LA1010 Criminal law Pre-exam Update 2021

The current edition of the module guide was published in 2020.

The following developments should be noted:

CHAPTER 7: CRIMINAL HOMICIDE

7.4.13 Causation
In R v Broughton [2020] EWCA Crim 1093, the defendant supplied the deceased, his girlfriend,
with Class A drugs at a pop festival. She experienced a bad reaction to the drugs. Although the
defendant stayed with her throughout, he did not seek any form of medical assistance. The
appellant appealed to the Court of Appeal against his conviction for gross negligence
manslaughter. The key question for the Court was whether it had been established to the
criminal standard that his failure in breach of duty to seek medical help caused the victim’s
death. The expert witness at trial testified that the victim stood a 90 per cent chance of survival
with medical intervention. On this evidence, the defence made a submission of no case to
answer on the basis that the criminal standard required proof of causation beyond reasonable
doubt and a 10 per cent chance of death intervention was a small chance but not so small that it
put causation beyond (reasonable) doubt. The defendant’s appeal against conviction was
allowed. It was not enough, as the prosecution had alleged, that the victim was deprived of a
‘significant and substantial chance of survival’. The question to ask is whether the medical
assistance would have saved her life. Given that there was a time lag between taking the drug
and her reaction, it was not certain to the criminal standard that it would.

CHAPTER 8: RAPE
8.4.3 Section 74 – the statuory definition of consent
R v Lawrence [2020] EWCA Crim 971
On the basis of the defendant’s deception that he had had a vasectomy and so was not fertile,
the complainant agreed to sexual intercourse. He was charged with rape. The question for the
court was whether his deception vitiated her consent. At first instance, the court found that it
did. Quashing the conviction, the Court of Appeal ruled that
unlike the woman in Assange, or in R (on the application of F) v DPP, the complainant
agreed to sexual intercourse with the appellant without imposing any physical
restrictions. She agreed both to penetration of her vagina and to ejaculation without the
protection of a condom. In so doing she was deceived about the nature or quality of the
ejaculate and therefore of the risks and possible consequences of unprotected
intercourse. The deception was one which related not to the physical performance of the
sexual act but to risks or consequences associated with it.
8.6.1 Intention to penetrate
R v Gabbai [2019] EWCA Crim 2287
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LA1010 Criminal law Pre-exam Update 2021

In Gabbai an often under remarked aspect of the crime of rape was at issue, namely the
requirement that the prosecution prove not only non-consensual penetration of the vagina or
anus but also that the penetration was intentional. In the case where following consensual
vaginal penetration the defendant penetrated the complainant’s anus without consent, the
prosecution must prove that this penetration was intentional and not accidental as where, for
one reason or another such as intoxication, the defendant mistakenly thought he was
penetrating the vagina.

CHAPTER 11: DEFENCES 2: AFFIRMATIVE DEFENCES

11.2 Public and private defence including self-defence
In R v Demario Williams [2020] EWCA Crim 193 the Court of Appeal refused leave to appeal
against conviction of a youth who had killed in the course of trying to recover property stolen
from him. The Court said that force could never be used to recover property once that robbery
or theft was completed. This was not within the coverage of s.3 of the CLA 1967.

CHAPTER 12: PROPERTY OFFENCES

12.1.4 Mens rea: theft
In R v Barton and Booth [2020] EWCA Crim 575 the Court of Appeal confirmed that the obiter
comments as to the test for dishonesty – set out in the judgment of Lord Hughes in Ivey v
Genting Casinos [2017] UKSC 67 – constitute the law to be applied when an issue arises as to
dishonesty. The test in Ghosh, was abandoned in favour of the test that it replaced, which
inquired simply whether the defendant’s conduct was dishonest by the standards of ordinary
decent people, the test formulated in Feely (1973). The subjective question of whether the
defendant appreciated that his behaviour was dishonest by those standards no longer applies.

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