CRIMINAL DAMAGE

AR MR
Simple  Destroy or damage* -Intention or recklessness
crim.  Expense involved in restoring property to previous condition as to destroying or
damage - (Drawing with soluble chalk – Hardman)
 Whether damage caused matter of fact and degree determined in damaging such property
S 1(1) commonsense way – Roe v Kingerlee
CDA
and
1971
 Property
 Tangible property, incl. money, tamed animals (s 10(1)),
Always plants (except growing wild – see CDA 1971)
-Know that property
start  Not if ‘thing in action’, e.g. credit or bank account belongs to another or be
with SCD reckless as to whether
!!  Belonging to another property belongs to
 Defined under s. 10(2) – incl. own property in which
someone else has interest (eg co-owner or bank, if mortg.)
another
If honestly believes that property his
 Not guilty if wholly your own
own, lacks MR – R v Smith (tenant
believed fixtures his own)
*If damage caused by fire (incl. bomb
explosion), charged as simple arson – s1(3)
Conclude: liable/not liable for
SCD/arson
Aggrava  Destroys or damages* -Intention or recklessness
ted  As above as to destroying or
S. 1(2) damaging such property
 Property
Go on  As above and
to ACD
only if  Can belong to defendant or another -Intention or (Cunningham)
suggest recklessness as to thereby
ed on endangering the life of
facts ! another (‘ulterior’ MR point)
 Intention/recklessness that
* If damage caused by fire, charged as D by damage endanger life
– R v Steer (not by
aggravated arson – s1(3) shooting itself)
 No need for actual danger
to life – R v Dudley
Conclude: liable/not liable for ACD/arson (firebomb thrown in house,
but fire quickly
(can be both SCD and ACD !) extinguished)
Special Lawful excuse – s.5:  D believes tent is fireproof
– no MR (neither intention
defence Complete defence to Simple CD/arson,
nor recklessness)
but not aggravated
 D believes 14-yr old not
1) S. 5(2)(a) – belief by D that person whom he believed entitled to liable for arson – guilty as
consent to damage either: mistake as to criminal law
 -had consented (even for fraud. purpose – R v Denton); or no defence(cf. mistake as
 -would have consented had he know of circums. to civil law – defence)

2) S. 5(2)(b) – purpose of D was to protect his own/another’s property  S. 5(2)(a):

in belief that:
 It needed immediate protection, and o no belief if D merely
 The means used were reas. in circums. thought that owner ought
to have consented or moral
right
NB If pet in car, could claim both 5(2)(a) and 5(2)(b) o mistake as to actual owner
OK as long as honestly
believes
 Belief need not be reas./justified, provided it honestly held. o misheard the owner
(‘break’ instead of ‘check’)
 D can rely on mistaken belief, even if due to voluntary OK, as long as honestly
intoxication (Jaggard v Dickinson) believed

 appl to facts – reckless as

to endanger – saw the light
on in the building before
throwing the bomb
 Car into wall – damage
must be by bricks, not car;
is chased, panicks, so
poss. not even reckless
 Offence AR MR
OAPA 1861, s Wound or cause GBH Intent to cause GBH
18
GBH= really serious psychiatric harm –
(DPP v Smith) – question for jury
or
Unlawful and
malicious
wounding or GBH can include really serious ‘Maliciously’ ie
causing GBH psychiatric harm-Burstow intention/recklessness
with intent to: (Savage/Parmenter)
as to ABH plus with
Wound (gash)=breaking two layers of intent to resist/ prevent
(a) cause GBH or outer skin (Moriarty) – incl. scratch, if arrest (ulterior)
bleeding, cut lip
If plainclothes policeman,
(b) resist/prev no intent to resist, as no
ent arrest knowledge of being
Bruising or internal bleeding not wounds arrested
(JJC v Eisenhower), but severe int.
Bleeding can be GBH

OAPA 1861, s Wound or inflict GBH (as above) ‘Maliciously’ ie

20 intention/recklessness
as to ABH (Savage/
Parmenter)
Unlawful
wounding or
inflicting GBH
OAPA 1861, s Simple/physical assault causing ABH (can Intention/ recklessness as
47 include psychiatric harm - Ireland) to the simple/physical
assault
 ABH – ‘interf. with health and
Assault
comfort of V’ (Miller)  no need for D to have
occasioning ABH
 More than ‘transient and trifling’ intended/ foreseen the
(CPS guidelines) ABH- ie strict liability as
Defence:
Cannot consent  Incl. black eye, nose bleeding (not to
outer skin), cutting subst. Part of hair ABH(Savage/Parmenter)
to ABH or
higher (DPP v Smith)
Physical assault Infliction of unlawful personal force upon the Intention/ recklessness
CJA 1988, s39 victim
as to such infliction
(and
 Incl. indirect appl. of force – eg
common law) placing an obstacle so V falls(DPP v K),  If PA/SA follow
setting a dog on V, punch mother to cause after s 47, say “MR –
baby to fall (Haystead v CC Derbyshire) see above ‘(as
identical)

Simple assault Acts/words which cause the victim to Intention/recklessness as to the victim
apprehend immediate and un lawf ul personal apprehending such force (R v Venna)
CJA 1988, s 39 force (Fagan)
(and
Recklesness in Cunningham subj. Meaning
Apprehension: turned back, dark, overhear words (conf. in R v Spratt)
common  Immediacy: enough if V fears force could
occur immediately (R v Burstow – stalking/letter over
law) years – victim feared D could strike at any moment)
 Incl. conditional threats (Coker)
 Words alone (R v Ireland)
 Silent tel. Calls (R v Ireland – depend on
impact, one not enough, a pattern)

CPS guidelines:Phys. assault and ABH distinction – depends on signif. of med. Interventio/permanence of effects
-ABH if number of stitches/hosp. Procedure under anesthetic
-Psych. ABH – should be more than mere emotions of fear, distress, panic
-GBH – perm. disability, loss of sens. function, visible disfigurement, broken limbs/bones, inj. req. transfusion or
lengthy treatment
– s. 18 intent factors (to distinguish from s .20): repeated/planned attack, delib. selection/adaptation of weapon,
prior threats, targeting Vs head.
– Factors to distinguish attempted murder (s.1(1) CAA 1981) from s. 18: intent to kill only !, calculated planning,
 deadly weapon, severity/duration of attack, threats (but not mere bravado).
-In exam: If no wound/serious harm on facts, start with s 47. Otherwise, always start with s. 18 – never s. 20 !!!
-
 SEXUAL OFFENCES MR
Rape
S 1 SOA 1.Intention as to penetration
2003 1. the penile penetration by the
defendant of the vagina, 2. Absence of reasonable
anus or mouth of another belief in consent (obj. test)
person; consent features twice in
the offence of rape:
2. who at the time does not
consent to the penetration. (a) as an element of
the actus reus – there must
 Both man and women can be an actual lack of
be V consent on the part of the
 Only men can be D (as victim; and
penile)
 Women can be accomplice (b) as an element of
eg gave physical assist. by the mens rea – whether the
restraining V defendant reasonably
believed his victim was
 Penile: s 79(3) i n c l . consenting.
part surgically
Define consent under
constructed (in
s74 (factors – did D ask
particular through
V? take any steps to
gender reassignment
ascertain consent ?),
surgery)’-covers
apply to facts, then use
transsexuals.
presumptions as to
 Any degree of consent (AR+MR):
penetration suffice. 1. Irrebutable
Penetration is a (conclusive) presumption
continuing act (s 79(2)) under 76 (2):
and any withdrawal of
consent by the victim a.Nature/purpose deceived
during penetration
R v Jheeta – led to believe
suffices.(R v Kaitamak).
however, no AR if D police will fine – still V
withdrew as soon as knew nature-no concl.
the victim changed his presumption, but still
or her mind. lacked consent under s.
74;
 Drunken consent: If,
Assagne – consent only if
through drink (or any
use condom, s76 not
other reason) the
triggered, but still no
complainant has
consent under s 74)
temporarily lost her
capacity to choose R v Devonaid – posed as
whether, she is not woman on Internet – V
consenting, so this deceived as to purpose)
would be rape (R v
Bree) b.Impersonating other
 o Distingusih actual
consent from mere
submission
o R v Kirk: V homeless
in return for money –
no consent
person
2. Rebuttable – under s. 75
(a)-(f)-only pick relevant
one in exam
-D can rebut these by
producing evidence to the
contrary

Assault by 1. penetration by the 1. an intentional (ie

Penetratio defendant of the vagina or deliberate) penetration
n anus of another person (B) of B’s vagina or anus by
S2 with a part of the defendant’s the defendant; and
body or anything else;
Usually 2. a lack of reasonable
woman not 2. the penetration is sexual; belief by the defendant that
liable and B consents.
(p.173)

3.B does not consent to the

penetration.

Incl. tongue, finger, bottle,.

However, if penile – CPS will
charge with rape (s.1)
Sexual
assault s 3 (a) he intentionally touches another person (B);
(b) the touching is sexual;
(c)B does not consent to the touching;
If touching is 1.an intentional (ie deliberate) touching; and
not sexual,
may still fulfil
AR of phys. 2.a lack of reasonable belief by the defendant that B consents.
assault !!! Touching incl. penetration and also touching with any part of the
body or anything else and through anything (eg through
clothing).
R v H - touching of an individual’s clothing (trouser pocket) was
sufficient the touching of an individual’s clothing was sufficient,
so undressing – in itself sexual touching !

Sexual – s. 78 – objective test (but D’s motive taken into

account under 78 (b).
a.If clearly sexual – apply 78(a)
b.If ambiguous, use 2 –part obj. test under s 78(b) - for jury;
1) reas. people – could be sexual ?; 2) had in fact been
sexual ?

Children  S 5-7 replicate s 1-3: but consent is irrelevant both as AR and

as victims MR; also, strict liability as to Vs age (belief irrelevant, day before
13th birthday also counts)

 S 9: between 13-15, reas. belief matters (factor – how phys. and

metally mature did V appear ?), under 13 – irrelevant; can be
committed only if D aged 18 or over (no defence for lawfully
married foreign couples – CPS guideline)

 S13 replicates s9 for D who is under 18 (lower sentence)

 Under s 5-7 and 13 any consensual sexual touching between
adolescents potentially criminal, but CPS will not prosecute
unnecessarily
NB in exam mention all offences, e.g. sexual intercourse will entail both s1, s2 and
s3 (touching) – indicate ALL !!!
V under 13 does not commit offence, as cannot be a secondary party to offence
committed against herself – Tyrell point
Consider Ds actions separately: eg undressing – sexual touching; then separately,
intercourse – rape and if no time just mention alt. charges under s 2 and s3 may be
brought
Even if touching not sexual, can be phys. assault !!!

MURDER
AR – Unlawful killing of a person (Coke)

Child must be expelled from mother and be alive (draw breath) (Poulton)
A-G Ref no. 3-stabbed mother – child born prematurely and died – no murder, because born alive, but guilty of constr. mansl.

Time of death: irrevers. death of brain stem (Malcherek& Steel)

Causation:1.Factual: But for Ds conduct, would Vs death occur in the way it did ? (White)- Acceleration of death must be
‘significant’=’more than negligible’ (Cheshire)

2.Legal: 1st limb(always use) Operating and substantial cause of Death (Malcherek & Steel); 2nd limb (if NIA)- foreseen or
foreseeable by reas. Person that such event would occur in normal course of events \ Eg MRSA while in hospital – satisfies both limbs
Ds conduct need not be sole cause, so long as ‘significant’=more than negligible (Pagett)

If not phys. Inflicted – esp. older V – whether death foreseen or foreseeable (R v Watson – old V with heart disease abused)

Medical negligence breaks the chain only if ‘independent of Ds act and potent in causing death, as to make Ds act insignif.” (Cheshire)

D must take victim as he finds him – McKechnie; whole man, no just phys. – incl. religious beliefs - Blaue

MR – Intention to kill or cause GBH (Direct (eg ‘glad she’s dead’, repeated stabs) - Moloney/Indirect - Nedrick-Woollin)

Voluntary manslaughter (under s 2(3) Homicide Act 1957 or Coroners and Justice Act 2009 s 54(7)), if partial defences of:

A)Diminished responsibility (s 2 Homicide Act 1957) – 4 (!) elements:

1. Abnormality of mental functioning

2. Which arose from recognized medical condition (found in accepted classif., such as WHO ICD-10)
3. and Substantially (=’more than trivial/minimal’ – Lloyd) impair Ds ability to do one or more things in 2(1A)
4. Must provide explanation for Ds acts/omissions, ie be signif. (=more than merely trivial) factor- Eagle

 Defence of DR not precluded by fact that D consumed alcohol before killing- juryl will consider only alcohol consumed as result of the illness (eg
CONSTRUCTIVE
chronic alcoholism), and ignore alcohol voluntarily consumed-MANSLAUGHTER
R v Wood

B) Loss of control (evidential burden on D – suff. to raise issue- 54(5)) - 3 (!) elements to be satisfied – s 54 (1)a-c:
1.UNLAWFUL ACT (pick one – don’t go thru entire ladder): must be a crime req. MR of
intent/recklesness
1.Ds acts resulted from Ds loss of control:(no
no negligence crime 54(2);
need to be sudden – so egnocareless/dangerous drivingkilling–
LoC if revenge (incl. ‘honour’ not suff.)
54(4))

2.Loss of control-If
had
noaunlawful
qualifying act
trigger
– no(inliability
s 55): Extremely graveUA
(R v Lamb)\ – obj. test forassault,
- usually jury (so eg
butdishonor
can alsowould fail); damage
be crim. sex. Infidelity in itself&noJones-
(Newbury enough – R v
Clinton; 55(4) – subjective test – whether D himself feared.
pushed stone from bridge on train), theft or burglary (Bristow- ran over while driving away from burglary scene)|
 55(6) a & b – no defence, if D himself incited violence or wronged
-Must Be Positive Act, not an omission (R v Lowe- neglected child – no liability)
3. Person of Ds sex and age reacted in same way (but in assessing the seriousness of wrongedness (only) court may take into account Ds other characteristics
- A-G for Jersey 2. Unlawful act must be DANGEROUS= ‘carries risk of some harm, albeit not serious’ – objective test
v Holley)
(whether sober & reasonable person present at the scene of the act would consider it dangerous)- Church/DPP v
Law Commission: Child has lower capacity to control
Newbury/Dawson/Watson. his acts
R v Ball and emotions;
– thought women mayjust
blank cartridges, react more quickly
wanted than men
to frighten: UA to threats
– s47 of violence
(could also beand have lower
capacity for self-restraint when faced with threats
simple/phys. Assault), court found dangerous,
NB s 54(6) – judge’s discretion to decide whether enough evidence o raise LoC as issue; 54(8) – successful LoC of one party does not preclude murder charge
of another party3.UA must CAUSE VICTIM’S DEATH – Factual + Legal causation as above
to killing.
 MANSLAUGHTER BY GROSS NEGLIGENCE

1. Duty of care owed by D to V (matter for jury once judge decided there is evidence
capable of est. duty – R V Willoughby). When clear duty (eg doctor-patient) judge can direct
the jury that duty exists
2. Breach of the duty of care.
3. Risk that Ds conduct could cause death (‘circum. such that a reas. person would
foresee a serious and obvious risk not merely of injury, but of death’ – R v Singh)
4. Evidence that BoD did cause the death of V.
5. D fell so far below the standard of reas. Person in that situation that he can be
labeled grossly negligent and deserving criminal punishment.

 No need for intention/recklessness, negligence suffices !

 Could be also through omission to act, but only when there is duty of care –
conf. in R v Khan (spec. rel. - parent, doctor; contractual) !
 In Khan – D supplied 15yr old with heroine – conviction quashed as unsafe as duty of care not
considered by court

Causing death by dangerous driving (s1 Road Causing death by careless driving(s2B Road
Traffic Act 1988) Traffic Act 1988)
CORPORATE MANSLAUGHTER (s 1(1) CMCHA 2007)
Prosecution
The prosecution must
must prove that: show that: Prosecution must show that:

1. Dis Drelevant ‘organisation’

caused death of anotherunder
(as above)  Degcaused
s 1(2) – spell out which type deathetc
corporation of another (as above)
 By drivingowes
2. Organisation mech.aprop.
dutyvehicle  Bysubsection
of care to the deceased: use relevant in s 2;prop.
driving mech. MoJ vehicle
Guidance – no new duties
under Act, just codifies
 dangerously existing
(as under under
s 2A civil
– ‘far law ofcompare
below’-  of
negligence; question lawdue
w/o – decided by judge
care (as under s 3ZA)
3. Organisation
with 3ZA – breaches that duty
merely ‘below’)  on road or other public place
 on
4. The breach
road causes
or otherdeath: use general causation principles as above
public place
5. The breach is a gross breach: ‘far below’– s 1(4);
 factors for jury: in 
s 8 (2)
If D–guilty
mustof; Dangerous,
s 8(3) – may
he(!)
will‘attitudes,
be autom. eg failure
guilty to actually
of careless too – enforce policy
set out both in exam
  If Vehicle not mech. propelled, could still be guilty for Gross.Negl. Manslaughter
under s 8(3) consider not just ‘documented policy’, but also ‘corporate culture’, what is actually happening on the ground; also
any previous ‘near miss’ ?
6. Substantial element of the breach is the way activities were managed or organized by senior
management
 S 1(4)(c) covers both 1)decision –making (strategic) and 2) ‘hands-on’ types of management
 Failures of diff. managers can be aggregated – incl. poor training of frontline staff, poor management at operational level, incl.
failure to manage risks eg failure to make ‘suff. assessment of risk’ (HSA 1974)
 ‘Inappropriate delegation of H&S matters by senior management’ also covered – MoJ Guideline
Penalties: 1)unlimited fine (seldom less than 500, 000);2) order to remedy (s9);3) order to publicise (s10);4)disqual. Of dir. (1986 Company
Dir Disqual Act 1986)
-Consider always charge of Gross Negl Manslaughter (clear duty of care as employer) against director/manager!!!
-However, cannot be accomplice to corporate manslaughter – as under s 18 – no individ. liability for corp. mansl.