Updates since the start of MT 2016 are highlighted below.

Criminal Law Core Reading List - Mods

October 2017

This document is the core reading list for the criminal law Mods course. If you are studying
criminal law for FHS on the 2nd BA please refer instead to the Criminal Law Core Reading
List – FHS, which is slightly different.

This list is intended for guidance, not necessarily as a replacement for tutors’ lists, though it is
also anticipated that some tutors will want to adopt it as it stands and it has been designed with
that use in mind. References in bold type are regarded as particularly important, or are very
recent decisions of relevance. They should be treated as the core of the core. Examiners are
entitled to assume that all candidates know this material, but it is a very bare minimum.
References in standard type generally appear in most tutors’ lists, but tutors may wish to omit,
vary or add to them, subject to the overall Faculty rule that the subject should not require more
than 30 hours work per week for 8 weeks (7 weeks for FHS – see above). Subject to that rule,
decisions as to the division of topics between weeks, the boundaries of each week’s work, and
additional instructions (asterisks, essay titles, problems, points of guidance, etc) are matters for
tutors.

Your criminal law course for Law Mods should include at least 6 tutorials and two classes with
your tutor. In addition to this there will be various lectures over Michaelmas and Hilary terms as
indicated in the lists below.

For details of the precise syllabus, course description, examination details etc please refer to the
Criminal Law Course Description and Regulations – Mods document, [hyperlinked once
available] also available on the criminal law weblearn site.

Books and reading

You may find that your tutor recommends one or more of the following books:

Ashworth and Horder, Principles of Criminal Law (OUP, 8thed 2016)

AP Simester and GR Sullivan, Criminal Law: Theory and Doctrine (6thed, Bloomsbury, 2016)
JC Smith and B Hogan, Criminal Law (14th ed, OUP, 2015 by D Ormerod and K Laird)

M Allen, Textbook on Criminal Law (14th ed 2017)

J Herring, Criminal Law, Text, Cases and Materials (7th ed 2016)
CMV Clarkson and HM Keating, Criminal Law: Text and Materials (8th ed 2014; 9th ed due end
September 2017 so cannot have updated pages at this stage)
JC Smith and B Hogan, Criminal Law, Cases and Materials (12th ed 2017 by D Ormerod and K
Laird)
At the top of each topic listed below you will find references to the relevant parts of each
textbook and casebook for that whole topic. You can treat these as alternatives and it may well be
that this is one of the matters on which your tutor gives you further guidance. However, you
should remember that different authors will take different approaches to the material, and that
textbooks and casebooks should always be supplemented by reading the relevant cases in the law
reports. Reading too narrowly and neglecting case reports and academic analysis, particularly
recent cases and articles, will put you at a serious disadvantage. This is particularly so given that
the exam paper requires you to answer at least 2 problem questions and one essay question
(see above).

In addition, your College will give you a copy of Criminal Law Statutes compiled by the Faculty
of Law, and you will be given a clean copy of the same document in the exam. You will also be
given a clean copy of the Faculty’s list of cases in criminal law. This will be essentially the same
as the list below with only the names of the cases given, and none of the surrounding references
or other material.

The following list is based on the assumption that topic 1 (basic principles of criminal law) will
be taught as classes or seminars, rather than as tutorials with written work. As a result the reading
list for that topic is correspondingly slightly longer than it is for topics 2-8. However, as before,
this is entirely at the discretion of individual tutors who can organise and deliver the course as
they prefer and you should not worry if the structure of your particular course does not follow the
format laid out here, which is for guidance only. Equally, your tutor may give you details of
precisely which lectures to attend, but details of the lectures relating to each topic are given on
the lists below. Please see the Faculty Lecture list for the location of these lectures.

For further information on all this, please contact the course convenor:
matthew.dyson@law.ox.ac.uk

Vacation Reading
It may be that before you came to Oxford your tutor recommended that you read some of the
material covered in section 1.1 below. It will not be covered in the tutorial, and so if you have not
already covered it you can leave detailed reading of it until the Christmas vacation. Nevertheless,
during the course you will encounter some of the concepts listed in that section and so you might
like to use it for reference when you do.

1.1 Fundamental Principles

It is important that you should be able to define and use correctly the following concepts:
• The ECHR rights that have implications for criminal law
• The merits of codifying the criminal law
• The concept of ‘autonomy’
• The ‘welfare’ principle
• -The ‘harm’ principle
• -Proportionality-
• Non-retroactivity, maximum certainty and the rule of law
• -Burdens of proof and the presumption of innocence
• -The principle of fair labelling

Ashworth and Horder Chs 1-4

Allen Ch 1
Simester and Sullivan Chs 1 and 2 pp 57–64 and Ch 16
Smith and Hogan Chs 1-3
Clarkson and Keating Ch 1
Herring Ch 1
Smith and Hogan Cases and Materials (C&M) Ch 1

G Lamond, ‘What is a Crime?’ (2007) 27 OJLS 609

J Chalmers and F Leverick, ‘Fair Labelling’ (2008) 71 MLR 217
G de Búrca and S Gardner, ‘The Codification of Criminal Law’ (1990) 10 OJLS 5595
Topic 1 – Basic Principles of Criminal Law
In later topics we will look at particular crimes, but for the first topic it is important that you
understand the ‘shape’ of crimes in general. What makes a crime?

Allen Chs 2, 3 and 4

Ashworth and Horder Chs 5, 6
Simester and Sullivan Chs 4, 5, 6 and 18.2
Smith and Hogan Chs 4, 5, 6, 7 and 11 (only the part on mistake)
Clarkson and Keating pp Chs 2 and 3I
Herring Chs 2, 3, 4 and 12.14
Smith and Hogan C&M Chs 2-6

1.1 Actus Reus

Larsonneur (1933) 149 LT 142, (1934) 24 Cr. App. R. 74

Voluntariness

Attorney-General’s Reference (no. 2 of 1992) [1994] QB 91, [1993] 3 W.L.R. 982

Omissions
Airedale NHS Trust v Bland [1993] AC 789, [1993] 2 W.L.R. 316

Miller [1983] 2 AC 161, [1983] Crim LR 466

Stone and Dobinson [1977] QB 354, [1977] Crim LR 166

Causation

Roberts [1972] 56 Cr. App. R. 95, [1972] Crim LR 27

Jordan (1956) 40 Cr App R 152

Smith [1959] 2 QB 35, (1959) 43 Cr. App. R. 121

Malcherek [1981] 2 All ER 422, [1981] Crim. L.R. 401

Cheshire [1991] 3 All ER 670, [1991] Crim. L.R. 709

Blaue [1975] 3 All ER 446, [1975] Crim LR 648

Pagett (1983) 76 Cr App R 279, [1983] Crim. L.R. 393

Kennedy [2007] UKHL 38, (2008) Crim LR 222
R v Hughes [2013] UKSC 56, [2014] Crim LR 234
R v Taylor [2016] UKSC 5

1.2 Mens Rea

Simester and Chan, ‘Four Functions of Mens Rea’ (2011) CLJ 381

Intent
S 8 Criminal Justice Act 1967

Steane [1947] KB 997, (1948) 32 Cr. App. R. 61

Gillick v West Norfolk and Wisbech AHA [1986] AC 112, [1986] Crim. L.R. 113 (cf now
Sexual Offences Act 2003 s 73. How does this section deal with the problem instead? Cf also Re
A below)
Moloney [1985] AC 905, [1985] 1 All ER 1025
Woollin [1999] 1 AC 82, [1998] Crim. L.R. 890
Re A (conjoined twins: surgical separation) [2000] 4 All ER 961 pp. 1012, pp. 1027-1030 and
pp. 1062-1063 [2001] Crim. L.R. 400
Matthews and Alleyne [2003] EWCA Crim 192, [2003] 2 Cr. App. R. 30

G Williams, ‘Oblique Intent’ (1988) 46 CLJ 417

JC Smith, ‘A Note on Intention’ [1990] Crim LR 85
J Finnis, ‘Intention and Side effects’, in Frey & Morris (eds), Liability and Responsibility
(1991) (pp. 32-38, 41-52 and 60-61 provide the core argument). (also available in his
Collected Essays, Vol II, 2011)

A Norrie, ‘After Woollin’ [1999] Crim LR 532

Recklessness

Cunningham [1957] 2 QB 396, [1957] 2 All E.R. 412

Caldwell [1982] AC 341, [1981] Crim. L.R. 392

G and R [2003] UKHL 50, [2004] Crim LR 369

Parker [1977] 2 All ER 37, [1977] Crim. L.R. 102

Stephenson [1979] QB 695, [1979] Crim. L.R. 590

H Keating, ‘Reckless Children’ [2007] Crim LR 546

Mistake
Morgan [1976] AC 182 (note that this is no longer good law for sexual offences; see topic 3)
K [2002] 1 AC 462

1.3 The Problem of Correspondence

Must all offences have both an actus reus and a mens rea? Must they occur at the same time?

Strict Liability

Sweet v Parsley [1970] AC 132, [1969] 2 W.L.R. 470

K [2002] 1 AC 462, [2001] Crim. L.R. 993

R v G [2008] UKHL 37 at para 1-6, 24-31, [2008] Crim. L.R. 818

Coincidence of Actus Reus and Mens Rea

R v Latimer [1886] 17 Q.B.D 359

Fagan v MPG [1969] 1 QB 439, [1968] 3 W.L.R. 1120 (cf Miller above. What is the difference
between the two cases?)

Thabo Meli [1954] 1 WLR 228, [1954] 1 All E.R. 373

Church [1966] 1 QB 59, [1965] 2 W.L.R. 1220

Le Brun [1992] QB 61, [1991] 3 W.L.R. 653

A-G’s Reference (no. 3 of 1994) [1998] AC 245, [1997] Crim. L.R. 829

Questions to Consider:
1. ‘There are no underlying general principles of causation. Judges simply resort to
considerations of ‘policy’ to determine whether a particular defendant caused the specified harm’
Discuss.

2. ‘There is, many argue, no intrinsic moral difference between direct and oblique intention: the
mere fact that an agent foresaw harm as a side-effect of her action, rather than directly intending
it, cannot make her any less culpable; she still chose to bring about a harm which she could have
avoided. Nor need the difference between direct and oblique intention mark any difference in the
dangerousness either of the action or of its agent’
Discuss.

3. Is it desirable and possible to have a statutory definition of intention in the criminal law?

4. A result foreseen as very likely is a result intended. Discuss.

5. The conscious taking of an unjustified risk and the complete failure to appreciate the very
existence of such a risk are equally blameworthy states of mind. Criminal law should not
distinguish between them.
Do you agree?

6. Does English law take too restrictive a view of criminal liability based on omissions?
Topic 2 – Homicide

Allen Ch 9
Ashworth and Horder Ch 8 (other than 8.6 and 8.7)
Simester and Sullivan Chs 10 and Ch 19
Smith and Hogan Chs 14, 15, 16
Clarkson and Keating pp Ch 8
Herring Chs 5 and 12.10-11
Smith and Hogan C&M Chs 7-9

2.1 Murder

S 1 Homicide Act 1957

S 8 Criminal Justice Act 1967
Law Reform (Year and a Day Rule Act) 1996
See in particular
Cunningham [1982] AC 566, [1981] 3 W.L.R. 223
And from the reading in Topic 1:

Steane [1947] KB 997, (1948) 32 Cr. App. R. 61

Gillick v West Norfolk and Wisbech AHA [1986] AC 112, [1986] Crim. L.R. 113
Moloney [1985] AC 905, [1985] 1 All ER 1025
Woollin [1998] 3 WLR 382, [1998] Crim LR 890
Re A (conjoined twins: surgical separation) [2000] 4 All ER 961 pp. 1012, pp. 1027-1030 and
pp. 1062-1063 [2001] Crim. L.R. 400
Matthews and Alleyne [2003] EWCA Crim 192, [2003] 2 Cr. App. R. 30

2.2 Voluntary Manslaughter

Loss of Control
Coroners and Justice Act 2009, sections 54-56
R v Clinton [2012] EWCA Crim 2, [2012] Crim. L.R. 539

R v Asmelash [2013] 1 Cr App R 33, [2013] Crim. L.R. 599

A Norrie, ‘The Coroners and Justice Act 2009 - partial defences to murder (1) Loss of control’
[2010] Crim LR 275
J Herring, ‘The Serious Wrong of Domestic Abuse and the Loss of Control Defence’, Ch 5 of A
Reed and M Bohlander (eds) Loss of Control and Diminished Responsibility: Domestic,
Comparative and International Perspectives (London: Ashgate).

Diminished Responsibility
S2 Homicide Act 1957, as amended by Coroners and Justice Act 2009, sections 52

R v Dowds [2012] EWCA Crim 281, [2012] Crim LR 612.

R v Brennan [2014] EWCA Crim 2387

R v Golds [2016] UKSC 61

R v Blackman [2017] EWCA Crim 190

R Mackay, ‘The Coroners and Justice Act 2009 - partial defences to murder (2) The new
diminished responsibility plea’ [2010] Crim LR 290
Louise Kennefick, 'Introducing a new diminished responsibility defence for England and Wales'
(2011) 74 MLR 750-766
Note that it is also possible for Diminished Responsibility to arise in connection with other issues,
such as intoxication, on which see further topic 8.

Infanticide
(though NB that this is dealt with by a separate statutory provision and leads to a conviction for
infanticide, not manslaughter):
S 1 Infanticide Act 1938

Suicide Pact
S 4 Homicide Act 1957
cf s 2 Suicide Act 1961

2.3 Involuntary Manslaughter

Constructive, or ‘unlawful act’ manslaughter

Church [1966] 1 QB 59, [1965] 2 W.L.R. 1220

Lamb [1967] 2 QB 981, [1967] 3 W.L.R. 888

DPP v Newbury and Jones [1977] AC 500, [1977] Crim. L.R. 359

Dawson (1985) 81 Cr App R 150, [1985] Crim LR 383

Watson [1989] 1 W.L.R. 684, [1989] Crim LR 733

Lowe [1973] QB 702, [1973] Crim. L.R. 238

Kennedy [2007] UKHL 38, (2008) Crim LR 222

Gross Negligence Manslaughter

Adomako [1995] 1 AC 171, [1994] Crim. L.R. 757
Evans [2009] EWCA Crim 650, [2009] Crim. L.R. 661
A Ashworth, ‘Manslaughter by omission and the rule of law’ [2015] Crim LR 563
M Dyson, ‘The smallest fault in manslaughter’ [2017] Archbold Review, vol 6, 4-6

Questions to consider:
1. ‘The partial defence of loss of control privileges people who display anger. That is a wrong
thing for the law to do. It also discriminates against victims of abuse who kill not through anger
but through despair. That too is a wrong thing for the law to do.’ Discuss.

2. How satisfactory is the Law Commission’s 2005 proposal that there should be two
degrees of murder?

3. ‘The conscious taking of an unjustified risk and the complete failure to appreciate the very
existence of such a risk are equally blameworthy states of mind. Criminal law should not
distinguish between them.’
Do you agree?

4. ‘A ladder of offence seriousness is defensible so long as, by and large, the cases that fall within
a particular tier are, other things being equal, more serious than the cases that, by and large, fall
within the tier below’. (Law Com 304 para 2.47).
Do you agree? To what extent does the ladder proposed in the report fulfil this aim? Is it better
than or worse than the ladder proposed in the consultation paper?

5. ‘Where someone kills having intended to do serious harm, in all but the most exceptional
instances such a person will have made V’s death a foreseeable consequence of his or her
conduct. This provides sufficient connection or ‘correspondence’ in point of fault between what
D intended and he killing, whether or not there was actual awareness that death might be caused.’
(Law Com 304 para 2.80)
Do you agree?

6. ‘The primary importance of partial defences should be seen as lying in the impact that they
have on sentence rather than on verdict.’ (Law Com 304 para 2.147).
Do you agree?

7. Taj and Ulrike go rock-climbing. Viktor pushes some pieces of rock down on top of Taj and
Ulrike as they climb. Viktor realises the rocks will hurt, but does not think they will seriously
injure, as he assumes Taj and Ulrike are wearing protective helmets, as rock-climbers in this area
normally do. In fact, they are not wearing helmets: Taj because his religion requires him to wear a
turban, over which a helmet will not fit, and Ulrike because she thinks she looks more stylish
without a helmet. Taj and Ulrike both suffer serious head injuries, which helmets would have
prevented. Taj and Ulrike are taken to hospital. Until last month, they would have been taken by
air ambulance and would have reached hospital within thirty minutes. But the air ambulance
service has been cancelled, because the government financial support required to run it has been
withdrawn for economic reasons. The journey by road ambulance takes two hours. Reaching
hospital in thirty minutes would have allowed Ulrike's life to be saved, but as it is she dies in the
ambulance. Taj survives, but, suffering terrible head pain and mental problems as a result of his
injuries, and losing faith in his religion, he kills himself.
What crimes, if any, have been committed?

8. Archie and Bob are both alcoholics. When drinking one evening they begin to argue about
football, and Bob makes several insulting remarks about the Scottish football team, of which
Archie is a passionate supporter. Archie becomes angry, knocks Bob to the ground and then kicks
his head over 20 times, killing Bob. The defence lawyers have obtained a psychiatric report to the
effect that Archie has been suffering for some time from a depressive illness which would impair
his self-control. Archie, who has been charged with murder, instructs his lawyers to run the
defence of loss of control.
Assess the likelihood that the defence of loss of control would be successful.
Topic 3 – Non-Fatal Offences against the Person
Allen 10
Ashworth and Horder Chs 9.1-9.3
Simester and Sullivan Chs 11 and 21.1
Smith and Hogan Ch 17.1-17.5, 17.7, 17.10
Clarkson and Keating pp Chs 7i, 4ii
Herring Ch 6 and 12.4
Smith and Hogan C&M Ch 10-11

3.1 Assault
Logdon v DPP [1976] Crim LR 121
Venna [1976] QB 421, [1975] Crim. L.R. 701

3.2 Battery
Ireland [1998] AC 147, [1997] Crim LR 810
Martin (1881) 8 QBD 54

Collins v Wilcox [1984] 1 W.L.R. 1172, [1984] Crim LR 481

DPP v Santana-Burmudez [2003] EWHC 2908 (Admin), [2004] Crim LR 471

3.3 Assault occasioning actual bodily harm

S 47 Offences Against the Person Act 1861
Savage, Parmenter [1992] 1 AC 699
Ireland [1998] AC 147, [1997] Crim LR 810

T v DPP [2003] EWHC 266 (Admin), [2003] Crim LR 622

DPP v Smith [2006] EWHC 94 (Admin), [2006] Crim LR 528

3.4 Wounding and GBH

Ss 18 and 20 Offences Against the Person Act 1861
Bollom [2003] EWCA Crim 2846 at [50]-[53], [2004] 2 Cr App R 6
Ireland [1998] AC 147, [1997] Crim LR 810
Dica [2004] EWCA Crim 1103, [2004] Q.B. 1257

3.5 Poisoning
SS 23 and 24 Offences Against the Person Act 1861 and see Kennedy in topic 1. 13
3.6 Threats to kill
S 16 Offences Against the Person Act 1861

3.7 Consent

AG’s ref (No. 6 of 1980) [1981] QB 715, [1981] Crim. L.R. 553

Brown [1994] 1 AC 212, [1993] 2 W.L.R. 556(NB you will need to be aware of the judgments
of both the majority and the minority in this case).
Wilson [1997] Q.B. 47, [1996] 3 W.L.R. 125
Dica [2004] EWCA Crim 1103, [2004] Q.B. 1257
Konzani [2005] EWCA Crim 706, [2005] 2 Cr. App. R. 14
Barnes [2004] EWCA Crim 3246, [2005] Crim LR 381
Simon Slingsby [1995] Crim LR 570 (can this really be reconciled with Brown?)

Gillick v West Norfolk and Wisbech AHA [1986] AC 112, [1986] Crim. L.R. 113
H v CPS [2010] EWHC 1374 (Admin), [2012] Q.B. 257

Tabassum [2000] 2 Cr App R 328, [2000] Crim LR 686, but contrast Richardson [1999] Q.B.
444, [1999] Crim. L.R. 62
J Horder, ‘Re-thinking Non-Fatal Offences against the Person’ (1994) 14 OJLS 335
M Weait, 'Criminal Law and the Sexual Transmission of HIV: R v Dica' (2005) 68 MLR 121
D Ormerod, ‘Criminalising HIV Transmission – Still No Effective Solutions’ (2001) 30 Comm L
World Rev 135

3.8 Reform
Summary of the Law Commission’s Scoping Report on Offences Against the Person:

http://www.lawcom.gov.uk/wp-
content/uploads/2015/11/lc361_offences_against_the_person_summary_new.pdf

Questions to Consider:
1. In what circumstances is a person who infects another with a disease guilty of a criminal
offence? What should the legal position be?

2. ‘A person can validly consent to being injured, so long as there is no detriment to others.’
Discuss whether this does, and should, describe the law’s position regarding the availability of
consent as a defence to the offences in ss 18, 20 and 47 of the Offences Against the Person Act
1861.

3. In instances where the Criminal Law employs the term ‘consent’, what meaning does it give to
that term? Would the proposed substitution of the term ‘free agreement’ constitute an
improvement?

4. Ralph and Sophie are actors in an action film. There is a scene in which they throw knives at
each other. Sophie and Ralph agree that they should film the scene with real knives in order to
make it as realistic as possible, despite the obvious dangers. Sophie in fact hates Ralph and
throws a knife not caring whether or not it harms him. The knife narrowly misses Ralph’s head.
Ralph throws a knife at Sophie aware there is a strong chance that it will hit her in the leg but
assuming that under their agreement Sophie is prepared to take that risk. The knife cuts Sophie in
the stomach. She is taken to the emergency room of a hospital. Dr Tao, who has drunk several
pints of beer while on her shift, examines Sophie and seriously over-estimates the severity of the
wound. She incorrectly tells Sophie that she is likely to be paralyzed for the rest of her life.
Sophie as a result decides she would rather die and refuses all forms of treatment. The wound
therefore becomes infected and Sophie dies.
What crimes, if any, have been committed?
5. Intent on stealing a deadly chemical from a high security laboratory, Albers takes with him in a
bag of bolt-croppers, wire-cutters, and a gun. On approaching the perimeter fence Albers sets off
an alarm and is pursued by security guards. Driving off at high speed, Albers loses control and
his car collides with another, killing its driver on impact and trapping a passenger. Albers is
thrown clear and survives. His bag of tools is also thrown clear and it rolls down a slope towards
a cycle track. Emergency services carefully release the passenger who is taken to hospital with
severe stomach injuries. In successfully treating these, the surgeon notices that the passenger also
has a small hernia, enduring probably from birth but likely to worsen over time and cause health
problems if not treated. The surgeon attempts to repair it and during that operation the passenger
suddenly dies. There is a conflict of expert testimony. One expert says that the cause of death
must have been the inattentiveness of the anaesthetist. Another says that it was unforeseeable and
inevitable. Meanwhile a passing cyclist notices the bag of tools and picks it up intending to hand
it in at a local police station and cycles off with the bag. After a few minutes of being shaken
about inside the bag the gun goes off, fatally shooting the cyclist.
What crimes, if any, has Albers committed?

6. Balka knows that he is HIV positive and that unprotected sexual intercourse with another
involves a risk that the other may also become HIV positive and perhaps thereafter contract
AIDS. Balka has sexual intercourse with a series of partners all of whom consented both to the
act and to the absence of protection. Caro did not become HIV positive; Davilo became HIV
positive but did not develop AIDS; Estes became HIV positive and developed AIDS; Fabro
became HIV positive, contracted AIDS, and died; and Guttoso, who agreed to unprotected sexual
intercourse only because Balka had expressly misrepresented to her that he had undergone an
effective vasectomy verified by subsequent medical tests, became pregnant.
What crimes, if any, has Balka committed? Would it make any difference in Guttoso's
case if she suffered severe depression as a result of the pregnancy? Would it make any difference
in the four cases (a) if Balka had expressly misrepresented himself as free of all sexually
transmissible diseases; or (b) if these four partners had been aware of his condition?
Topic 4 – Sexual Offences
In 2003 a new Sexual Offences Act was enacted and came into force on the 1 st May 2004.
However, because the Act is still fairly new and there have not yet been many cases decided on it,
it will sometimes be necessary still to refer back to case law from before 2003. This topic will be
lectured by Mr Laird in Michaelmas Term.

Allen Ch 11
Ashworth and Horder Chs 9.4-9.8
Baker Ch 10
Smith and Hogan Ch 18, especially 18.1-18.3 and 18.9-11
Clarkson and Keating pp Ch 7ii
Herring Ch 7
Smith and Hogan C&M Ch 12

4.1 The offences

The three specific offences you need to know are contained in ss 1, 2 and 3 of the Sexual
Offences Act 2003.
V Tadros, ‘Rape without consent’ (2006) 26 OJLS 515

4.2 The definition of ‘sexual’

s 78 Sexual Offences Act 2003
H [2005] EWCA Crim 732 and Ormerod commentary [2005] Crim LR 735
F Bennion, ‘The Meaning of ‘sexual’ in the Sexual Offences Bill’ (2003) 167 Justice of the Peace
764.

4.3 Consent
NB that issues relating to consent can come up in two different ways and it is important to
identify which is relevant in any given case (although both may be):
1) As a matter of actus reus there may be an argument about whether the victim was in fact
consenting
2) As a matter of mens rea the defendant may argue that (s)he believed the victim was
consenting.

Mens Rea
For the old law that the 2003 SOA was designed to replace, consider Morgan [1976] AC 182 (cf
‘mistake’ in topic 1). Contrast, eg s 1(1)(c) and s 1(2) of the 2003 Act.
See also Ss 75 and 76 of the Sexual Offences Act 2003 (see further below).

R v B [2013] EWCA Crim 3, [2014] Crim. L.R. 312

Actus Reus
Ss 74 and 75 of the Sexual Offences Act 2003
Under the old law, see

Olugboja [1982] QB 320, [1981] 3 W.L.R. 585

Kirk [2008] EWCA Crim 434 paras [85] to [92]
Under the new Act see

Bree [2007] EWCA Crim 804, [2007] Crim LR 900

R v Ciccarelli [2011] EWCA Crim 2665, [2012] 1 Cr. App. R. 15

R v Ali [2015] EWCA Crim 1279

THE PROBLEM OF MISTAKEN CONSENT:

(NB that this issue also applies to other offences where consent is relevant)
S 74, 76 Sexual Offences Act 2003
Under old law:

Flattery (1877) 2 QBD 410

Williams [1923] 1 KB 340, (1924) 17 Cr. App. R. 56

Linekar [1995] 3 All ER 69, [1995] Crim. L.R. 320

Under new law:

Jheeta [2007] EWCA Crim 1699, [2008] Crim. L.R. 144

R v Bingham [2013] EWCA Crim 823, [2013] 2 Cr. App. R. 29

J Herring, ‘Mistaken Sex’ [2005] Crim LR 511

H Gross, ‘Rape, Moralism and Human Rights’ [2007] Crim LR 220
J Herring, ‘Human Rights and Rape: a Reply to Hyman Gross’ [2007] Crim LR 228
R Williams, ‘Deception, Mistake and Vitiation of the Victim’s Consent’ (2008) 124 LQR 132
Although you are only required to know the law concerning ss 1-3 and 74-78 in detail,
nevertheless you will be expected to ‘know of the existence’ of other offences contained in the
Act. Other sections you may wish to consider in this regard include:
• S 5 rape of child under 13 (cf R v G from topic 1) and following offences.
• S 61, ‘administering a substance with intent’ (cf non-fatal non-sexual offences against the
person and s 75(2)(f) SOA 2003)
 • Ss 62 and 63, committing an offence with intent to commit a sexual offence and trespass
with intent to commit a sexual offence, respectively (cf topic 7 on inchoate offences and
the old law of burglary, topic 5)
• S 73, cf Gillick, topics 1 and 8 and accessorial liability, topic 6.

Questions to consider:
1. What did the 2003 Act add to the actus reus of rape?
2. What is the difference between s 2 of the 2003 Act and rape under s 1? What is the difference
between s 4(4) of the 2003 Act and rape under s 1?
3. Do you think the definition of ‘sexual’ in s 78 is satisfactory? In particular, consider the
following issues:
- Lord Goff criticised the old law on ‘indecent assault’ on the basis that it confused mens
rea with actus reus. Does the 2003 Act avoid this?
- Lord Atkin in Court gives the example of a doctor who performs an unnecessary
‘intimate’ examination without the patient’s consent, not for sexual motives but ‘for
private research’ reasons. Under Court such a defendant would have committed an
inherently indecent assault. What is the position of this defendant under the 2003 Act? Do
you think this is the right result?
- Consider the case of unusual fetishes such as, eg foot fetishes. Do you think these acts
should be classed as sexual assaults? Were they so classified under Court? Are they so
classified under the 2003 Act?
4. What mistakes on the part of the victim vitiated consent under the old law? Under the new
law? Do you think the line is drawn in the right place?
5. Does the new law represent an improvement on Morgan? Does this mean that Morgan no
longer has a role to play in the criminal law?

6. ‘When considering the crime of rape, bear in mind that the accused did not have to have sex
with the victim at all. So, the victim should be seen as not consenting whenever, for any reason,
she does not freely welcome the accused’s acts. Likewise, the accused should be guilty whenever
there is such a lack of consent, with no requirement that he be aware of it.’
Discuss.

7. What crimes, if any, have been committed in cases (i) AND (ii)?
(i) Alfred has had a sheltered upbringing and only very limited experience in sexual matters. He
also has a slight learning disability. He meets Bob and invites him to his flat for coffee. Alfred
takes this to mean Bob would like to have sexual intercourse with him. Immediately they enter
the flat Alfred starts to undress Bob, who is so frightened he does not voice his opposition to any
sexual contact. Alfred has sexual intercourse with Bob. Bob agrees.
(ii) Christine tells Daniel that she loves him and would like to have sexual intercourse with him.
Daniel, who is very keen to have sexual intercourse with Christine, enthusiastically agrees. In fact
Christine does not love Daniel and only wants to become pregnant.

8. Fred and Geri have been friends for some months. One particular evening they go out to a pub
and consume several alcoholic drinks. Fred then accompanies Geri home. Fred realises that Geri
is unsteady on her feet and helps her into her apartment. Geri goes to her bedroom and begins to
undress. As Fred enters the room, Geri kisses him on the cheek, takes off her remaining clothes
and collapses on her bed, with her eyes closed. Fred then penetrates her, but Geri opens her eyes
and tells him in no uncertain terms to get off. She begins to struggle but about a minute passes
before Fred withdraws and leaves the flat.
What crimes, if any, have been committed?
Topic 5 – Property Offences

Allen Chs 12, 13, 14, 15

Simester and Sullivan Chs 13, 14, 15
Smith and Hogan Chs 19, 20, 21.2, 22, 23.1-5, 25.1, 26, 27.1, 29.1-29.3, 29.5
Clarkson and Keating Ch 9 (though NB this does not seem to contain references to criminal
damage, so you may need to consult another book for that).
Herring Chs 8, 9, 10, 11.1, 11.2, 11.3, 11.6, 11.8
Smith and Hogan C&M Chs 13-18

5.1 Theft
S 1 Theft Act 1968

Appropriation
S 3 Theft Act 1968

Lawrence v. Metropolitan Police Commissioner [1972] AC 626, [1971] 3 W.L.R. 225

Morris [1984] AC 320, [1983] Crim. L.R. 813

Gomez [1993] AC 442, [1993] Crim. L.R. 304

Hinks [2000] 3 WLR 1590, [2001] Crim. L.R. 162

Briggs [2003] EWCA Crim 3662, [2004] Crim LR 495
Pitham and Hehl (1977) 65 Cr App R 45
S Shute, ‘Appropriation and the Law of Theft’ [2002] Crim LR 445
A Bogg and J Stanton-Ife, ‘Protecting the Vulnerable: Legality, Harm and Theft’ (2003) 23 Legal
Studies 402
S Gardner, ‘Property and Theft’ [1998] Crim LR 35

Property
S 4 Theft Act 1968
Oxford v Moss (1979) 68 Cr App R 183
R v Smith, Plummer and Haines [2011] EWCA Crim 66, [2011] Crim LR 719

Belonging to Another
S 5 Theft Act 1968
Turner [1971] 1 W.L.R. 901, [1971] 2 All E.R. 441

Dishonesty
S 2 Theft Act 1968
Ghosh [1982] Q.B. 1053, [1982] Crim. L.R. 608
E Griew, ‘Dishonesty: the Objections to Feely and Ghosh’ [1985] Crim LR 341
A Halpin, ‘The Test of Dishonesty’ [1996] Crim LR 283

Intention Permanently to Deprive

S 6 Theft Act 1968
Lloyd [1985] QB 829, [1985] Crim. L.R. 518
Mitchell [2008] EWCA Crim 2552, [2009] Crim. L.R. 287

5.2 Robbery
S 8 Theft Act 1968

Hale (1979) 68 Cr App R 415, [1979] Crim. L.R. 596

Dawson (1977) 64 Cr App R 170

5.3 Burglary
S 9 Theft Act 1968

Collins [1973] QB 100, [1972] Crim. L.R. 498

Jones and Smith [1976] 1 W.L.R. 672, [1976] 3 All E.R. 54

Ryan (1996) 160 JP 610, [1996] Crim. L.R. 320

Walkington [1979] 1 W.L.R. 1169, [1979] Crim. L.R. 526

5.4 Other related offences

The Faculty’s teaching convention specifies that you are also required to ‘know the existence of
the offences created by’ the following sections:
S 12 Theft Act 1968 Taking Motor Vehicle or other Conveyance without authority (TWOC).
(Why was it necessary to create this as a separate offence? Which of the elements of theft is often
missing in such cases?)
S 21 Theft Act 1968 – Blackmail
S 22 Theft Act 1968 – Handling stolen goods. (But for interest, note that in practice prosecutors
now have another option: R (Wilkinson) v DPP [2006] EWHC 3012. Why, as a prosecutor, would
you choose to do this? Do you think this is appropriate?)
S 25 Theft Act 1968 – Going Equipped for Stealing, etc (cf your work on inchoate offences in
topic 7)
S. 3 Theft Act 1978 – Making off without payment (but NB Vincent [2001] EWCA Crim 295,
[2001] Crim. L.R. 488)

5.5 Fraud
In 2006 the new Fraud Act was enacted, replacing many of the previous offences contained in the
1968 and 1978 theft acts, such as obtaining property and services by deception. Given that the
statute is so new, there are so far no cases on it that you need to know. However, you might find
the cases listed below of help, even though they were decided on the basis of the pre-2006 law.
Ss 1-4 Fraud Act 2006

R v Valujevs [2014] EWCA Crim 2888

D Ormerod, ‘The Fraud Act 2006 – Criminalising Lying?’ [2007] Crim LR 193.
S Gardner, ‘Letter to the Editor, Crim LR and D Ormerod’s reply’ [2007] Crim LR 661
J Collins, [2011] Crim LR 513, ‘Fraud by abuse of position: theorising section 4 of the Fraud Act
2006’
Under the old law:
MPC v Charles [1977] AC 177, [1977] Crim. L.R. 615

5.6 Criminal Damage

Ss 1-3 Criminal Damage Act 1971

Smith [1974] QB 354, [1974] Crim. L.R. 101

Denton [1982] 1 All ER 65, [1982] Crim. L.R. 107

And of course G and R from topic 1 [2003] UKHL 50, [2004] Crim. L.R. 369
Questions to consider:
1. ‘The law of theft protects individuals from dishonestly being taken advantage of.’
‘The law of theft protects individuals’ property rights’.
Consider which of these statements is more accurate.

2. Discuss in what circumstances, if any, it would be accurate to state that while offences against
the person are structured by considering the seriousness of the harm caused to the victim,
property offences are structured according to the method of taking or dealing with the property.

3. Helen, a wealthy but naïve young woman, is befriended by Paul, a poor but charming young
man. Paul untruthfully tells Helen that he loves her and persuades her to give him £500 in cash.
Helen subsequently discovers that Paul has been unfaithful to her and she goes round to his flat,
intending to recover the money she had given him. Using a key Paul had lent her Helen enters his
flat. She uses Paul’s mobile telephone to make an expensive international phone call. She also
takes from the flat five £10 notes and Paul’s annual bus pass. Helen travels home by bus, without
buying a ticket. She intends to show Paul’s bus pass if required to do so, but is never asked for it.
Helen writes a letter to Paul telling him that she will return his bus pass to him if he gives her
back the rest of her money. Paul sends Helen a cheque for £450, but Helen does not return the
bus pass and rips up the cheque.
Discuss any issues affecting criminal liability.

4. Has D committed an offence in the following scenarios?

- D has a market stall where he advertises and sells bags ‘just like Victoria Beckham has’. In fact
the bags are cheap copies.
- D sends an email to millions of people at random offering them a ‘guaranteed prize’ in a
competition if they send him a £5 entry fee. In fact there are no prizes and there is no
competition, but in any case no-one reads D’s email because they or their computers all recognise
it as ‘spam’ and delete it. Would it matter if the police managed to arrest D before he had clicked
‘send’?
- D is a waiter who, unbeknown to his employers, offers his own wine for sale instead of using
the wine list belonging to the restaurant.
- D takes plastic 50p pieces from his board game and feeds them to a car parking meter.
- D wants to work at Oxford University, but in fact has no qualifications, so he makes up his CV
and submits it. He is given a job as a fellow and tutor at St Baranabas College, where he works
very hard at his teaching and research and receives a salary each month.
Topic 6 – Complicity
Also known as ‘accessory’ or ‘accomplice’ or ‘secondary’ liability.

Please note, some major changes to this subject took place as a result of the Supreme Court
decision in Jogee. For this reason, and for this topic only, we are only recommending references
to textbooks which postdate the Jogee decision.

Allen ch 7
Ashworth and Horder Ch 11
Simester and Sullivan Ch 7
Herring Ch 15
Smith and Hogan C&M 19

6.1 Aiding, Abetting, Counselling and Procuring

S 8 Accessories and Abettors Act 1861

Aiding
NB your reading on acts as opposed to omissions, see topic 1

NCB v Gamble [1959] 1 QB 11, [1958] 3 W.L.R. 434

JF Alford [1997] 2 Cr App R 326, [1997] Crim. L.R. 745

Abetting
Clarkson [1971] 1 W.L.R. 1402, [1971] 3 All E.R. 344

Counselling

Calhaem [1985] QB 808, [1985] Crim. L.R. 303

Procuring

Blakely and Sutton [1991] RTR 405, [1991] Crim. L.R. 763

A-G’s Reference (No. 1 of 1975) [1975] QB 773, [1975] 2 All ER 684

Mens Rea

Bainbridge [1960] 1 QB 129, [1959] 3 W.L.R. 656,

DPP NI v Maxwell [1978] 1 W.L.R. 1350, [1978] 3 All ER 1140
Bryce [2004] EWCA Crim 1231. [2004] 2 Cr. App. R. 35
See also Blakely, above.

6.2 ‘Joint Enterprise’

For a while it was suggested in the light of the Privy Council decision in Chan Wing-Siu that
there was an additional doctrine of ‘Joint Enterprise’ or ‘Parasitic Accessory Liability’. This idea
was laid to rest by the Supreme Court decision in Jogee, which reaffirmed the standard principles
of secondary liability outlined above.

R v Jogee [2016] UKSC 8, [1]-[17], [36]-[38], [46] and [61]-[100]

R v Anwar [2016] EWCA Crim 551
R. v Johnson (Lewis) [2016] EWCA Crim 1613
Dyson and Buxton, Letter to the Editor [2016] Crim LR 638

David Ormerod and Karl Laird, ‘Jogee: not the end of a legal saga but the start of one?’ [2016] Crim
LR 539.

Andrew Simester, ‘Accessory liability and common unlawful purposes (Case Comment)’ (2017) 133
(1) LQR 73-90

What happens when the principal’s mens rea goes beyond what the secondary anticipated?
Gilmour [2000] 2 Cr App R 407

6.3 Secondary Liability and the derivative principle

Is secondary liability always derivative?
Bourne (1952) 36 Cr App R 125 (see also diminished responsibility, s 2 Homicide Act 1957)
Howe [1987] AC 417, [1987] Crim. L.R. 480
Millward (1994) 158 J.P. 1091, [1994] Crim. L.R. 527
Thornton v Mitchell [1940] 1 All ER 339

6.4 Limits to secondary liability

Rook [1993] 2 All ER 955, [1993] Crim LR 698

Becerra and Cooper (1976) 62 Cr App R 212
O’Flaherty [2004] EWCA Crim 526, [2004] Crim LR 751
Tyrell [1894] 1 QB 710 (where else should this defence apply?)
R v Gnango [2011] UKSC 59, [2012] 1 A.C. 827 In the light of Jogee (above) it is no longer
necessary to be concerned with discussion of the basis for liability in this case, but you do need to
know what is covered in paragraphs [16]-[19], [45]-[55] and [65].

6.5 Assisting Suicide

S 2(1) Suicide Act 1961

Questions to consider:
1. What crimes, if any, have been committed in cases (i) AND (ii)?
(i) Nicole and Omar agree to ask Piet to give them some money. They also agree that
if Piet at first refuses, Nicole will threaten him with violence, but will not use any actual violence.
Nicole alone knows, however, that Piet has a weak heart, and that frightening him may induce a
heart attack: an outcome for which she secretly wishes. Nicole and Omar accordingly ask Piet for
money. When he refuses to give them any, Nicole threatens him. As a result, Piet does suffer a
heart attack, and dies.
(ii) Qiwei is a professional assassin. Rula approaches him, asking him to kill Sean, a
politician, by shooting Sean as Sean rides in a ceremonial motorcade. Qiwei agrees. Rula leaves
all the remaining planning and execution of the shooting to Qiwei. In fact, Rula is an under-cover
police officer trying to entrap Qiwei. She knows that Sean will come to no harm as his car will
have bullet-proof windows.

2. ‘D gives P chocolates to give to V. V eats them and dies because they are poisoned. D knew
the chocolates were poisoned and would kill anyone who ate them….[This] illustrates why it
would be wrong to abolish secondary liability. It cannot be right that D is guilty of murder if P is
unaware that the chocolates are poisoned but only of assisting murder if P is aware that the
chocolates are poisoned. D’s conduct and state of mind are identical in each case.’
Discuss.

3. ‘It is not the present law, and it is logically impossible that it should become the law, that the
accessory must cause the commission of the principal crime’
Do you agree?

4. ‘It is apparent that the English law of complicity is replete with uncertainties and conflicts. It
betrays the worst features of the common law… as a succession of opportunistic decisions by the
courts, often extending the law, and resulting in a body of jurisprudence that has little coherence’
Pg 433
Do you agree with this assessment? In what ways, if any, should the English law of complicity be
reformed?
Topic 7 – Inchoate Liability

Allen Ch 8, other than 8.5.

Ashworth and Horder Ch 12 (other than 12.6)
Simester and Sullivan Chs 9.2, 9.3, 9.4, 9.5
Smith and Hogan Ch 13
Clarkson and Keating Chs 5i, 5ii, 5iii, 5iv, 5v
Herring Ch 14
Smith and Hogan C&M Chs 20-22

7.1 The Serious Crime Act 2007; Inchoate Liability for Assisting and Encouraging Crime
Serious Crime Act 2007 Part 2 ss 44, 45, 46, 47, 49, 50, 51, 56, 59, 64, 65, 66
D Ormerod and R Fortson, ‘The Serious Crime Act 2007: The Part II Offences’ [2009] Crim LR
389

Sadique [2013] EWCA Crim 1150, [2014] Crim. L.R. 61

7.2 Conspiracy
NB that there are both common law and statutory conspiracies, but you will not be required to
know about the common law conspiracies in detail.
Ss 1–5 Criminal Law Act 1977
Anderson [1986] AC 27, [1985] Crim. L.R. 651
Siracusa (1990) 90 Cr App R 340, [1989] Crim LR 712
Yip Chiu-Cheung [1995] 1 AC 111, [1994] Crim. L.R. 824
Saik [2006] UKHL 18, [2006] Crim. L.R. 998

7.3 Attempt
S 1 Criminal Attempts Act 1981
Actus Reus

Gullefer [1990] 1 WLR 1063, [1987] Crim. L.R. 195

Geddes (1996) 160 J.P. 697, [1996] Crim LR 894

Jones [1990] 1 W.L.R. 1057, [1990] Crim. L.R. 800

Campbell (1991) 93 Cr App R 350, [1991] Crim. L.R. 268
Tosti [1997] Crim LR 746

Mens Rea

Khan [1990] 1 WLR 813, [1990] Crim LR 519

AG’s Reference No 3 of 1992 [1994] 1 WLR 409, [1994] Crim LR 348

Pace and Rogers [2014] EWCA Crim 186, [2014] 1 W.L.R. 2867
J Rogers, ‘The Codification of attempts and the case for ‘preparation’ [2008] Crim LR 937
M Dyson 2014 Crim LR 445, ‘Scrapping Khan?’
P Mirfield, ‘Intention and Criminal Attempts’ [2015] Crim LR 142

7.4 The issue of impossibility

S 1(2) Criminal Attempts Act 1981
S 1(1)(b) Criminal Law Act 1977
S 49(1) Serious Crime Act 2007

Anderton v Ryan [1985] AC 560, [1985] Crim. L.R. 503

Shivpuri [1987] AC 1, [1986] Crim. L.R. 536

7.5 Proposals for Reform

Law Commission Report 318, Conspiracy and Attempts

Questions to consider:
1. A and B run an antiques dealership. A tells B of his plan to take delivery of goods from C and
asks for B help in doing so. B knows that C deals in both legitimate and stolen property and so
says to A ‘I think I’d make very sure the goods are legit if I were you. Don’t take anything from
him that looks dodgy, but if they’re ok, we should agree to sell them on for him’. B also declines
to take any physical part in the process himself. A, however, has no such scruples and in fact
knows that the goods in question will indeed be ‘hot’.
Have any crimes been committed?

2. A encourages his 9-year-old neighbour, B, to break into C’s house and steal something. Has A
committed an offence?

3. A emails his friend B, because A wants to have sex with B’s 12-year-old sister, C. However, in
fact the person who answers the emails is C. C has always fancied A and so, pretending to be B,
sends back emails to A arranging for this to happen.
Has A committed an offence?

4. A persuades B to get C to get D to agree with E that D and E should commit an offence. Is this
an offence on the part of A? Should it be?

5. Do you agree with the decision of the majority or the minority of the House of Lords in Saik?

6. Would the following cases be conspiracies? Why? (Hint: you might find it helpful to think
back to the work you did in topic 1 on the different kinds of actus reus element):
- A and B agree that they will kill C if C wins the election
- A and B agree that they will drive from London to Edinburgh in X hours. This can only be
done if the traffic is light. If the traffic turns out to be heavy they will have to speed.
- A and B agree that if they have exhausted all other options and the terminally ill C is
determined to die, they will help him to do so
- A and B agree that they will burgle C’s house and if C wakes up they will kill him.
- A and B agree that they will have sex with V whether or not she consents.
What if they had agreed that they would only have sex with V if she did consent? If the Law
Commission’s proposed reforms were implemented, what would the answer be?
7. ‘D’s state of mind, and therefore his or her culpability, is unaffected by the unknown
possibility of the principal offence being committed.’ (Law Commission No 300, ‘Inchoate
Liability for Assisting and Encouraging Crime’ para 6.61).
Discuss.

8. ‘The inchoate offences of inchoate complicity, conspiracy and attempt punish conduct that is a
step removed from the commission of the principal offence… The underlying problem is in
identifying the point at which conduct is so far removed from the commission of a principal
offence that it ought not to be criminalised’ (Law Commission No 300, ‘Inchoate Liability for
Assisting and Encouraging Crime’ para 3.34)
Discuss
Topic 8 – Incapacity and General Defences

8.1 Incapacity
Allen Ch 5
Ashworth and Horder Chs 5.1-2, 6.1, 6.2 and 7.1-2
Simester and Sullivan Chs 17, 18.3, 19.1, 19.4
Smith and Hogan Chs 11 and 12 (except 12.4, 12.5 and 12.7)
Clarkson and Keating Chs 4.I, 4.VII-4.X
Herring Ch 12.8-9, 12.12-13
Smith and Hogan C&M Chs 23.2, 24.5-24.6, 25
K Campbell, ‘Offences and Defences’ in I. Dennis (ed), Criminal Law and Justice (Sweet &
Maxwell, 1987)

8.1.1 Infancy
S 50 Children and Young Persons Act 1933
S 34 Crime and Disorder Act 1998
Re JTB [2009] UKHL 20, [2009] Crim. L.R. 581

8.1.2 Insanity (and insane automatism)

Criminal Procedure (Insanity) Act 1964

Defect of Reason

Clarke [1972] 1 All ER 219, (1972) 56 Cr. App. R. 225

Disease of the Mind

M’Naghten (1843) 10 Cl & Fin 200

Hill v. Baxter [1958] 1 QB 277, [1958] 2 W.L.R. 76

Sullivan [1984] AC 156, [1983] Crim. L.R. 740

Quick [1973] QB 910, [1973] Crim. L.R. 434

Hennessy [1989] 2 All ER 9, [1989] Crim. L.R. 356

Burgess [1991] 2 Q.B. 92, [1991] Crim. L.R. 548

Not knowing the nature of the act or that it is wrong:

R v Johnson [2007] EWCA Crim 1978, [2008] Crim LR 132
R Mackay, ‘Righting the Wrong? – some observations on the second limb of the M’Naghten
Rules’ [2009] Crim LR 56

8.1.3 Intoxication
Is intoxication ever to be considered as a defence? If it operates at all, what is its role?
Majewski [1977] AC 443, [1976] Crim. L.R. 374

Bailey [1983] 1 W.L.R. 760, [1983] Crim. L.R. 533

Hardie [1985] 1 W.L.R. 64, [1984] 3 All ER 848

Allen [1988] Crim LR 698

Kingston [1995] 2 AC 355, [1994] Crim. L.R. 846
Lipman [1970] 1 QB 152
Heard [2007] EWCA Crim. 125 [2007] Crim LR 654

Richardson and Irwin [1999] 1 Cr App R 392, [1999] Crim. L.R. 494

Law Commission Report No 314, ‘Intoxication and Criminal Liability’

http://www.lawcom.gov.uk/docs/lc314.pdf Parts 1, 3, 4 and Appendix A. You may also find the
account of the current law given in Part 2 useful as background reading.
J Child, ‘Drink, Drugs and Law Reform: a review of Law Commission Report No 314’ [2009]
Crim LR 488
Editorial on Law Commission Report no 314 [2009] Crim LR 133
A Simester, ‘Intoxication is Never a Defence’ [2009] Crim LR 3

Intoxicated Mistake:

Jaggard v Dickinson [1981] QB 527, [1980] Crim. L.R. 717

See also Richardson and Irwin [1999] 1 Cr App R 392, [1999] Crim. L.R. 494
J Horder, ‘Pleading involuntary lack of capacity’ (1993) 52 CLJ 298

Questions to consider:
1. D has been drinking with his friends all afternoon in the pub. To make them laugh, he makes it
look as if he’s going to touch the bottom of the barmaid, V, but he intends to stop short of
actually doing so. Unfortunately, because he is drunk, he misjudges the distance and ends up
touching V.
- Has D committed a crime?
- D intoxicatedly fondles what he believes to be a statue, but is actually V. Has he committed a
crime?

2. ‘The issue of intoxication raises an impossible dilemma. On the one hand people are much
more likely to commit crime while drunk, but on the other hand they can be regarded as much
less culpable when they do so.’
Do you agree? What should the rules on intoxication and criminal law do?

3. ‘the law is hampered by the partial and ill-defined character of its understanding of how people
identify harmful conduct for which they were (not) responsible, and by the related fact that it can
deal with involuntary lack of capacity only through the blunt instrument of acquittal on the
grounds of insane or non-insane automatism’
Discuss.

4. Ernie goes to the pub and orders a small glass of wine. In fact, he receives a large glass of wine
because the barman makes a mistake but Ernie doesn’t notice. He finishes his wine, The wine
interacts badly with some tranquilisers that Ernie had taken earlier in order to calm his nerves.
The tranquilisers were prescribed for Ernie’s wife, but Ernie was careful in following the
guidance on the prescription. At this point, Ernie begins to hallucinate and hear voices. He sets
fire to a towel and pushes it through a letterbox (he thinks that it is his own house when in fact it
is not). There is no one in the house and it causes some fire damage to the wooden door. A couple
of hours later, and still hallucinating, he picks up a train passenger’s umbrella from the waiting
room at the local railway station. Ernie mistakenly thinks it is his mother’s umbrella and that she
might not mind him borrowing it. When he has finished using it, he throws it into a bin.

What offences, if any, have been committed?

8.2 General Defences

Allen Ch 6
Ashworth and Horder Chs 7.3, 5.6-9
Simester and Sullivan Chs 20.1, 21.2, 21.3, 22
Clarkson and Keating Chs 4.III and 4.V
Herring Ch12.1-2 and12.5
Smith and Hogan C&M Ch 23

8.2.1 Self-Defence and Prevention of Crime

S 3, Criminal Law Act 1967
S 76 Criminal Justice and Immigration Act 2008

Clegg [1995] 1 AC 482, [1995] Crim. L.R. 418

Martin (Tony) [2001] EWCA Crim 2245, [2002] Crim. L.R. 136
R v Keane [2010] EWCA Crim 2514, [2011] Crim LR 393
Hichens [2011] EWCA Crim 1626
R (Collins) v SS Justice [2016] EWHC 33 (Admin) esp [19]-[25] and [62]

8.2.2 Duress, Duress of Circumstances and Necessity

Duress

Hudson and Taylor [1971] 2 QB 202, [1971] 2 W.L.R. 1047

Abdul-Hussain [1999] Crim LR 570

Howe [1987] AC 417, [1987] Crim. L.R. 480

Gotts [1992] 2 AC 412, [1992] 2 W.L.R. 284

Bowen [1997] 1 W.L.R. 372, [1996] Crim. L.R. 577

R v Hasan [2005] UKHL 22 (aka Z), [2006] Crim LR 142
R v Ness [2011] Crim LR 645

Necessity and Duress of Circumstances:

Dudley and Stephens (1884) 14 QBD 273

Conway [1989] QB 290, [1989] Crim. L.R. 74

Martin [1989] 1 All ER 652, [1989] Crim. L.R. 284

Quayle [2005] EWCA Crim 1415, [53-58] and [71-82], [2006] Crim. L.R. 148.
Re A (conjoined twins: surgical separation) [2000] 4 All ER 961 pp. 1012, pp. 1027-1030
and pp. 1062-1063 [2001] Crim. L.R. 400
A Buchanan and G Virgo, ‘Duress and Mental Abnormality’ [1999] Crim LR 517
S Gardner, ‘Direct Action and the Defence of Necessity’ [2005] Crim LR 371

Note also the issue of mistaken defences (cf topic 1); see in particular s 76 Criminal Justice and
Immigration Act 2008 and Hasan/Z [2005] 2 AC 467 above, and Gladstone Williams [1987] 3
All ER 411.

Questions to consider:
1. A and B are brothers. Both are dying. Nothing can be done to save A, but if B were to receive a
heart transplant he would survive. A is genetically similar enough to B for his heart to be suitable,
but he is unlikely to die in time for the transplant to save B. D, a doctor, kills A in order to give B
the heart in time to save him. Would it matter if D had A’s permission to do this?

2. In a capsized ferry 20 people are trapped in a rapidly filling lower deck. There is a rope ladder
up which they might climb to safety. On the ladder is P, who is frozen with cold and fear and
unable to move up or down. After shouting has produced no response, D knocks P from the
ladder into the water where he drowns. D and the other passengers escape up the ladder. Is this
situation covered by the decision in Re A?

3. D and P are mountaineers attached to the same rope. P is hanging below D and it becomes
increasingly obvious that the rope will break before rescue can arrive and they will both fall to
their deaths. However, if D were to cut the rope, P would be killed, but the rope would be strong
enough to hold D until he can be rescued. D cuts the rope. Is this situation covered by the
decision in Re A?

4. Why do you think the courts have traditionally been reluctant to recognise the existence of a
defence of necessity?

5. ‘Consistency of approach in defences to criminal liability is obviously desirable. Loss of

control and duress are analogous. In loss of control the words or actions of one person break the
self-control of another. In duress the words or actions of one person break the will of another.
The law requires a defendant to have the self-control reasonably to be expected of the ordinary
citizen in his situation. So too with self-defence, in which the law permits the use of no more
force than is reasonable in the circumstances’ (Lord Lane CJ 1981 in R v Graham (Paul) [1982] 1
WLR 294, 300) (CA)).
Discuss.

6. ‘I do not think it matters whether these defences are regarded as justifications or excuses’
(Walker LJ from where?)
Do you agree?

7. ‘In all human institutions, a smaller evil is allowed to procure a greater good’ (Oliver
Goldsmith, The Vicar of Wakefield (1766), ch 21 available at
<http://www.ricorso.net/rx/library/authors/classic/Goldsmith_O/prose/Wakefield_06.htm>).
To what extent is this principle recognised in the criminal law? Should the application of the
principle in the criminal law be extended in any way?