain risk when all
the circumstances and probabilities and evidence of what he did and said at the time
show that he did or must have done.
40.  In his printed case, Mr Newman advanced the contention that the law as declared
in R v Caldwell was incompatible with article 6 of the European Convention on Human
Rights. While making no concession, he forebore to address legal argument on the
point. I need say no more about it.
41.  For the reasons I have given I would allow this appeal and quash the appellants’
convictions. I would answer the certified question obliquely, basing myself on clause
18(c) of the Criminal Code Bill annexed by the Law Commission to its Report ‘A Criminal
Code for England and Wales Volume 1: Report and Draft Criminal Code Bill’ (Law Com
No 177, April 1989):
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 it will occur;
and it is, in the circumstances known to him, unreasonable to take the risk.
12 European Convention on Human Rights and Fundamental

Freedoms

Article 6
1. In the determination of his civil rights and obligations or of any criminal charge
against him, everyone is entitled to a fair and public hearing within a reasonable
time by an independent and impartial tribunal established by law.  Judgment
shall be pronounced publicly but the press and public may be excluded from all
or part of the trial in the interests of morals, public order or national security in a
democratic society, where the interests of juveniles or the protection of the private
life of the parties so require, or to the extent strictly necessary in the opinion of the
court in special circumstances where publicity would prejudice the interests of
justice.
2. Everyone charged with a criminal offence shall be presumed innocent until proved
guilty according to law.
3. Everyone charged with a criminal offence has the following minimum rights:
a to be informed promptly, in a language which he understands and in detail, of

the nature and cause of the accusation against him;
b to have adequate time and facilities for the preparation of his defence;
c to defend himself in person or through legal assistance of his own choosing or,
if he has not sufficient means to pay for legal assistance, to be given it free when
the interests of justice so require;
d to examine or have examined witnesses against him and to obtain the

attendance and examination of witnesses on his behalf under the same
conditions as witnesses against him;
e to have the free assistance of an interpreter if he cannot understand or speak

the language used in court.
13 Extract from Ackner LJ’s judgment in Attorney General’s

reference (No. 4 of 1980) [1981] 2 All ER 617

Attorney General’s reference (No. 4 of 1980) [1981] 2 All ER 617.

Ackner LJ: The deceased was the fiancée of the accused and for some months
before her death they had lived together in a maisonette, consisting of two floors
of a house connected by two short flights of carpeted wooden stairs. The deceased
was employed locally and was last seen at work on January 17, 1979, at about 5 p.m.
Thereafter no one, other than the accused ever saw her alive again.
The deceased met her death on January 18, 1979, although this fact was not known
until over three weeks later when the accused so informed a friend. His account (given
on February 13), the first of a number, was that in the course of an argument on the
evening of January 17 he had slapped her on the face causing her to fall downstairs and
bang her head. He said that he had then put her to bed but discovered next morning
that she was dead. He then took her body to his home town and buried her.
On the following day (February 14) he gave his second account, telling the same friend
that after the deceased had ‘fallen downstairs’ he had dragged her upstairs by a piece
of rope tied around her neck. He subsequently cut up her body with a saw before
burying it. The next day, upon the advice of his friend, the accused went to see a
superior and gave an account similar to the one he had given his friend.
We now come to the statements which he made to the police. On February 27 having
consulted solicitors, the accused was interviewed by the police at his solicitors’ office.
He began by giving the police substantially the same account that he had given to
his friend and his superior but added that instead of burying the deceased he had
‘dumped’ the various parts of her body on a tip. At the police station later that day he
amplified his statement by saying that the incident when the deceased ‘fell downstairs’
occurred at about 7 p.m. on January 17 and that it was the following day, when he found
her motionless, that he pulled her upstairs by a rope around her neck and then cut up
her body in the bathroom. On the following day after much questioning by the police
he changed his account stating that everything had happened on Thursday, January
18, at about 7 a.m. This is what he then said happened. (i) He and the deceased had
an argument on the landing in the course of which each slapped the other, he seized
the deceased and shook her hard; she dug her nails into him and he pushed her away
instinctively, causing her to fall backwards over the handrail, down the stairs head-first
on to the floor. (ii) He went downstairs immediately to find her motionless and on a
very cursory examination discovered no pulse, and no sign of breath but frothy blood
coming from her mouth. (iii) Almost immediately thereafter he dragged her upstairs by
a rope tied around her neck, placed her in the bath and cut her neck with a penknife to
let out her blood, having already decided to cut up her body and dispose of the pieces.
He agreed that his previous account was untrue and he made a detailed voluntary
statement along the lines set out in (i), (ii) and (iii) above describing how subsequently
he had cut up and disposed of her body.
In the course of these interviews at the police station, after the accused had given his
revised account, the following conversation took place:
Officer: ‘How long was it from the time that she went backwards over the handrail to when
you started pulling her up the stairs with a piece of rope around her neck?’
Accused: ‘I went downstairs when she went backwards. I looked at her, tried her pulse. I
tried to lift her and she wee’d, so I put her down again. Then two girls went past (the glass
fronted door) so I covered the door with the blanket. Then I got the piece of rope and
pulled her up the stairs.’
Officer: When did you decide you were going to cut the body up and dispose of it?’
Accused: Just before I pulled her up the stairs.’‘

Later he was asked by the officer:
‘Is it correct that you hauled (her) to the bathroom, put her into the bath and then cut her
neck with a knife to let the blood out and these were all a continuous series of events?’ To
this the accused answered: ‘Yes, they all happened together’.
Subsequently the police discovered evidence which corroborated the accused’s

account of how, where and when he had cut up the body. They also found the saw he
had used and the shopkeeper who sold it to him. However, the body of the deceased
was never found, only some minute fragments of bone, which were discovered in
the maisonette. There was thus no expert evidence as to the cause of death. The
deceased died either as a result of being pushed and thus caused to fall backwards
over the handrail and backwards down the stairs head-first on to the floor, or by
being strangled with the rope, or having her throat cut. The Crown conceded that it
was not possible for them to prove whether the deceased died as a result of the ‘fall’
downstairs or from what the accused did to the deceased thereafter.
The indictment charged the accused with (i) manslaughter, (ii) obstructing the
coroner in the execution of his duty, and (iii) preventing the burial of a corpse.
The accused pleaded guilty to the third count, the Crown offered no evidence upon
the second and the trial proceeded upon the count of manslaughter.
At the close of the Crown’s case for the accused stated that he proposed to submit
that on the facts proved there was no case of manslaughter capable of going to jury.
It is not easy to follow from the transcript the exact basis of his submissions, but what
he appears to have been contending was that (a) it was not possible for the jury to be
sure what caused the deceased’s death and (b) whether the death was caused as a
result of her ‘fall’ down the stairs or from what the accused subsequently did, believing
her to be dead, in neither event was there a prima facie case of manslaughter.
The judge, although expressing his reluctance to accept that the accused could be in
a better position as a result of his dismembering the body of the deceased, appeared
to have been very concerned at what he described as ‘an insuperable problem of
sentencing,’ were the accused to be convicted of manslaughter. He expressed the
view that the real criminality of the accused’s behaviour was in disposing of the body,
a view which this court is unable to accept. These views appear to have influenced his
decision, which was to withdraw the case from jury and to direct an acquittal on the
ground that the Crown had failed to prove the cause of the death of the deceased.
On the above facts this reference raises a single and simple question, viz: if an accused
kills another by one or other of two or more different acts each of which, if it caused
the death, is a sufficient act to establish manslaughter, is it necessary in order to found
a conviction to prove which act caused the death? The answer to that question is ‘No,
it is not necessary to found a conviction to prove which act caused the death.’ No
authority is required to justify this answer, which is clear beyond argument, as was
indeed immediately conceded by Mr Chadwin on behalf of the accused.
What went wrong in this case was that made jury points to the judge and not
submissions of law. He was in effect contending that the jury should not convict of
manslaughter, if the death had resulted from the ‘fall,’ because the push which had
projected the deceased over the handrail was a reflex and not a voluntary action, as a
result of her digging her nails into him. If, however, the deceased was still alive when
he cut her throat, since he then genuinely believed her to be dead, having discovered
neither pulse nor sign of breath, but frothy blood coming from her mouth, he could
not be guilty of manslaughter because he had not behaved with gross criminal
negligence. What and the judge unfortunately overlooked was that there was material
available to the jury which would have entitled them to have convicted the accused
of manslaughter, whichever of the two sets of acts caused her death. It being common
ground that the deceased was killed by an act done to her by the accused and it
being conceded that the jury could not be satisfied which was the act which caused
the death, they should have been directed in due course in the summing up, to ask
themselves the following questions: (i) Are we satisfied beyond reasonable doubt that
the deceased’s ‘fall’ downstairs was the result of an intentional act by the accused
which was unlawful and dangerous? If the answer was ‘No’ then they would acquit.
If the answer was ‘Yes’ then they would need to ask themselves a second question,
namely: (ii) Are we satisfied beyond reasonable doubt that the act of cutting the girl’s
throat was an act of gross criminal negligence? If the answer to that question was ‘No’
then they would acquit, but if the answer was ‘Yes’ then the verdict would be guilty of
manslaughter. The jury would thus have been satisfied that, whichever act had killed
the deceased, each was a sufficient act to establish the offence of manslaughter.
The facts of this case did not call for ‘a series of acts direction’ following the principle
in Melli v The Queen [1954] 1 WLR 228. We have accordingly been deprived of the
stimulating questions as to whether the decision in R v Church [1966] 1 QB 59 correctly
extended that principle to manslaughter, in particular to ‘constructive manslaughter’
and if so whether that view was part of the ratio decidendi.
14 Extract from the judgment in R v Malcherek; R v Steel [1981]

2 All ER 422, 422 –429

R v Malcherek; R v Steel [1981] 2 All ER 422, 422–429

Lord Lane: This is not the occasion for any decision as to what constitutes death.
Modern techniques have undoubtedly resulted in the blurring of many of the
conventional and traditional concepts of death. A person’s heart can now be removed
altogether without death supervening; machines can keep the blood circulating
through the vessels of the body until a new heart can be implanted in the patient,
and even though a person is no longer able to breathe spontaneously a ventilating
machine can, so to speak, do his breathing for him, as is demonstrated in the two cases
before us. There is, it seems, a body of opinion in the medical profession that there is
only one true test of death and that is the irreversible death of the brain stem, which
controls the basic functions of the body such as breathing. When that occurs it is said
the body has died, even though by mechanical means the lungs are being caused to
operate and some circulation of blood is taking place.
We have had placed before us, and have been asked to admit, evidence that in each
of these two cases the medical men concerned did not comply with all the suggested
criteria for establishing such brain death. Indeed, further evidence has been suggested
and placed before us that those criteria or tests are not in themselves stringent
enough. However, in each of these two cases there is no doubt that whatever test is
applied the victim died; that is to say, applying the traditional test, all body functions,
breathing and heartbeat and brain function came to an end, at the latest, soon after
the ventilator was disconnected.
The question posed for answer to this court is simply whether the judge in each case
was right in withdrawing from the jury the question of causation. Was he right to rule
that there was no evidence on which the jury could come to the conclusion that the
assailant did not cause the death of the victim?
The way in which the submissions are put by counsel for Malcherek on the one hand
and by counsel for Steel on the other is as follows: the doctors, by switching off the
ventilator and the life support machine, were the cause of death or, to put it more
accurately, there was evidence which the jury should have been allowed to consider
that the doctors, and not the assailant, in each case may have been the cause of death.
In each case it is clear that the initial assault was the cause of the grave head injuries in
the one case and of the massive abdominal haemorrhage in the other. In each case the
initial assault was the reason for the medical treatment being necessary. In each case
the medical treatment given was normal and conventional. At some stage the doctors
must decide if and when treatment has become otiose. This decision was reached, in
each of the two cases here, in circumstances which have already been set out in some
detail. It is no part of the task of this court to inquire whether the criteria, the Royal
Medical College confirmatory tests, are a satisfactory code of practice. It is no part of
the task of this court to decide whether the doctors were, in either of these two cases,
justified in omitting one or more of the so called ‘confirmatory tests’. The doctors are
not on trial: Steel and Malcherek respectively were...
There is no evidence in the present case here that at the time of conventional death,
after the life support machinery was disconnected, the original wound or injury was
other than a continuing, operating and indeed substantial cause of the death of the
victim, although it need hardly be added that it need not be substantial to render the
assailant guilty. There may be occasions, although they will be rare, when the original
injury has ceased to operate as a cause at all, but in the ordinary case if the treatment
is given bona fide by competent and careful medical practitioners, then evidence will
not be admissible to show that the treatment would not have been administered
in the same way by other medical practitioners. In other words, the fact that the
victim has died, despite or because of medical treatment for the initial injury given
by careful and skilled medical practitioners, will not exonerate the original assailant
from responsibility for the death. It follows that so far as the ground of appeal in each
of these cases relates to the direction given on causation, that ground fails. It also
follows that the evidence which it is sought to adduce now, although we are prepared
to assume that it is both credible and was not available properly at the trial (and a
reasonable explanation for not calling it at the trial has been given), if received could,
under no circumstances, afford any ground for allowing the appeal.
The reason is this. Nothing which any of the two or three medical men whose
statements are before us could say would alter the fact that in each case the assailant’s
actions continued to be an operating cause of the death. Nothing the doctors
could say would provide any ground for a jury coming to the conclusion that the
assailant in either case might not have caused the death. The furthest to which their
proposed evidence goes, as already stated, is to suggest, first, that the criteria or the
confirmatory tests are not sufficiently stringent and, second, that in the present case
they were in certain respects inadequately fulfilled or carried out. It is no part of this
court’s function in the present circumstances to pronounce on this matter, nor was it
a function of either of the juries at these trials. Where a medical practitioner adopting
methods which are generally accepted comes bona fide and conscientiously to the
conclusion that the patient is for practical purposes dead, and that such vital functions
as exist (for example, circulation) are being maintained solely by mechanical means,
and therefore discontinues treatment, that does not prevent the person who inflicted
the initial injury from being responsible for the victim’s death. Putting it in another
way, the discontinuance of treatment in those circumstances does not break the chain
of causation between the initial injury and the death.
Although it is unnecessary to go further than that for the purpose of deciding the
present point, we wish to add this thought. Whatever the strict logic of the matter
may be, it is perhaps somewhat bizarre to suggest, as counsel have impliedly done,
that where a doctor tries his conscientious best to save the life of a patient brought to
hospital in extremis, skilfully using sophisticated methods, drugs and machinery to do
so, but fails in his attempt and therefore discontinues treatment, he can be said to have
caused the death of the patient.
For these reasons we do not deem it either necessary under s.23(2) of the Criminal
Appeal Act 1968 nor desirable or expedient under s.23(1) to receive the proposed
evidence of the doctors which, in statement form, has been placed before us. Likewise,
there is no ground for saying that the judge in either case was wrong in withdrawing the
issue of causation from the jury. It follows that the appeal of Malcherek is dismissed. It
now remains to consider the application in the case of Steel in so far as it relates to the
matters other than causation.
15 Extracts from Re A (children) [2000] 4 All ER 961

Extracts from Re A (children) [2000] 4 All ER 961
Extract one [2000] 4 All ER 961, 994–6

Ward LJ: But first, a preliminary issue: is this a fused body of two separate persons, each
having a life in being?
All parties took for granted in the court below that Mary is a live person and a separate
person from Jodie. In the literature which was placed before us, some commentators
had questioned whether this was the right approach to adopt. Consequently we
invited counsel to address the question. Before dealing with the law, I should set out
the facts, including further material placed before us by the hospital on this particular
point. There is no unanimity of view in answer to the hypothetical question: if Mary
had not been joined to Jodie, would she have been born alive?
The neonatologist said:
Had Mary been born with very tiny lungs she could well have been born alive but would
then have been unresuscitatable.
The consultant radiologist said:
There would have been a significant risk of her dying of heart failure during the pregnancy.
Mary may well have deteriorated further and died in pregnancy, though I am unable to
quantify the risk of this.
The obstetrician felt that:
With the degree of abnormalities of the circulatory system I feel that probably Mary would
have been born dead.
The cardiologist expressed the firmest view:
If Mary and Jodie had been separate and Mary’s cardio-respiratory system in utero was as
weak as it is now, I think it is 100% likely she would have died at birth had she survived the
pregnancy.
Nevertheless he was equally emphatic about her present position:
I first reviewed Mary at 72 hours of age, (not at birth) and at that stage although her heart
was very large and weak, it was pumping, but contributing probably less than 10% of the
circulatory requirements of Mary.
The neonatologist was also clear:
When Mary was born the clinicians’ judgment was that she did have functions indicative
of life. Her heart was beating regularly, she did make some spontaneous respiratory efforts
and there were movements of all her limbs.
There was total unanimity about their individuality. The neonatologist said:
The twins are considered to be separate individuals. There are two heads, two brains
and at different times of the day and night they exhibit different states of wakefulness/
alertness and clearly their feeding abilities and patterns are very different.
The cardiologist said:
Although the twins share some common tissue, they each have separate hearts, brains,
etc, and thus medically I feel are separate individuals.
In the face of that evidence it would be contrary to common sense and to everyone’s
sensibilities to say that Mary is not alive or that there are not two separate persons.
It is, therefore, unnecessary to examine the law in any depth at all. In one of the early
cases, R v Poulton (1832) 5 C & P 329 at 331, 172 ER 997 at 998 Littledale J in his summing-
up to the jury in a murder trial stated:
With respect to the birth, being born must mean that the whole body is brought into the
world. Whether the child was born alive or not depends mainly upon the evidence of the
medical men.
In R v Handley (1874) 13 Cox CC 79 at 81 Brett J told the jury they would have to consider
whether the child was born alive:
i.e. whether it existed as a live child, breathing and living by reason of breathing through
its own lungs alone, without deriving any of its living or power of living by or through any
connection with its mother.
Brooke J, as he then was, in Rance v Mid-Downs Health Authority [1991] 1 All ER 801 at 817,
[1991] 1 QB 587 at 621, adopted a similar definition, saying that a child is born alive:
if, after birth, it exists as a live child, that is to say breathing and living by reason of its
breathing through its own lungs alone, without deriving any of its living or power of living
by or through any connection with its mother.
I think I can guarantee that when my Lord said that, he did not relate his observations
to Siamese twins.
Here Mary has been born in the sense that she has an existence quite independent
from her mother. The fact that Mary is dependent upon Jodie, or the fact that twins
may be interdependent if they share heart and lungs, should not lead the law to fly in
the face of the clinical judgment that each child is alive and that each child is separate
both for the purposes of the civil law and the criminal law.
I would not wish to leave this topic without saying firmly that the notions expressed
in earlier times that Siamese twins were ‘monsters’ is totally unacceptable, indeed
repugnant and offensive to the dignity of these children in the light of current medical
knowledge and social sensibility. I deprecate any idea of ‘monstrous birth’. “
Extract 2 [2000] 4 All ER 961, 1025 – 6

Brook LJ: Is Mary a reasonable creature?
For the reasons given by Ward LJ and Robert Walker LJ, with which I agree, I am satisfied
that Mary’s life is a human life that falls to be protected by the law of murder. Although
she has for all practical purposes a useless brain, a useless heart and useless lungs,
she is alive, and it would in my judgment be an act of murder if someone deliberately
acted so as to extinguish that life unless a justification or excuse could be shown which
English law is willing to recognise. In recent editions of Archbold, including the 2000
edition, the editors have suggested that the word ‘reasonable’ in Coke’s definition
(which they wrongly ascribe to Lord Hale in paragraph 19-1) related to the appearance
rather than the mental capacity of the victim and was apt to exclude ‘monstrous
births’. Spurred on by this suggestion, and because the present case broke so much
novel ground, we explored with counsel some of the thinking of seventeenth century
English philosophers in an effort to ascertain what Coke may have meant when he
used the expression ‘any reasonable creature’ as part of his definition. We had in mind
their absorbing interest in the nature of ‘strange and deformed births’ and ‘monstrous
births’ (see Thomas Hobbes Elements of Law (1640) part II, chapter 10, section 8, and
John Locke An Essay Concerning Human Understanding (1690), Book III, chapter III,
section 17, Book III, ch VI, section 15 and 26 and Book III, chapter XI, section 20).
In A-G’s Reference (No. 3 of 1994) [1997] 3 All ER 936 at 941–942, [1998] AC 245 at 254
Lord Mustill referred to another statement in Coke, not mentioned in that passage in
Archbold, where after referring to prenatal injuries which lead to the delivery of a dead
child, Coke writes (3 Co Inst 50): ‘º if the childe be born alive, and dieth of the potion,
battery, or other cause, this is murder; for in law it is accounted a reasonable creature,
in rerum natura, when it is born alive.’ In these circumstances I have no hesitation in
accepting the submission by Miss Davies QC (whose assistance, as the friend of the
court, was of the greatest value), which was in these terms:
In ‘The sanctity of life and the criminal law’ (1958), Professor Glanville Williams
stated at p.31: ‘There is, indeed some kind of legal argument that a “monster” is not
protected even under the existing law. This argument depends upon the very old legal
writers, because the matter has not been considered in any modern work or in any
court judgment.’ After discussing the meaning of the word ‘monster’ (which might
originally have connoted animal paternity) he states at pp.33–34: ‘Locked (Siamese)
twins present a special case, though they are treated in medical works as a species of
monster. Here the recent medical practice is to attempt a severance, notwithstanding
the risks involved. Either the twins are successfully unlocked, or they die’ (emphasis
added). It is implicit in this analysis that the author is of the view that ‘Siamese’ wins
are capable of being murdered and the amicus curiae supports this view. Advances in
medical treatment of deformed neonates suggest that the criminal law’s protection
should be as wide as possible and a conclusion that a creature in being was not
reasonable would be confined only to the most extreme cases, of which this is not
an example. Whatever might have been thought of as ‘monstrous’ by Bracton, Coke,
Blackstone, Locke and Hobbes, different considerations would clearly apply today. This
proposition might be tested in this way: suppose an intruder broke into the hospital
and stabbed twin M causing her death. Clearly it could not be said that his actions
would be outside the ambit of the law of homicide.
Modern English statute law has mitigated the prospective burden that might
otherwise fall on the parents of severely handicapped children and their families if
they are willing to avail themselves of its protection at any time up to the time the
child (or children) is born. Section 1(1)(d) of the Abortion Act 1967, as substituted by
s.37(1) of the Human Fertilisation and Embryology Act 1990, provides:
Subject to the provisions of this section, a person shall not be guilty of an offence under
the law relating to abortion when a pregnancy is terminated by a registered medical
practitioner if two registered medical practitioners are of the opinion, formed in good
faith, that there is a substantial risk that if the child were born it would suffer from such
physical or mental abnormalities as to be severely handicapped.
Once a seriously handicapped child is born alive, the position changes, and it is
as much entitled to the protection of the criminal law as any other human being.
The governing principle is sometimes described as the universality of rights. In the
Canadian case of Perka v R (1984) 13 DLR (4th) 1 at 31 Wilson J said that the principle of
the universality of rights demands that all individuals whose actions are subjected to
legal evaluation must be considered equal in standing. It follows that unless there is
some special exception to which we can have recourse, in the eyes of the law Mary’s
right to life must be accorded equal status with her sister Jodie’s right to life. In this
context it is wholly illegitimate to introduce considerations that relate to the quality
or the potential quality of, each sister’s life.
Extract 3 [2000] 4 All ER 961, 1053-4

Walker LJ: In these circumstances this court has to start with some very basic
questions. Are these conjoined twins two persons or one in the eyes of the law? If
they are two persons, was Mary born alive? (If she was not born alive, there can be no
possible question of criminal liability for her unlawful killing.)
Mr Adrian Whitfield QC (appearing with Mr Huw Lloyd for the Healthcare Trust)
conceded that Jodie and Mary must be regarded as two separate persons, and he
was clearly right to do so. They have two brains and two nearly complete bodies,
despite the grave defects in Mary’s brain and her heart and lungs. There are cases of
incomplete (or heteropagus) twinning in which a child is born with abnormalities
which can be regarded as no more than a parasitic attachment. But it has not been and
could not be suggested that this case comes anywhere near that category.
The evidence also indicates that Mary, although incapable of separate existence, was
born alive. A ‘still-born’ child is defined (by the Births and Deaths Registration Act 1953,
s 41, as amended) as ‘a child which has issued forth from its mother after the twenty-
fourth week of pregnancy and which did not at any time after being completely
expelled from its mother breathe or show any signs of life’.
The medical notes from the hospital show that Mary was struggling to breathe,
although sadly in vain, when she and Jodie were brought from the operating theatre
into the recovery ward. Mr B (who would lead the operating team) was clear in
his oral evidence to this court that Mary was not still-born, but that she could not
be resuscitated and was not viable. Since her umbilical cord was cut she has been
dependent for life on her sister. The fact that she is alive as a distinct personality, but is
not viable as a separate human being, is the awful paradox at the centre of this case.
The definition in the 1953 Act applies only for the purposes of that statute, but it
appears to correspond closely (except in the precision of the minimum 24-week term,
which is not relevant here) to the position at common law: see generally the full
historical review by my Lord, Brooke J (as he then was) in Rance v Mid-Downs Health
Authority [1991] 1 All ER 801 at 814–819, [1991] 1 QB 587 at 617–623. Mr David Harris QC
(appearing with Mr Andrew Hockton, instructed by the Official Solicitor, for Mary) drew
the court’s attention to some passages in the speeches in Airedale NHS Trust v Bland
[1993] 1 All ER 821, [1993] AC 789 (most notably in the speech of Lord Browne-Wilkinson
([1993] 1 All ER 821 at 878–879, [1993] AC 789 at 878-879) pointing out that as medical
science has developed new techniques and equipment for the prolongation of human
life, the law has had to redefine death (in terms of brain-stem death rather than
cessation of unaided cardiovascular functioning). Mr Harris submitted that just as the
law has had to redefine death, so it may have to redefine the concept of being born
alive. There are a number of difficulties in the way of that argument but they need not
be considered further since Mr Whitfield (and all other counsel who might have been
concerned to argue the contrary) have rightly conceded that Mary is a human being
and was born alive.
It hardly needs to be said that there is no longer any place in legal textbooks, any
more than there is in medical textbooks, for expressions (such as ‘monster’) which are
redolent of superstitious horror. Such disparagingly emotive language should never be
used to describe a human being, however disabled and dysmorphic.
16 Extract of the judgment from Lamb [1967] 2 All ER 1282

Extract from Lamb [1967] 2 All ER 1282

Sachs J: The appellant, aged twenty-five, had become possessed of a Smith & Wesson
revolver. It was a revolver in the literal old fashioned sense, having a five-chambered
cylinder which rotated clockwise each time the trigger was pulled. The appellant, in
jest, with no intention to do any harm, pointed the revolver at the deceased, his best
friend, when it had two bullets in the chambers, but neither bullet was in the chamber
opposite the barrel. His friend was similarly treating the incident as a joke. The
appellant then pulled the trigger and thus killed his friend, still having no intention to
fire the revolver. The reason why the pulling of the trigger produced this fatal result
was that its pulling rotated the cylinder and so placed a bullet opposite the barrel so
that it was struck by the striking pin or hammer. The appellant’s defence was that as
neither bullet was opposite the barrel he thought they were in such cylinders that the
striking pin could not hit them; that he was unaware that the pulling of the trigger
would bring one bullet into the firing position opposite the barrel; and that the killing
was thus an accident...
In the course of his summing-up, the trial judge no doubt founded himself on that part
of the judgment of Edmund Davies J in R v Church ([1965] 2 All ER 72 at p 76; [1966] 1 QB
59 at p 70), where he said:
… the unlawful act must be such as all sober and reasonable people would inevitably
recognise must subject the other person to, at least, the risk of some harm resulting
therefrom, albeit not serious harm.
Unfortunately, however, he fell into error as to the meaning of the word ‘unlawful’ in
that passage...[and] took the view that the pointing of the revolver and the pulling
of the trigger was something which could of itself be unlawful, even if there were
no attempt to alarm or intent to injure. This view is exemplified in a passage in his
judgment which will be cited later. It was no doubt on this basis that he had before
commencing his summing-up stated that he was not going to ‘involve the jury in
any consideration of the niceties of the question whether or not the [action of the
appellant] did constitute or did not constitute an assault’; and thus he did not refer to
the defence of accident or the need for the prosecution to disprove accident before
coming to a conclusion that the act was unlawful.
Counsel for the Crown, however, had at all times put forward the correct view that
for the act to be unlawful it must constitute at least what he then termed ‘a technical
assault’. In this court, moreover, he rightly conceded that there was no evidence to
go to the jury of any assault of any kind. Nor did he feel able to submit that the acts of
the appellant were on any other ground unlawful in the criminal sense of that word.
Indeed no such submission could in law be made: if, for instance, the pulling of the
trigger had had no effect because the striking mechanism or the ammunition had
been defective no offence would have been committed by the appellant.
Another way of putting it is that mens rea being now an essential ingredient in
manslaughter (compare Andrews v Director of Public Prosecutions ([1937] 2 All ER 552
at pp 555, 556; [1937] AC 576 at p .82) and R v Church ([1965] 2 All ER at p.76; [1966] 1 QB
at p.70)) this could not in the present case be established…except by proving that
element of intent without which there can be no assault.
It is perhaps as well to mention that when using the phrase ‘unlawful in the criminal
sense of that word’ the court has in mind that it is long settled that it is not in point to
consider whether an act is unlawful merely from the angle of civil liabilities. That was
first made clear in R v Franklin.
Appeal allowed. Conviction quashed.

17 Extract from R v Misra; R v Srivastava [2004] EWCA Crim

2375

Extract from R v Misra; R v Srivastava [2004] EWCA Crim 2375

Judge LJ: It is convenient now to address the argument that the decision in R v G and
Another should lead us to reassess whether gross negligence manslaughter should
now be replaced by and confined to reckless manslaughter. As we have shown,
precisely this argument by Lord Williams of Mostyn was rejected in Adomako. We
also note, first, that Parliament has not given effect to possible reforms on this topic
discussed by the Law Commission and, second, notwithstanding that Adomako was
cited in argument in R v G and Another, it was not subjected to any reservations or
criticisms. Indeed in his speech Lord Bingham of Cornhill emphasised that in R v G he
was not addressing the meaning of ‘reckless’ in any other statutory or common law
context than ss.1(1) and (2) of the Criminal Damage Act 1971. In these circumstances,
although we gave leave to Mr Gledhill to amend his grounds of appeal to enable him
to deploy the argument, we reject it.
We can now reflect on Mr Gledhill’s associated contention that if recklessness is not

a necessary ingredient of this offence, the decision in Attorney General’s Reference
(No. 2 of 1999) [2000] QB 796, [2000] 3 All ER 182 led to the unacceptable conclusion
that manslaughter by gross negligence did not require proof of any specific state
of mind, and that the defendant’s state of mind was irrelevant. In our judgment
the submission is based on a narrow reading of the decision that a defendant may
properly be convicted of gross negligence manslaughter in the absence of evidence
as to his state of mind. However when it is available, such evidence is not irrelevant
to the issue of gross negligence. It will often be a critical factor in the decision (see R
(on the application of Rowley) v DPP [2003] EWHC 693). In Adomako itself, Lord Mackay
directed attention to ‘all’ of the circumstances in which the defendant was placed: he
did not adopt, or endorse, or attempt to redefine the list of states of mind to which
Lord Taylor CJ referred in Prentice, which was not in any event ‘exhaustive’ of possible
relevant states of mind. It is therefore clear that the defendant is not to be convicted
without fair consideration of all the relevant circumstances in which his breach of duty
occurred. In each case, of course, the circumstances are fact-specific.
Mr Gledhill nevertheless contended that even so, the problem of mens rea remains.
This, he argued was a necessary, but absent ingredient of the offence. We have
reflected, of course, that if the defendant intends death or really serious harm, and
acts in such a way to cause either, and death results, he would be guilty of murder.
If he intends limited injury, and causes death, he would be guilty of manslaughter in
any event. We are here concerned with the defendant who does not intend injury,
but who in all the contemporaneous circumstances is grossly negligent. As a matter
of strict language, ‘mens rea’ is concerned with an individual defendant’s state of
mind. Speaking generally, negligence is concerned with his failure to behave in
accordance with the standards required of the reasonable man. Looked at in this way,
the two concepts are distinct. However the term mens rea is also used to describe the
ingredient of fault or culpability required before criminal liability for the defendant’s
actions may be established. In Sweet v Parsley [1970] AC 132, [1969] 1 All ER 347, Lord
Reid explained that there were occasions when gross negligence provided the
‘necessary mental element’ for a serious crime. Manslaughter by gross negligence is
not an absolute offence. The requirement for gross negligence provides the necessary
element of culpability.
We can now return to the argument based on circularity and uncertainty, and the
application of Articles 6 and 7 of the ECHR. The most important passages in the speech
of Lord Mackay on the issue of circularity read:
. . . The jury must go on to consider whether that breach of duty should be characterised
as gross negligence and therefore as a crime. This will depend on the seriousness of
the breach of duty committed by the defendant in all the circumstances in which the
defendant was placed when it occurred. The jury will have to consider whether 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 criminal.
It is true that, to a certain extent, this involves an element of circularity, but in this branch
of the law I do not believe that is fatal to its being correct as a test of how far conduct
must depart from accepted standards to be characterised as criminal. . .The essence of the
matter which is supremely a jury question is whether, having regard to the risk of death
involved, the conduct of the defendant was so bad in all the circumstances as to amount
in their judgment to a criminal act or omission.
Mr Gledhill [counsel for Misra] suggested that this passage demonstrated that an
additional specific ingredient of this offence was that the jury had to decide whether
the defendant’s conduct amounted to a crime. If the jury could, or was required to,
define the offence for itself, and accordingly might do so on some unaccountable or
unprincipled or unexplained basis, to adopt Bacon, the sound given by the law would
indeed be uncertain, and would then strike without warning. Mr Gledhill’s argument
then would be compelling.
Looking at the authorities since Bateman, the purpose of referring to the differences
between civil and criminal liability, whether in the passage in Lord Mackay’s speech to
which we have just referred, or in directions to the jury, is to highlight that the burden
on the prosecution goes beyond proof of negligence for which compensation would
be payable. Negligence of that degree could not lead to a conviction for manslaughter.
The negligence must be so bad, “gross”, that if all the other ingredients of the offence
are proved, then it amounts to a crime and is punishable as such...
Accordingly, the value of references to the criminal law in this context is that
they avoid the danger that the jury may equate what we may describe as ‘simple’
negligence, which in relation to manslaughter would not be a crime at all, with
negligence which involves a criminal offence. In short, by bringing home to the
jury the extent of the burden on the prosecution, they ensure that the defendant
whose negligence does not fall within the ambit of the criminal law is not convicted
of a crime. They do not alter the essential ingredients of this offence. A conviction
cannot be returned if the negligent conduct is or may be less than gross. If however
the defendant is found by the jury to have been grossly negligent, then, if the jury
is to act in accordance with its duty, he must be convicted. This is precisely what
Lord Mackay indicated when, in the passage already cited, he said, ‘. . .The jury must
go on to consider whether that breach of duty should be characterised as gross
negligence and therefore as a crime’ (our emphasis)... On proper analysis, therefore,
the jury is not deciding whether the particular defendant ought to be convicted on
some unprincipled basis. The question for the jury is not whether the defendant’s
negligence was gross, and whether, additionally, it was a crime, but whether his
behaviour was grossly negligent and consequently criminal. This is not a question of
law, but one of fact, for decision in the individual case.
On examination, this represents one example, among many, of problems which juries
are expected to address on a daily basis. They include equally difficult questions,
such as whether a defendant has acted dishonestly, by reference to contemporary
standards, or whether he has acted in reasonable self-defence, or, when charged
with causing death by dangerous driving, whether the standards of his driving fell far
below what should be expected of a competent and careful driver. These examples
represent the commonplace for juries. Each of these questions could be said to be
vague and uncertain. If he made enquiries in advance, at most an individual would be
told the principle of law which the jury would be directed to apply: he could not be
advised what a jury would think of the individual case, and how it would be decided.
That involves an element of uncertainty about the outcome of the decision-making
process, but not unacceptable uncertainty about the offence itself.
In our judgment the law is clear. The ingredients of the offence have been clearly
defined, and the principles decided in the House of Lords in Adomako. They involve no
uncertainty. The hypothetical citizen, seeking to know his position, would be advised
that, assuming he owed a duty of care to the deceased which he had negligently
broken, and that death resulted, he would be liable to conviction for manslaughter if,
on the available evidence, the jury was satisfied that his negligence was gross. A doctor
would be told that grossly negligent treatment of a patient which exposed him or her
to the risk of death, and caused it, would constitute manslaughter.
After Lord Williams’ sustained criticism of the offence of manslaughter by gross

negligence, the House of Lords in Adomako clarified the relevant principles and the
ingredients of this offence. Although, to a limited extent, Lord Mackay accepted that
there was an element of circularity in the process by which the jury would arrive at its
verdict, the element of circularity which he identified did not then and does not now
result in uncertainty which offends against Article 7, nor if we may say so, any principle
of common law. Gross negligence manslaughter is not incompatible with the ECHR.
Accordingly the appeal arising from the question certified by the trial judge must be
dismissed.
18 Judgment from Powell & Daniels; English [1999] 1 AC 1

Powell & Daniels; English [1999] 1 AC 1

Lord Steyn: That brings me to the qualification which I have foreshadowed. In
English law a defendant may be convicted of murder who is in no ordinary sense a
murderer. It is sufficient if it is established that the defendant had an intent to cause
really serious bodily injury. This rule turns murder into a constructive crime. The fault
element does not correspond to the conduct leading to the charge, i.e. the causing
of death. A person is liable to conviction for a more serious crime than he foresaw or
contemplated: see Glanville Williams, Textbook of Criminal Law, 2nd edition (1983), pp.
250-251; Ashworth, Principles of Criminal Law, 2nd edition pp. 85 and 261; Card, Cross
and Jones, Criminal Law, 12th edition (1992), pp.203–204. This is a point of considerable
importance.
The Home Office records show that in the last three years for which statistics are
available mandatory life sentences for murder were imposed in 192 cases in 1994; in
214 cases in 1995; and in 257 cases in 1996. Lord Windlesham, writing with great Home
Office experience, has said that a minority of defendants convicted of murder have
been convicted on the basis that they had an intent to kill: Responses to Crime, vol. 3
(1996), at 342, n. 29. That assessment does not surprise me.
What is the justification for this position? There is an argument that, given the
unpredictability whether a serious injury will result in death, an offender who
intended to cause serious bodily injury cannot complain of a conviction of murder in
the event of a death. But this argument is outweighed by the practical consideration
that immediately below murder there is the crime of manslaughter for which the
court may impose a discretionary life sentence or a very long period of imprisonment.
Accepting the need for a mandatory life sentence for murder, the problem is one
of classification. The present definition of the mental element of murder results in
defendants being classified as murderers who are not in truth murderers. It happens
both in cases where only one offender is involved and in cases resulting from joint
criminal enterprises. It results in the imposition of mandatory life sentences when
neither justice nor the needs of society require the classification of the case as murder
and the imposition of a mandatory life sentence.
The observations which I have made about the mental element required for murder
were not directly in issue in the appeals under consideration. But in the context of
murder the application of the accessory principle, and the definition of murder, are
inextricably linked. For that reason I have felt at liberty to mention a problem which
was not addressed in argument. That counsel did not embark on such an argument is
not altogether surprising. After all, in R v Cunningham [1982] AC 566 the House of Lords
declined to rationalise and modernise the law on this point. Only Lord Edmund-Davies
expressed the hope that the legislature would undertake reform: see p.583B-C. In my
view the problem ought to be addressed. There is available a precise and sensible
solution, namely, that a killing should be classified as murder if there is an intention
to kill or an intention to cause really serious bodily harm coupled with awareness of
the risk of death: 14th Report of the Law Revision Committee, (1980), paragraph 31,
adopted in the Criminal Code, for England and Wales, (Law Com. No. 177), (1986), clause
54(1). This solution was supported by the House of Lords Select Committee on Murder
and Life Imprisonment, HL Paper 78-1, 1989, par 68.
19 Extract from R v Ireland and Burstow [1998] AC 147

R v Ireland and Burstow [1998] AC 147
Lord Steyn
Reg. v. Ireland: was there an assault?
It is now necessary to consider whether the making of silent telephone calls causing
psychiatric injury is capable of constituting an assault... The Court of Appeal, as
constituted in Reg. v. Ireland case, answered that question in the affirmative. There has
been substantial academic criticism of the conclusion and reasoning in Reg. v. Ireland:
see Archbold News, Issue 6, 12 July 1996; Archbold’s Criminal Pleading, Evidence & Practice,
Supplement No. 4 (1996), pp. 345-347; Smith and Hogan, Criminal Law, 8th ed. (1996),
413; “Assault by Telephone” by Jonathan Herring [1997] C.L.J. 11 and “Assault” [1997]
Crim.L.R. 434, 435-436. Counsel’s arguments, broadly speaking, challenged the decision
in Reg. v. Ireland on very similar lines. Having carefully considered the literature and
counsel’s arguments, I have come to the conclusion that the appeal ought to be
dismissed.
And later
It is necessary to consider the two forms which an assault may take. The first is battery,
which involves the unlawful application of force by the defendant upon the victim.
Usually, section 47 is used to prosecute in cases of this kind. The second form of assault
is an act causing the victim to apprehend an imminent application of force upon her:
see Fagan v. Metropolitan Police Commissioner [1969] 1 Q.B. 439, 444d-e.
One point can be disposed of, quite briefly. The Court of Appeal was not asked to
consider whether silent telephone calls resulting in psychiatric injury is capable of
constituting a battery. But encouraged by some academic comment it was raised
before your Lordships’ House. Counsel for Ireland was most economical in his
argument on the point. I will try to match his economy of words. In my view it is not
feasible to enlarge the generally accepted legal meaning of what is a battery to include
the circumstances of a silent caller who causes psychiatric injury.
It is to assault in the form of an act causing the victim to fear an immediate application
of force to her that I must turn. Counsel argued that as a matter of law an assault
can never be committed by words alone and therefore it cannot be committed by
silence. The premise depends on the slenderest authority, namely, an observation by
Holroyd J. to a jury that “no words or singing are equivalent to an assault:” Rex v. Meade
and Belt (1823) 1 Lew. 184. The proposition that a gesture may amount to an assault,
but that words can never suffice, is unrealistic and indefensible. A thing said is also
a thing done. There is no reason why something said should be incapable of causing
an apprehension of immediate personal violence, e.g. a man accosting a woman in
a dark alley saying, “Come with me or I will stab you.” I would, therefore, reject the
proposition that an assault can never be committed by words.
That brings me to the critical question whether a silent caller may be guilty of an
assault. The answer to this question seems to me to be “Yes, depending on the facts.”
It involves questions of fact within the province of the jury. After all, there is no reason
why a telephone caller who says to a woman in a menacing way “I will be at your door
in a minute or two” may not be guilty of an assault if he causes his victim to apprehend
immediate personal violence. Take now the case of the silent caller. He intends by his
silence to cause fear and he is so understood. The victim is assailed by uncertainty
about his intentions. Fear may dominate her emotions, and it may be the fear that
the caller’s arrival at her door may be imminent. She may fear the possibility of
immediate personal violence. As a matter of law the caller may be guilty of an assault:
whether he is or not will depend on the circumstance and in particular on the impact
of the caller’s potentially menacing call or calls on the victim… And a trial judge may,
depending on the circumstances, put a common sense consideration before the jury,
namely what, if not the possibility of imminent personal violence, was the victim
terrified about? I conclude that an assault may be committed in the particular factual
circumstances which I have envisaged. For this reason I reject the submission that
as a matter of law a silent telephone caller cannot ever be guilty of an offence under
section 47. In these circumstances no useful purpose would be served by answering
the vague certified question in Reg. v. Ireland.
20 Extract from the Law Commission: Offences Against the

Person Bill 1998
Paragraphs 1–7, 11, 14 and 15

Offences Against the Person Bill 1998
Injury and assault.
1.-
(1) A person is guilty of an offence if he intentionally causes serious injury to another.
(2) A person is guilty of an offence if he omits to do an act which he has a duty to do

at common law, the omission results in serious injury to another, and he intends the
omission to have that result.
(3) An offence under this section is committed notwithstanding that the injury occurs
outside England and Wales if the act causing injury is done in England and Wales or the
omission resulting in injury is made there.
(4) A person guilty of an offence under this section is liable on conviction on

indictment to imprisonment for life.
2. –
(1) A person is guilty of an offence if he recklessly causes serious injury to another.
outside England and Wales if the act causing injury is done in England and Wales.
(3) A person guilty of an offence under this section is liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding 7 years;

(b) on summary conviction, to imprisonment for a term not exceeding 6 months or a
fine not exceeding the statutory maximum or both.
3. –
(1) A person is guilty of an offence if he intentionally or recklessly causes injury to
another.
outside England and Wales if the act causing injury is done in England and Wales.

4. –
(1) A person is guilty of an offence if—
(a) he intentionally or recklessly applies force to or causes an impact on the body of

another, or
(b) he intentionally or recklessly causes the other to believe that any such force or
impact is imminent.
(2) No such offence is committed if the force or impact, not being intended or likely
to cause injury, is in the circumstances such as is generally acceptable in the ordinary
conduct of daily life and the defendant does not know or believe that it is in fact
unacceptable to the other person.
(3) A person guilty of an offence under this section is liable on summary conviction to
imprisonment for a term not exceeding 6 months or a fine not exceeding level 5 on
the standard scale or both.
6. –
(1) A person is guilty of an offence under this section if he causes serious injury to
another intending to resist, prevent or terminate the lawful arrest or detention of
himself or a third person.
(2) The question whether the defendant believes the arrest or detention is lawful must
be determined according to the circumstances as he believes them to be.
(3) A person guilty of an offence under this section is liable on conviction on

indictment to imprisonment for life.
7. –
(1) A person is guilty of an offence if he assaults another intending to resist, prevent or
terminate the lawful arrest or detention of himself or a third person.
(2) The question whether the defendant believes the arrest or detention is  lawful
must be determined according to the circumstances as he believes them to be.
(3) For the purposes of this section a person assaults if he commits the offence under
section 4.

11. –
(1) A person is guilty of an offence if –
(a) he administers a substance to another or causes it to be taken by him and (in either
case) he does so intentionally or recklessly,
(b) he knows the substance is capable of causing injury to the other, and
(c) it is unreasonable to administer the substance or cause it to be taken having regard
to the circumstances as he knows or believes them to be.
(2) A person guilty of an offence under this section is liable –

Meaning of fault terms and of injury
14. –
(1) A person acts intentionally with respect to a result if—
(a) it is his purpose to cause it, or

(b) although it is not his purpose to cause it, he knows that it would occur in the
ordinary course of events if he were to succeed in his purpose of causing some other
result.
(2) A person acts recklessly with respect to a result if he is aware of a risk that it will
occur and it is unreasonable to take that risk having regard to the circumstances as he
knows or believes them to be.
(3) A person intends an omission to have a result if—
(a) it is his purpose that the result will occur, or

(b) although it is not his purpose that the result will occur, he knows that it would
occur in the ordinary course of events if he were to succeed in his purpose that some
other result will occur.
(4) A person is reckless whether an omission will have a result if he is aware of a risk
that the result will occur and it is unreasonable to take that risk having regard to the
circumstances as he knows or believes them to be.
(5) Related expressions must be construed accordingly.
(6) This section has effect for the purposes of this Act.
15.-
(1) In this Act “injury” means—
(a) physical injury, or

(b) mental injury.
(2) Physical injury does not include anything caused by disease but (subject to that)
it includes pain, unconsciousness and any other impairment of a person’s physical
condition.
(3) Mental injury does not include anything caused by disease but (subject to that) it
includes any impairment of a person’s mental health.
(4) In its application to section 1 this section applies without the exceptions relating to
things caused by disease.
21 ‘Should more matches end in court?’
Simon Gardiner
New Law Journal Review 1 July 2005, pp.577–583.



2010.


22 Extract from Crown Prosecution Service Guidance to

Prosecutors
Common Assault, contrary to section 39 Criminal Justice Act

(i) An offence of common assault is committed when a person either assaults another
person or commits a battery.
(ii) An assault is committed when a person intentionally or recklessly causes another

to apprehend the immediate infliction of unlawful force.
(iii) A battery is committed when a person intentionally and recklessly applies

unlawful force to another.
(iv) It is a summary offence, which carries a maximum penalty of six months

imprisonment and/or fine not exceeding the statutory maximum.
(v) Where there is a battery the defendant should be charged with ‘assault by beating.’
(DPP v Little (1992) 1 All ER 299).
(vi) In law, the only factors that distinguish common assault from assault occasioning
actual bodily harm, contrary to section 47 of the Offences Against the Person Act 1861,
are the degree of injury that results and the sentence available to the sentencing
court.
(vii) Where battery results in injury, a choice of charge is available. The Code for
Crown Prosecutors recognises that there will be factors, which may properly lead to a
decision not to prefer or continue with the gravest possible charge. Thus, although any
injury that is more than transient or trifling can be classified as actual bodily harm, the
appropriate charge (subject to Para (viii) below) will be contrary to section 39 where
injuries amount to no more than the following:
uu Grazes
uu Scratches
uu Abrasions
uu Minor bruising
uu Swellings
uu Reddening of the skin
uu Superficial cuts
uu A ‘black eye.’
(i) You should always consider the injuries first and in most cases the degree of injury
will determine whether the appropriate charge is section 39 or section 47. There
will be borderline cases, such as where an un-displaced broken nose has resulted.
Generally, when the injuries amount to no more than those described at sub-
paragraph (vii) above, common assault will be the appropriate charge.
However, there may be cases where the injuries suffered by a victim would usually
amount to common assault but due to the presence of serious aggravating features,
they could more appropriately be charged as actual bodily harm contrary to s. 47
Offences Against the Person Act 1861.
Such serious aggravating features would include:
(a) the nature of the assault, such as the use of a weapon, biting, gouging or kicking of
a victim whilst on the ground, or strangulation which is more than fleeting and which
caused real fear to the victim; or
(b) the vulnerability of the victim, such as when the victim is elderly, disabled or a child
assaulted by an adult (so that where an assault causes any of the injuries referred to in
sub-paragraph (vii) above, other than reddening of the skin, the charge will normally be
assault occasioning actual bodily harm, although prosecutors must bear in mind that the
definition of assault occasioning actual bodily harm requires the injury to be more than
transient and trifling); or
(c) other circumstances when though the injuries are relatively minor the existence of
aggravating features mean that the sentencing powers of the court may not be adequate.
Assault occasioning actual bodily harm, contrary to section 47 Offences Against

the Person Act 1861
(i) The offence is committed when a person assaults another, thereby causing actual
bodily harm. Bodily harm has its ordinary meaning and includes any hurt calculated to
interfere with the health or comfort of the victim: such hurt need not be permanent,
but must be more than transient and trifling: It is an either way offence, which carries
a maximum penalty on indictment of five years’ imprisonment and/or an unlimited
fine not exceeding the statutory maximum.
(ii) As stated in paragraph 1(vi) above, the factors in law that distinguish a charge
under section 39 from a charge under section 47 are the degree of injury resulting and
the sentencing powers available to the sentencing court. Refer to paragraphs 1(vii)
and (viii) for instances where common assault will be the appropriate charge. Where
the injuries exceed those that can suitably be reflected by a common assault a charge
of assault occasioning actual bodily harm should normally be preferred. By way of
example, the following injuries should normally be prosecuted under section 47:
uu Loss or breaking of tooth or teeth
uu Temporary loss of sensory functions, which may include loss of consciousness (T v

Director of Public Prosecutions, [2003] Crim. LR 622).
uu Extensive or multiple bruising
uu Displaced broken nose
uu Minor fractures
uu Minor, but not merely superficial, cuts of a sort probably requiring medical
treatment (e.g. stitches)
uu Psychiatric injury that is more than mere emotions such as fear, distress or panic.
In any case where psychiatric injury is relied upon, as the basis for an allegation
of assault occasioning actual bodily harm, and the matter is not admitted by the
defence, then expert evidence must be called by the prosecution (R v Chan-Fook, 99
Cr App R 147, CA).
(i00) A verdict of assault occasioning actual bodily harm may be returned on proof of
an assault together with proof of the fact that actual bodily harm was occasioned by
the assault.
(iv) The test of recklessness is as per R v Cunningham
(v) This offence is capable of being racially aggravated under the Crime and Disorder
Act 1998.
Unlawful wounding/inflicting grievous bodily harm, contrary to section 20

of the Act.
(i) The offence is committed when a person unlawfully and maliciously, either:
uu wounds another person; or
uu inflicts grievous bodily harm upon another person.
(ii) It is an either way offence, which carries a maximum penalty on indictment of five
years’ imprisonment and/or an unlimited fine. Summarily, the maximum penalty is six
months’ imprisonment and/or a fine not exceeding the statutory maximum.
(iii) Wounding means the breaking of the continuity of the whole of the outer skin,
or the inner skin within the cheek or lip. It does not include the rupturing of internal
blood vessels.
(iv) The definition of wounding may encompass injuries that are relatively minor
in nature, for example a small cut or laceration. An assault resulting in such minor
injuries should more appropriately be charged contrary to section 47. An offence
contrary to section 20 should be reserved for those wounds considered to be serious
(thus equating the offence with the infliction of grievous, or serious, bodily harm
under the other part of the section).
(v) Grievous bodily harm means serious bodily harm. It is for the jury to decide
whether the harm is serious. However, examples of what would usually amount to
serious harm include:
uu injury resulting in permanent disability or permanent loss of sensory function;
uu injury which results in more than minor permanent, visible disfigurement; broken
or displaced limbs or bones, including fractured skull
uu compound fractures, broken cheek bone, jaw, ribs, etc.
uu injuries which cause substantial loss of blood, usually necessitating a transfusion
uu injuries resulting in lengthy treatment or incapacity
uu psychiatric injury. As with assault occasioning actual bodily harm, appropriate

expert evidence is essential to prove the injury.
(vi) In accordance with the recommendation in (R v McCready (1978) 1 WLR 1376),

if there is any reliable evidence that a sufficiently serious wound has been inflicted,
then the charge under section 20 should be of unlawful wounding, rather than of
inflicting grievous bodily harm. Where both a wound and grievous bodily harm have
been inflicted, discretion should be used in choosing which part of section 20 more
appropriately reflects the true nature of the offence.
(vii) The prosecution must prove under section 20 that either the defendant intended,
or actually foresaw, that the act might cause some harm. It is not necessary to prove
that the defendant either intended or foresaw that the unlawful act might cause
physical harm of the gravity described in section 20. It is enough that the defendant
foresaw some physical harm to some person, albeit of a minor character, might result:
(R v Savage; DPP v Parmenter [1992] 1 A.C 699).
(viii) This offence is capable of being racially/religiously aggravated under the Crime
and Disorder Act 1998. Wounding/causing grievous bodily harm with intent, contrary
to section 18 Offences Against the Person Act 1861.
Wounding/causing grievous bodily harm with intent, contrary to section 18

Offences Against the Person Act 1861.
(i) The offence is committed when a person unlawfully and maliciously, with intent
to do some grievous bodily harm, or with intent to resist or prevent the lawful
apprehension or detainer of any other person, either:
uu wounds another person; or
uu causes grievous bodily harm to another person.
(ii) It is an indictable only offence, which carries a maximum penalty of imprisonment

for life.
(iii) For the definition of wounding and grievous bodily harm, see paragraphs 4(iii) to
4(v) above.
(iv) The distinction between charges under section 18 and section 20 is one of intent.
(v) The gravity of the injury resulting is not the determining factor, although it may
provide some evidence of intent.
(vi) When charging an offence involving grievous bodily harm, consideration should
be given to the fact that a section 20 offence requires the infliction of harm, whereas
a section 18 offence requires the causing of harm. This may be of some significance
when considering alternative verdicts, (section 7 below). However this distinction has
been greatly reduced by the decision of the House of Lords in R v Ireland; R v Burstow
[1998] A.C 147 (Archbold 19-208).
(vii) Factors that may indicate the specific intent include:
uu a repeated or planned attack
uu deliberate selection of a weapon or adaptation of an article to cause injury, such as

breaking a glass before an attack
uu making prior threats
uu using an offensive weapon against, or kicking the victim’s head.
(viii) The evidence of intent required is different if the offence alleged is a wounding
or the causing of grievous bodily harm with intent to resist or prevent the lawful
apprehension or detainer of any person. This part of section 18 is of assistance in more
serious assaults upon police officers, where the evidence of an intention to prevent
arrest is clear, but the evidence of an intent to cause grievous bodily harm is in doubt.
(Archbold 19-213 to 19-214).
(ix) It is not bad for duplicity to indict for wounding with intent to cause grievous
bodily harm or to resist lawful apprehension in one count, although it is best practice
to include the allegations in separate counts. This will enable a jury to consider the
different intents and the court to sentence on a clear basis of the jury’s finding.
23 Extract from Judicial Studies Board Specimen Directions
© Crown copyright
Reproduced by permission of the Judicial Studies Board.
The Judicial Studies Board

9th Floor, Millbank Tower
Millbank,
London SW1P 4QU
Judicial Studies Board: Specimen Directions
15. Recklessness - Offences Against the Person Act 1861, sections 39 and 47.
‘Maliciously’ – Offences Against the Person Act 1861, section 20.
A. Common assault (section 39): assault occasioning actual bodily harm (section
47)
In most cases of assault it will NOT be necessary to leave the issue of recklessness to
the jury: see R v Nash (1991) The Times, 11 June. This should normally be done only
when the word appears in the count or the circumstances of the particular case plainly
call for such a direction. In many cases a direction on recklessness will only serve to
confuse the jury, and in the event of a conviction will create a potential for difficulty
in sentencing. Naturally, it is preferable that the position be clear before the case is
opened to the jury; but in any event if the judge is of the view that such a direction is
appropriate, or in case of any doubt, it is desirable that the matter be broached with
counsel before closing speeches.
(a) In the (unusual) case where no physical force is actually applied.
The mental element in the offence of assault is established where it is proved that
the defendant intentionally or recklessly caused another to fear that he would be
subjected to immediate and unlawful violence. It is therefore sufficient to prove that
the defendant was reckless as to whether the complainant might fear that he was to
be subjected to immediate and unlawful violence.
To prove recklessness you must be sure that the defendant realised that XY might
fear that he would then and there be subject to immediate and unlawful force and
nonetheless went on and took that risk.
(b) In the case where physical force is actually applied.
The mental element in the offence of common assault is established where it is proved
that the defendant intentionally or recklessly applied unlawful force to another
person. The mental element in the offence of assault occasioning actual bodily harm is
precisely the same. Whether actual bodily harm was ‘occasioned’ (caused) is simply a
question of causation and does not involve any consideration of recklessness, see R v
Savage and DPP v Parmenter [1992] 1 AC 699, HL.
To prove recklessness you must be sure that the defendant realised that XY might be
subjected to unlawful force (however slight) as a result of what he was about to do
and yet took the risk that that might happen.
24 Extract from R v Savage; R v Parmenter
As published in the Weekly Law Reports 22 November 1991.



2010.

25 Criminal law: texts and materials
C.M.V. Clarkson and H.M. Keating

(London: Sweet & Maxwell, 2003) fifth edition [ISBN 0420468609] pp.600–610.



2010.

Begin reading at ‘II. Sexual Offences’.
26 Setting the boundaries: Reforming the law on sex offences
Executive summary and recommendations
© Crown copyright
This consultation paper was produced by the Home Office in July 2000.
27 Protecting the public: Strengthening protection against sex

offenders and reforming the law on sexual offences
Chapter 2: Clarifying the law on consent
Chapter 3: Non-consensual offences
Home Office: Presented to Parliament by the Secretary of State for the Home
Department by Command of Her Majesty November 2002. Cm 5668
Note: the complete White Paper can be downloaded from:

http://www.archive2.official-documents.co.uk/document/cm56/5668/5668.htm
© Crown Copyright 2002
The text in this document may be reproduced free of charge in any

format or medium providing that it is reproduced accurately and not
used in a misleading context. The material must be acknowledged as
Crown copyright and the title of the document specified.
Any enquiries relating to the copyright in this document should be

addressed to:
The Licensing Division, HMSO, St Clements House,

2–16 Colegate, Norwich, NR3 1BQ.
Fax: 01603 723000 or

e-mail: licensing@cabinet-office.x.gsi.gov.uk
28 ‘The Sexual Offences Act 2003: (1) Rape, Sexual Assaults and
the Problems of Consent’
J. Temkin and A. Ashworth

Criminal Law Review 2004, pp.328–346.



2010.

page
Criminal
176 law Study pack University of London International Programmes
page 176
29 Director of Public Prosecutions v Armstrong [2000]

Crim LR 379
The Times 10 December 1999, CO/2044/99
Director of Public Prosecutions v Armstrong [2000] Crim LR 379, The Times

10 December 1999, CO/2044/99
Tuckey LJ: This is an appeal by way of case stated from the decision of Mr Parsons, a
Deputy Stipendiary Magistrate sitting in Birmingham made on 16 November 1998.
On that day he heard an information preferred by the appellant prosecutor against
the respondent, Mr Andrew Armstrong, that between 14 November 1997 and 30
November 1997 he had incited Gareth Robert Tobin (known as ‘John’) to distribute
indecent photographs of children contrary to common law. The magistrate upheld the
submission of no case at the end of the prosecution’s case, and was subsequently asked
to state the case which we have before us.
The case sets out the facts which the magistrate found proved. They are as follows. A
police informer had been contacted on 9 November 1997 by someone asking to be
supplied with pornography involving young girls ‘no younger than, say, 12 years old’.
The informer told the person who contacted him that he did not deal in such material,
but gave him a mobile telephone number to contact and told him to speak to John.
John was a pseudonym used by Detective Constable Tobin (the person named in the
charge), who was an officer with the Paedophile and Pornography Unit at the Bradford
Street Police Station in Birmingham.
On 19 November 1997 the officer received a telephone call on his mobile from
someone who asked to speak to John. The person calling asked for pornography
involving girls ‘not younger than, say, 12 years’ and arrangements were made between
the two men for such a transaction to take place. The respondent was arrested on 4
February 1998 and we are told that in interview he admitted that he had made the call
but suggested that he was merely making an inquiry and that the request was not for
anything indecent.
In the course of cross-examination the officer was asked whether he had any intention
of supplying the material which he had been asked for and, quite naturally, said no, he
did not. However, he said that he had access to such material from the police stores
since the unit with which he worked came into possession of such material and dealt
with it all the time.
At the end of the prosecution case Mr Sharpe, who appears for the respondent then as
he does today before us, submitted that there was no case to answer. His contention
was that in the light of the officer’s answer the prosecution had failed to make out a
case since the intention of the officer was relevant to the commission of the offence
and, furthermore, the fact that he was not going to supply the material made it
impossible for the offence to be committed. His submissions are recorded in terms
by the magistrate to include the contention that ‘the person incited must act with
a parity of mens rea to the inciter’. The appellant prosecutor contended that there
was no such rule of law and that it was possible for the officer to have committed the
offence since he had access to the material which he had been invited to supply.
The magistrate was referred to the cases of R v Shaw [1994] Crim LR 365 and R v Curr
[1968] 2 QB 944, (1967) 51 Cr App Rep 113. In explaining how he reached his conclusion
he said:
(a) The police officer had made it clear in is evidence that he had no intention of supplying
the Respondent with child pornography.
(b) Upon reading the cases of R v Shaw and R v Curr, that these decisions were binding
upon me and require the persons to whom the incitement is made to have a parity of
mens rea to the inciter.
(c) There was no evidence that the person incited had the required mens rea in that he
had no intention of actually supplying child pornography.
(d) Because the evidence of the police office was that the indecent material would not
have been supplied I was satisfied that the full offence could not have been committed
and was therefore impossible.
The questions he poses for the court, so far as they are relevant to the points which
have been argued before us, are:
(i) Was I correct to decide that the Respondent had not incited DC Tobin to distribute
indecent material because [he] never had any intention of doing so?
(ii) Was I correct in holding in law that the evidence of the police officer meant the
offence was impossible to perform?”
Before considering the two authorities referred to by the magistrate, it is helpful

to analyse the position from first principles, free from authority. Incitement, like
attempt and conspiracy, is an ‘auxiliary’ (as Lord Diplock would have it) or ‘inchoate’
(as the authors of text books would have it) offence. It is one of the ways in which
criminal responsibility attaches to conduct short of the commission of the full offence.
The actus reus of the offence is the indictment by the defendant of another to do
something which is a criminal offence. He must do so with the intention that if the
other person does as he asks he will commit a criminal offence. That is the mens rea.
On this analysis the intention of the person incited is entirely irrelevant. It is put in
Archbold at paragraph 33–70 as follows:
To solicit another to commit a crime is indictable at common law, even though the
solicitation or incitement is of no effect.
Blackstone refers also to the fact that the offence may be committed where the
person incited flatly refuses to commit the offence.
The nature of the offence of incitement is accurately defined in the draft Criminal Code
produced by the Law Commission in their paper No 177 at clause 47 which says:
A person is guilty of incitement to commit an offence or offences if:
(a) he incites another to do or cause to be done an act or acts which, if done, will involve
the commission of the offence or offences by the other; and
(b) he intends or believes that the other, if he acts as incited, shall or will do so with the
fault required for the offence or offences.”
On this analysis of the law there is no principle of parity of mens rea of the kind contended
for by the respondent and accepted by the magistrate. Were that to be the law, then all
the cases about agent provocateur would have been wrongly decided because in each
such case (where often the agent provocateur is a policemen) if it were a defence to the
defendant to say: ‘Well, the officer never intended to commit the offence which I asked
him to commit’, there would be no offence of incitement and many people would be in
prison for committing such offences who should not be.
I turn to the related topic of impossibility. Obviously if what the person incited is
asked to do is not a criminal offence the offence of incitement cannot be committed.
There are other situations in which impossibility will still be a defence to a charge of
incitement since this offence, unlike conspiracy and attempt, is not the subject of any
statutory modification; it exists, as it always has done, as an offence at common law.
The situations in which such a defence arise are helpfully summarised in Smith and
Hogan at pages 321 and 322. Having referred to Director of Public Prosecutions v Nock
[1978] AC 979, [1978] 2 All ER 654, which dealt with the position under the law of
conspiracy before the law was amended, the learned authors say:
The result of these decisions is that impossibility is a general defence at common law.
It seems that the only exception is that [the defendant] may be convicted where the
impossibility results from the inadequacy of the means used, or to be used, to commit the
offence. So, for example, [the defendant] will not be guilty of incitement where:
(i) The subject matter of the offence does not exist. D incites E to steal from P’s safe. P’s
safe is empty.
(ii) The victim of the offence does not exist. D incites E to murder P. P is already dead.
(iii) The subject-matter of the offence lacks some quality which is an element of the
offence. D and E believe a certain diamond to have been stolen. D incites E to receive it. It
has not been stolen.
(iv) The victim of the offence lacks some quality which is an element of the offence. D and
E believe P to be aged fifteen. In fact she is sixteen. D incites E to have sexual intercourse
with her.
With that analysis of the law free from authority, I turn to see whether the two cases
referred to by the magistrate compel one to modify the position.
In R v Shaw the defendant, S, was charged with incitement to obtain property by

deception. He was an after-sales co-ordinator for a company and he incited his senior
maintenance controller to accept and pay bogus invoices. His defence was that he
set up the scheme not to make a profit for himself, but to disclose to his employers
how easily the company’s security arrangements could be circumvented. He did
not tell his supervisor what his purpose was, but would eventually have done so.
The short report of the case in the Criminal Law Review which we have does not set
out the precise terms of the charge but it is clear that it alleged that S dishonestly
incited K dishonestly to obtain cheques from the company by the means which I
have described. The particulars of the offence also said that he had done so with the
intention of permanently depriving the company of the cheques. After the jury had
been sent out they returned with a note saying that they (or some of them) were not
sure whether the prosecution had established that what S had done was with a view
to profit for himself. In other words, they (or some of them) were disposed to accept
the defence he was running. The Court of Appeal allowed the appeal because the
judge, when faced with the note, had not given the jury an adequate direction about
that part of the particulars of the offence which alleged that the appellant had done
what he had with the intention of permanently depriving his employers by deception.
He should have told them that if they thought it possible that S was merely concerned
to demonstrate the insecurity of the system the verdict should be not guilty. In a case
where the principal issue was dishonesty and the jury were doubtful about whether S
had been dishonest one can well understand why the Court of Appeal was concerned
with how the judge had dealt with the note. There is nothing in the report which
shows why K’s mens rea was relevant. But it says:
Held, allowing the appeal, the jury were concerned with the proof of mens rea both of S
and of K, since both had to be considered.
It is this sentence which enabled Mr Sharpe to make the submissions he did. It has led
to much criticism which can be found in Archbold, Blackstone and in the Commentary
which immediately follows in the Criminal Law Report. This Commentary says:
The decision seems to be misconceived. If I tell Bill Sikes, the burglar, about the poor state
of security of my employer’s premises and encourage him to enter and steal therein, I
have surely incited him to commit burglary. I have tried to persuade him to do an act
which, when done, will, as I know, be the offence of burglary. How can it possibly be said
that I have not incited him to commit the offence? . . .
The court has confused the mens rea of incitement with the mens rea of the offence
incited.
There is then a reference to R v Sang [1980] AC 402, (1979) 69 Cr App Rep 282 in which
Lord Diplock indicated in terms that if a dishonest policeman, anxious to improve
his detection record, tries very hard with the help of an agent provocateur to induce
a young man with no criminal record to commit a serious crime, and ultimately the
young man reluctantly succumbs to the inducement, both the policeman and the
informer who had acted together in inciting to commit the crime should both be
prosecuted and suitably punished.
Shaw is a decision of the Court of Appeal and therefore binding on us. It can be
explained on its facts in the way I have attempted to do but it can also perhaps be
explained because the indictment specifically alleged that S had dishonestly incited
K to dishonestly obtain. It is not in my judgment therefore general authority for the
proposition that the person incited must act with the same parity of mens rea as the
inciter.
R v Curr (supra) is also binding on us. In that case the appellant was a trafficker in
Family Allowance books. His practice was to approach a woman with a large family
and lend her money on the security of her book. After signing some of the vouchers
the woman would hand them over to appellant as security. The appellant had a team
of woman agents whom he sent out to cash the vouchers. He kept the proceeds as
repayment of the loans and interest and then returned each book to its owner. He
was convicted of soliciting to commit a summary offence under the provisions of the
Family Allowance Act 1945. The offence charged was that he had solicited a woman
unknown to obtain on his behalf from Her Majesty’s Postmaster General the sum of
£2.18s as on account of an allowance, knowing that it was not properly receivable by
her. ‘Knowing’ was an essential ingredient of that offence under the 1945 Act. The court
held that the appellant could be guilty of soliciting only if the woman agent knew
that the action which she was asked to perform amounted to an offence. In giving the
judgment of the court, Fenton Atkinson J said:
In our view, the argument for the prosecution here gives no effect to the word ‘knowing’
in the section, and in our view the appellant could be guilty on count 3 only if the woman
solicited, the woman agent sent to collect the allowance, knew that the action she was
asked to carry out amounted to an offence.
It seems to me that all the court is saying in that case is that what the appellant was
doing was something short of asking the woman concerned to commit a criminal
offence. He was not inciting her to commit an offence because the offence required
her knowledge that she was committing an offence. There is nothing in the judgment
to suggest that the court was making any general pronouncement upon whether for
the offence of incitement it is necessary to prove that not only the inciter but also the
person incited had the mens rea to commit the full offence.
It follows from what I have said that I do not see anything in either of these two cases
which compels me to conclude that the law is not as I stated it to be in the earlier part
of this judgment. And it also follows that I do not think the magistrate was correct
when he found that the law requires that the person incited must have parity of
mens rea with the inciter. Applied to the facts of this case, it was not necessary for
the prosecutor to show that the officer intended to supply child pornography to the
respondent. His intention was irrelevant. The offence of incitement was committed
when he was asked to commit the offence of supplying child pornography with the
intention on the part of the respondent that in doing so he would be committing a
criminal offence.
The only basis upon which the magistrate found impossibility was that the police
officer would not supply the material. In considering whether there is a defence of
impossibility the court must look carefully at what it is that the person incited has
been asked to do. In this case the officer was asked to supply child pornography.
The fact that he did not intend to do so is irrelevant. The request made to the police
officer was in general terms for child pornography and one which he could have met
from material in the police’s possession, as the findings of the magistrate made clear.
The officer could therefore have committed the offence which he had been asked
to commit. It cannot therefore be said that it was impossible for him to do so. The
facts of this case do not fall within any of the categories of impossibility to which I
have referred. This is borne out by the decisions in R v Quail (1866) 4 F & F 1976 and R v
Fitzmaurice [1983] QB 1083, 76 Cr App Rep 17 to which we were referred.
For these reasons I think the magistrate reached the wrong conclusion in this case and
I would answer ‘No’ to each of the two questions which he has posed for this court. It
must follow that I would quash his decision.
30 Lloyd [1992]: Case Comment
Professor J.C. Smith

Criminal Law Review 1991.
Copyright © 1991 Sweet & Maxwell Limited and Contributors.



2010.

FOR EDUCATIONAL USE ONLY

Crim. L.R. 1991, DEC, 904-906
Criminal Law Review
1991
Case Comment
CRIMINAL DAMAGE ACT 1971, S.1(1) - DAMAGING PADLOCKS IN ORDER TO

REMOVE CLAMP
ON CAR
Copyright (c) 1991 Sweet & Maxwell Limited and Contributors
Case: Lloyd v D.P.P. Times, June 28, 1991 (QBD)

Legislation: Criminal Damage Act 1971 s.1
Subject: CRIMINAL LAW
Keywords: Criminal damage; Motor vehicles; Parking; Trespass to land
Abstract: Whether car owner had consented to risk of wheel clamping and
whether clamping was trespass.
*904 L parked his car in a private car park where there were prominent
notices to the effect that unauthorised vehicles would be immobilised and a levy
of £25 charged for release. When he returned to his car he found that it had been
clamped by agents of the owners of the land. He confronted the person who had
clamped his car, refused to pay the levy and left. Later he returned with a disc
cutter and cut two padlocks securing the clamp to the car. He was charged with
criminal damage to the padlocks. Before the magistrates' court he submitted that
the owners of the land had no right to clamp his car and that he was therefore
entitled to use reasonable force to recover his property. L was convicted and
appealed by way of case stated.
Held, dismissing the appeal, the court was bound by an unreported decision,
Stear v. Scott, March 28, 1984, D.C., a case on substantially indistinguishable facts,
unless that case had been decided per incuriam. (R. v. Greater Manchester Coroner
ex p. Tal & another [1985] Q.B. 67.) The court however agreed with the decision in
Stear v. Scott. It was true that a person could trespass on another's land to recover
his goods placed there by the wrongful act of the other (Clerk & Lindsell on Torts
16th ed. para. 23-28. Howson (1966) 55 D.L.R. (2d.) 582 (Canada); Devoe v. Long
[1951] 1 D.L.R. 203 (Canada) considered). However, that did not appear to extend
to cases where the owner of the chattel had been responsible for the chattel being
on the land; and immobilisation with a reasonable levy seemed a justified deterrent
to trespass by L. It was not however necessary to define the respective civil law
rights of
L and the owners of the land in the present case. The magistrates' court had
rightly found that L had consented to the risk of his car being clamped and he had
not validly withdrawn that consent; accordingly the clamping was not a trespass and
there was no defence to the charge of criminal damage to the padlocks.
Per curiam. Even if the clamping had been unlawful there was a lawful
alternative open to L: he could have paid the £25 under protest and sought to
recover it by civil action.
[Reported by Tom Rees, Barrister]
Can a person consent in law to his car being clamped? The argument that
clamping is an unlawful act to which a person cannot in law consent to
untenable. Public policy precludes a valid consent to some harms, notably death or
serious bodily harm; but the owner of property such as a car can consent to its
wanton destruction if he chooses, so he certainly can consent to its being clamped.
Unreasonable conditions. Whether the owner would be taken to have consented
to a wholly unreasonable condition is another matter. If the condition in the
hypothetical licence or contract discussed above were that cars not removed within
24 hours would be crushed, or forfeited to the owner of the car park, it seems likely
that the condition would be invalid at common law. The trespasser is not necessarily
in so favourable a position but arguably it would not be enforceable against him
either--he would not be held to have consented to anything so outrageous. If the
condition were invalid, breaking the locks would seem to be reasonable force to save
the car from the crusher.
Is clamping a car criminal damage? The court rejected L's argument that
clamping L's car was an offence of criminal damage, saying that there was no
evidence that any damage was caused to the car. This is not so clear. Machinery can
be damaged by removing a part so as to prevent it functioning: Tacey (1821) Russ.
& Ry. 452. A car would be "damaged" by removing the rotor arm so that it would
not go. If the car can be damaged by removing something, it seems logical that it
can be damaged by adding something. The effect of the attaching of the
clamp is no less drastic than the removal of the rotor arm. But even if the
clamping is "damage" it does not follow that it is criminal damage because it may be
that the clamper has the right to do it. Neither Stear v. Scott nor the present case
decides whether he has the right or not.
Ratio decidendi. The court said that Stear v. Scott was binding on them and the
present case was covered by it, but it is not entirely clear that the ratio decidendi of
the two cases is the same. Stear v. Scott seems to have been decided on the basis
that a person who has brought his chattel on to the land of another by trespass is
not entitled to retake it and is certainly not entitled to use force to do so. The
present case depends on the fact that L consented to the risk. The ratio decidendi of
Stear v. Scott seems broad enough to cover a trespassing motorist who was not
aware of a risk of clamping. [J.C.S.]
CRIMLR 1991, Dec, 904-906
31 Criminal Damage Act 1971, Section 10
10 Interpretation
(1) In this Act ‘property’ means property of a tangible nature, whether real or personal,
including money and
(a) including wild creatures which have been tamed or are ordinarily kept in
captivity, and any other wild creatures or their carcasses if, but only if, they have
been reduced into possession which has not been lost or abandoned or are in
the course of being reduced into possession; but
(b) not including mushrooms growing wild on any land or flowers, fruit or foliage
of a plant growing wild on any land.
For the purposes of this subsection ‘mushroom’ includes any fungus and ‘plant’
includes any shrub or tree.
(2) Property shall be treated for the purposes of this Act as belonging to any person
(a) having the custody or control of it;
(b) having in it any proprietary right or interest (not being an equitable interest
arising only from an agreement to transfer or grant an interest); or
(c) having a charge on it.
(3) Where property is subject to a trust, the persons to whom it belongs shall be so
treated as including any person having a right to enforce the trust.
(4) Property of a corporation sole shall be so treated as belonging to the corporation

notwithstanding a vacancy in the corporation.
32 Extract from R v Steer [1987] 2 All ER 833
R v Steer [1987] 2 All ER 833

Lord Bridge of Harwich: My Lords, in the early hours of June 8, 1985 the respondent
went to the bungalow of his former business partner, David Gregory, against whom
he bore some grudge. He was armed with an automatic .22 rifle. He rang the bell and
woke Mr. and Mrs. Gregory, who looked out of their bedroom window. The respondent
fired a shot aimed at the bedroom window. He then fired two further shots, one at
another window and one at the front door. Fortunately no one was hurt. It was never
suggested that the first shot had been aimed at Mr. or Mrs. Gregory.
Arising from this incident the respondent was arraigned on an indictment containing
three counts. He pleaded not guilty to possession of a firearm with intent to endanger
life, contrary to section 16 of the Firearms Act 1968 (count 1) and to an offence of
damaging property with intent, contrary to section 1(2) of the Criminal Damage
Act 1971, which was alleged in the particulars as originally framed as having been
committed ‘intending by the said damage to endanger the lives of David Gregory
and Tina Gregory or being reckless as to whether the lives of David Gregory and Tina
Gregory would be thereby endangered’ (count 2). He pleaded guilty to a separate
offence of damaging property, contrary to section 1(1) of the Act of 1971 (count 3).
Section 1 of the Act of 1971 provides:
(1) A person who without lawful excuse destroys or damages any property belonging to
another intending to destroy or damage any such property or being reckless as to whether
any such property would be destroyed or damaged shall be guilty of an offence. (2) A person
who without lawful excuse destroys or damages any property, whether belonging to himself
or another–(a) intending to destroy or damage any property or being reckless as to whether
any property would be destroyed or damaged; and (b) intending by the destruction or
damage to endanger the life of another or being reckless as to whether the life of another
would be thereby endangered; shall be guilty of an offence. (3) An offence committed under
this section by destroying or damaging property by fire shall be charged as arson.
It is to be observed that the offence created by subsection (2), save that it may be
committed by destroying or damaging one’s own property, is simply an aggravated
form of the offence created by subsection (1), in which the prosecution must prove,
in addition to the ingredients of the offence under subsection (1), the further mental
element specified by subsection (2)(b). In this case presumably count 2 was intended
to relate to the damage done by the shot fired at the bedroom window and count 3 to
the damage done by one or other or both of the other two shots. It is also significant
to note the maximum penalties attaching to the three offences charged. For an
offence under section 16 of the Act of 1968 it is 14 years’ imprisonment, for an offence
under section 1(2) of the Act of 1971 life imprisonment, for an offence under section 1(1)
of the Act of 1971 10 years’ imprisonment.
At some stage in the trial the particulars of count 2 were amended by deleting the words
alleging an intent to endanger life and leaving only recklessness in that regard as the
mental element relied on to establish the offence under section 1(2). The prosecution it
appears, presented the case on the footing that counts 1 and 2 were alternatives and, if
the case had been left to the jury, the judge would presumably have directed them that,
if they found that the respondent intended to endanger the lives of Mr and Mrs Gregory
they should convict on count 1, but if they found that he was merely reckless with regard
to such danger, they should acquit on count 1 and convict on count 2.
At the conclusion of the case for the prosecution, however, counsel for the respondent
submitted that there was no case to answer on count 2 on the ground that, in so far as
the lives of Mr and Mrs Gregory had been endangered, the danger had not been caused
by the damage done to the bungalow, but by the shot fired from the respondent’s
rifle. Of course, it is obvious that any danger to life in this case was caused by the
shot from the rifle itself, not by any trifling damage done to the bedroom window
or to any property in the bedroom. But the judge rejected counsel’s submission and
accepted the submission made for the Crown that the phrase in section 1(2)(b) of the
Act of 1971 ‘by the destruction or damage’ refers on its true construction not only to
the destruction or damage to property as the cause of the danger to life on which the
mental element in the aggravated offence under the subsection depends, but also to
the act of the defendant which causes that destruction or damage.
On the basis of the judge’s ruling the respondent changed his plea to guilty on count 2.
He appealed against conviction on the ground that the judge’s ruling was erroneous.
The Court of Appeal (Criminal Division) (Neill L.J., Peter Pain and Gatehouse JJ.) allowed
the appeal, but certified that their decision involved a question of law of general
public importance in the following terms:
Whether, upon a true construction of section 1(2)(b) of the Criminal Damage Act 1971, the
prosecution are required to prove that the danger to life resulted from the destruction of
or damage to the property, or whether it is sufficient for the prosecution to prove that it
resulted from the act of the defendant which caused the destruction or damage.
The Crown now appeals by leave of your Lordship’s House.
We must, of course, approach the matter on the footing, implicit in the outcome of the
trial, that the respondent, in firing at the bedroom window, had no intent to endanger
life, but accepts that he was reckless as to whether life would be endangered.
Under both limbs of section 1 of the Act of 1971 it is the essence of the offence which
the section creates that the defendant has destroyed or damaged property. For the
purpose of analysis it may be convenient to omit reference to destruction and to
concentrate on the references to damage, which was all that was here involved. To be
guilty under subsection (1) the defendant must have intended or been reckless as to
the damage to property which he caused. To be guilty under subsection (2) he must
additionally have intended to endanger life or been reckless as to whether life would
be endangered ‘by the damage’ to property which he caused. This is the context in
which the words must be construed and it seems to me impossible to read the words
‘by the damage’ as meaning ‘by the damage or by the act which caused the damage.’
Moreover, if the language of the statute has the meaning for which the Crown
contends, the words ‘by the destruction or damage’ and ‘thereby’ in subsection (2)(b)
are mere surplusage. If the Crown’s submission is right, the only additional element
necessary to convert a subsection (1) offence into a subsection (2) offence is an intent
to endanger life or recklessness as to whether life would be endangered simpliciter.
It would suffice as a ground for dismissing this appeal if the statute were ambiguous,
since any such ambiguity in a criminal statute should be resolved in favour of the
defence. But I can find no ambiguity. It seems to me that the meaning for which the
respondent contends is the only meaning which the language can bear.
The contrary construction leads to anomalies which Parliament cannot have intended.
If A and B both discharge firearms in a public place, being reckless as to whether life
would be endangered, it would be absurd that A, who incidentally causes some trifling
damage to property, should be guilty of an offence punishable with life imprisonment,
but that B, who causes no damage, should be guilty of no offence. In the same
circumstances, if A is merely reckless but B actually intends to endanger life, it is
scarcely less absurd that A should be guilty of the graver offence under section 1(2) of
the Act of 1971, B of the lesser offence under section 16 of the Firearms Act 1968.
Counsel for the Crown did not shrink from arguing that section 1(2) of the Act of 1971
had created, in effect, a general offence of endangering life with intent or recklessly,
however the danger was caused, but had incidentally included as a necessary, albeit
insignificant, ingredient of the offence that some damage to property should also
be caused. In certain fields of legislation it is sometimes difficult to appreciate the
rationale of particular provisions, but in a criminal statute it would need the clearest
language to persuade me that the legislature had acted so irrationally, indeed
perversely, as acceptance of this argument would imply.
It was further argued that to affirm the construction of section 1(2)(b) adopted by
the Court of Appeal would give rise to problems in other cases in which it might
be difficult or even impossible to distinguish between the act causing damage to
property and the ensuing damage caused as the source of danger to life. In particular
it was suggested that in arson cases the jury would have to be directed that they
could only convict if the danger to life arose from falling beams or similar damage
caused by the fire, not if the danger arose from the heat, flames or smoke generated
by the fire itself. Arson is, of course, the prime example of a form of criminal damage
to property which, in the case of an occupied building, necessarily involves serious
danger to life and where the gravity of the consequence which may result as well from
recklessness as from a specific intent fully justifies the severity of the penalty which
the Act of 1971 provides for the offence. But the argument in this case is misconceived.
It is not the match and the inflammable materials, the flaming firebrand or any other
inflammatory agent which the arsonist uses to start the fire which causes danger to
life, it is the ensuing conflagration which occurs as the property which has been set
on fire is damaged or destroyed. When the victim in the bedroom is overcome by the
smoke or incinerated by the flames as the building burns, it would be absurd to say
that this does not result from the damage to the building.
Counsel for the Crown put forward other examples of cases which he suggested
ought to be liable to prosecution under section 1(2) of the Act of 1971 including that
of the angry mob of striking miners who throw a hail of bricks through the window
of the cottage occupied by the working miner and that of people who drop missiles
from motorway bridges on passing vehicles. I believe that the criminal law provides
adequate sanctions for these cases without the need to resort to section 1(2) of the
Act of 1971. But if my belief is mistaken, this would still be no reason to distort the plain
meaning of that subsection.
Some reference was also made to damage caused by explosives. This is the subject of
specific provision under the Explosive Substances Act 1883 (46 & 47 Vict c3) as amended.
The offence created by section 3(1)(a) of that Act as substituted by section 7(1) of the
Criminal Jurisdiction Act 1975, of doing ‘any act with intent to cause ... by an explosive
substance an explosion of a nature likely to endanger life, or cause serious injury to
property’ obviates the need to resort to the Act of 1971 when explosives are used.
The trial judge was, it seems, in large part persuaded to rule as he did in reliance on
a sentence from the judgment of the Court of Appeal (Criminal Division) delivered
by Parker L.J. in Hardie (1984) 80 CrAppR 157, [1985] 1 W.L.R. 64, 67, where he said in
reference to the state of mind of a defendant who commits the actus reus of an alleged
offence under section 1(2) of the Act of 1971:
If, when doing that act, he creates an obvious risk both that property will be destroyed and
that the life of another will be endangered and gives no thought to the possibility of there
being either risk, the requirements of the subsection are in our judgment clearly satisfied.
Hardie was concerned solely with the effect of self-administered tranquillising drugs
on the state of mind of the defendant. It had nothing whatever to do with the issue
of causation arising in the instant case. If I may say so without offence, the judge’s
error vividly illustrates the danger, which is particularly acute in the field of statutory
construction, of reading a judicial dictum entirely out of context and treating the
precise words used as relevant to the decision of an issue to which the author of the
words had never applied his mind.
I can well understand that the prosecution in this case thought it necessary and
appropriate that, even if they could not establish the intent to endanger life necessary
to support a conviction under section 16 of the Act of 1968, they should include a
count in the indictment to mark in some way the additional gravity of an offence of
criminal damage to property in which a firearm is used. But they had no need to resort
to section 1(2) of the Act of 1971. A person who, at the time of committing an offence
under section 1 of the Act of 1971, has in his possession a firearm commits a distinct
offence under section 17(2) of the Act of 1968: see Schedule 1 to the Act of 1968, as
amended by section 11(7) of the Act of 1971. If the respondent had been charged with
that offence in addition to the offence under section 1(1) of the Act of 1971, he must
have pleaded guilty to both and, if the prosecution were content to accept that there
was no intent to endanger life, this would have been amply sufficient to mark the
gravity of the respondent’s criminal conduct in the incident at the Gregory bungalow.
I would accordingly dismiss the appeal. The certified question should be answered as
follows:
Upon the true construction of section 1(2)(b) of the Criminal Damage Act 1971 the
prosecution are required to prove that the danger to life resulted from the destruction
of or damage to property; it is not sufficient for the prosecution to prove that it resulted
from the act of the defendant which caused the destruction or damage.

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Criminal law

uu Mary Luckham, Assistant Director, University of London Laws Programme

© University of London 2010

1 Textbook of criminal law Chapter 1: ‘Crime and the criminal

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Criminal law Course (LLB, Diploma).

This material relates to the Criminal law subject guide, Chapter 1.

2 Textbook of criminal law Chapter 3: ‘Intention’, pp.70–74

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4 Extract from ‘Insanity, automatism, and the burden of proof

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5 Criminal law theory and doctrine, Chapter 4, ‘The actus reus’

Andrew Simester and Robert Sullivan

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6 Criminal law theory and doctrine, Chapter 4, ‘The actus reus’

Andrew Simester and Robert Sullivan

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7 Lord Lane’s judgment in R v Stone; R v Dobinson [1977] QB

This material relates to the Criminal law subject guide, Chapter 4.

Then, at a later stage in the direction:

As to sentence, it is submitted on behalf of the appellant Stone that a term of three

8 European Convention on Human Rights and Fundamental

This material relates to the Criminal law subject guide, Chapter 4.

9 Textbook of criminal law Chapter 16: ‘Causation’,

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4.  Section 1 of the 1971 Act provides:

(a)  intending to destroy or damage any property or being reckless as to whether any

(b)  intending by the destruction or damage to endanger the life of another or being

30.  That conclusion is by no means determinative of this appeal. For the decision in R

32.  First, it is a salutary principle that conviction of serious crime should depend on

34.  Thirdly, I do not think the criticism of R v Caldwell expressed by academics, judges

38.  A further refinement, advanced by Professor Glanville Williams in his article

(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 it will occur;