Criminal Law Ls Law School Lecture Notes

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Criminal Law LS - Law school lecture notes
criminal law (Fourah Bay College)
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Criminal Law
This is substantive criminal law; the criminal law which determines what is or
is not a crime. It is practical and is not concerned with issues of morality.
Criminal law is concerned with why people commit crime. What is or is not a
crime and if it is a crime, then how is it treated?
The function of the criminal law is largely to set the parameters within
which the criminal justice system operates. This criminal justice system is a
tool of social control. So, the criminal law represents the rules of social
control within a society. How are these rules arrived at? Is there an
essential criterion determining which behavior merits sanction or
punishment?
It has been said in the Wolfenden Report that the function or purpose of
the criminal law is to preserve public order and decency, to protect the
citizen from what is offensive or injurious and to provide sufficient
safeguards against the exploitation and corruption of others. Particularly,
those who are especially vulnerable because they are young, weak in body or
mind, inexperienced or in a state of special physical, official or economic
dependence.
It is not the function of the law to intervene in the private lives of citizens
or to seek to enforce any particular pattern or behavior further than is
necessary to carry out the purposes we have applied. To this extent, the
criminal law is a reflection of corporate or social morality. The wrongdoing
which the criminal law seeks to punish is that which threatens the
fundamental values upon which the society is founded.
While it is harmful for the individual to be assaulted or robbed, that

conduct is also harmful to society, as such behavior threatens the well-being
of the society. So, the criminal sanction operates as a mechanism of social
control.
What Particular Conduct is Prohibited by the Criminal Law? - It all depends

on the corporate morality of that society. It is obvious that crimes of
violence, theft and rape stand as paradigms of crime.
Elements of Criminal Liability

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Criminal liability in Sierra Leone is enshrined in the maxim, “ actus non facit
reum nisi mens sit rea”; (an act does not make a man guilty of a crime unless
his mind is also guilty). It has been accepted in common law countries that
there are two necessary elements in a crime; the physical element and the
mental element.
The maxim makes clear that at common law, no man may be found guilty and
punished unless in addition, he had at the time of commission, a legally
reprehensible state of mind. Both elements, mens rea and actus reus must
be proved by the prosecution beyond reasonable doubt. In effect, to commit
a crime, you have not only to do something forbidden but you must have a
particular wrongful intention. These two elements were described by Lord
Goddard as the cardinal doctrine in criminal law; Young Husband v Lufting.
Lord Kenyan CJ was also quoted as saying, “It is a principle of natural justice
that the intent and the act must concur to constitute the crime.”;
Fowler v. Padget.
According to Lord Hailsham, “An act does not make a man guilty of a crime,
unless his mind be also guilty. It is thus not the actus which is ‘ reus’ but the
man and his mind respectively.”; Haughton v. Smith.
In modern times, there have been suggestions that the elements of a crime
are three-fold; mens rea, actus reus and absence of defence. This has not,
however, been widely accepted.
Actus Reus
An actus reus can consist of more than one act. It may consist of all the
elements of the offence other than the state of mind of the defendant or

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accused person. Depending on the nature of the offence, this may include
the circumstances in which the offence was committed and the
consequences of what was done. E.g. a crime of rape requires having carnal
knowledge of the woman without her consent. The lack of consent is a
surrounding circumstance which exists independently of the accused’s act.
Similarly, the same act may be part of the actus reus of different offences,
depending on its consequences. E.g. stabbing someone may form the actus
reus of murder if the victim dies; a result crime. Or stabbing someone may
be causing grievous bodily harm if the victim survives. In each, the accused’s
behavior is the same. So, the consequences will dictate whether the actus
reus is murder or whether it is causing grievous bodily harm.
Why does the law insist on an actus reus as a prerequisite of Criminal

Liability?
First, the requirement of a specific act provides some protection against

false charges.
Secondly, the requirement seeks to assure that the evil intent of the
accused has been expressed in a manner signifying harm to society.
A mere agreement to commit a crime is regarded as a significant

manifestation of the evil intention constituting a conspiracy.
Mere words of encouragement/instruction/command/incitement are

sufficient to render one liable for aiding and abetting a crime.
What exactly is an actus reus?
The actus reus of every crime is different.

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The actus reus of larceny is “without the consent of the owner, takes and
carries away anything capable of being stolen, permanently to deprive the
owner thereof.”
The actus reus of rape is “having carnal knowledge of a woman without her
consent.”
So, with all crimes, the actus reus is the external element of the crime; the
objective requirement necessary for the offence.
There are two (2) categories of crimes and so the essential element of an
actus reus depends on which two species of crime we are dealing with.
Conduct Crimes - The external elements require a prohibited conduct. E.g.

being in possession of drugs or firearms. There has been no harm caused and
no consequence of that possession shown. However, this conduct is simply
forbidden or prohibited by the law.
Result Crimes - The external element of the offence requires proof that the
conduct caused a prohibited result or consequence. So, in murder, it is
necessary to establish the death of another person.
Conduct crimes provide a good illustration of the criminal law punishing

offenders who have caused no obvious harm. However, it leaves one to
wonder if such an approach is justifiable.
Conduct crimes and Result crimes have two (2) elements in common:
First, they both require an act or conduct. E.g. In the case of a conduct
crime, being in possession of firearms without good reason. In the case of a
result crime, for example, the consequence of death.
Secondly, they both require that the act should have been committed in
defined legally relevant circumstances. E.g. the actus reus of rape must show
that the act of intercourse is to have been committed in the circumstances
of a woman not consenting.

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E.g. in Larceny, it requires that the property belongs to another. In the

absence of this circumstance of belonging to another person, then the
offence would not have been committed.
Result crimes require that an additional element is established; namely that

the act committed caused the prohibited consequences. E.g. the death of
another person.
A further illustration is if poison is put into another person’s drink with the
intent to kill that person and the person subsequently dies with the drink
beside him. Liability for murder cannot exist without the drink causing the
death so that if the deceased died of a heart attack, the defendant will be
liable only for attempted murder.
Such were the circumstances in the case of R v. White; it appeared that D

put potassium cyanide into a drink called “nectar” with intent to murder his
mother. She was found dead shortly afterwards with the glass, three parts
filled, beside her. The medical evidence showed that she had died, not of
poison, but of heart failure. D was acquitted of murder and convicted of an
attempt to murder. Although the consequence which D intended occurred, he
did not cause it to occur and there was no actus reus of murder.
Putting these elements together, it is common to find an actus reus

described as
(i) An act committed
(ii) In defined legally relevant circumstances
(iii) For Result Crimes, that the prohibited conduct caused the result or
consequences.
Causation
Causation is part of the actus reus requirement. There may be a situation

where the accused is convicted based on the actus reus alone. These are

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crimes of strict liability; where no mens rea need be proved as to one or

more elements of the actus reus.
There must always be an actus reus for liability. E.g. in a case of larceny, if
the property already belongs to the person taking it, despite any intention
he has to steal, his act cannot amount to larceny.
The act must be voluntary. A fundamental requirement for criminal liability

is that the act of the accused, in the sense of a muscular movement, must be
willed and must be a voluntary expression of the accused’s intention.
Without this minimum degree of accountability, punishment will be unjust.
What constitutes a Voluntary Act?
The following academics and philosophers attempted to define a voluntary

act:
John Austin, in his lecture on Jurisprudence, says an act is “A voluntary

movement of my body or a movement which follows a volition. Movements
which are the consequences of certain diseases are not voluntary acts.”
There are two (2) elements of an act; the desire of a muscular movement
and the movement itself. Therefore, there can be no accountability for the
harm done because of the absence of the will of desired muscular movement.
The conduct of an unconscious person is not a voluntary act as it is not willed
from the mind.
Holmes, in his book “The Common Law”, described a voluntary act as “…a
willed muscular contraction. It is a physical movement resulting from an
operation of the will. The mind is in control of the bodily movement; it sends
instructions to the muscles and the result is voluntary acts. Occasionally, the
mind may not be in control and so bodily movements may take place
independently and so such acts are not voluntary acts.”
Professor Hart, in his book “Punishment and Responsibility”, says, “A
definition of a voluntary act is movement which follows a volition.” He
embraces Holmes’s definition of a “willed muscular contraction”. Hart said,
“How could we define a volition?” An omission is difficult to determine.

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Glanville Williams, in his book “Mental Element in Crime”, offered that “An
act is something more than bodily movement; for bodily movement might
occur in tripping and falling.”
Lord Denning, in the case of Bratty v. A.G. for Northern Ireland said that
“No act is punishable if it is involuntary; and an involuntary act, in this
context nowadays spoken of as automatism, means an act which is done by
the muscles without any control by the mind. For example, a spasm is an
involuntary act, reflex action or concussion or an act done by a person who is
not conscious of what he is doing, such as an act done while sleepwalking. To
prevent confusion, an act is not to be regarded as an involuntary act because
the actor does not remember it. E.g. absent mindedness. Nor is an act to be
regarded as involuntary simply because the doer could not control his
impulse in doing it. E.g. an irresistible impulse.”
As the precise meaning of a voluntary act is not available, the criminal law
has decided to use the requirement of voluntariness as a mechanism to
exclude a diverse range of cases within the ambit of the law. So,
voluntariness is defined by example. Some human conduct is simply perceived
as abnormal to be brought within the ambit of the law.
So, involuntary conduct or automatism exempts the accused completely from
all criminal liability.
The following exclude voluntariness and give rise to the defence of

automatism:
1) Physical Compulsion - E.g. you are knocked off a bike and you land on a
pedestrian and break their leg. This is an involuntary action.
2) Reflex Actions - These are involuntary actions. In the case of

Hill v. Baxter, automatism was successfully pleaded as a defence to a
charge of dangerous driving. The court stated that the purely reflexive
movement of the arms and legs caused by being attacked by a swarm of bees
would not be voluntary. Such a person would not be said to have been driving.

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3) Concussion - A blow to the head may cause blackout or confusion. A

person in such a state of mind who causes harm is excused as this is an
involuntary act.
4) Unconsciousness - Where the unconsciousness is normal, for example, a

mother rolling over and smothering her child in her sleep, or the
unconsciousness is externally caused as where a general anesthetic is
administered for therapeutic purposes, any physical movement will give rise
to a complete defence; automatism.
Where the unconsciousness is said to result from what is termed a euro-

physiological disturbance like stroke/epilepsy, any physical movement in such
a state is equally involuntary. But in a case decided by the HL, R v. Sullivan,
even though the act resulted from epilepsy, there is in this case a real
chance that an insanity verdict might be returned as a matter of policy;
insane automatism. In this case, the HL held that an epileptic fit was akin to
insanity in law so that where a person assaulted another while recovering
from an epileptic seizure and the assailant did not know what he was doing at
the time and had no memory of the incident, it is said that the proper
verdict was not guilty by reason of insanity. The person is deemed to be
suffering from a disease of the mind within the M’naghten Rules.
5) Hypnosis - There is much scientific uncertainty as to its effect. There

have been claims of instances that one cannot hypnotize subjects to do acts
they are unwilling to perform. Nor has there been any record where the
person/accused commits a crime while under hypnotic influence. Although
there are dicta indicating that conduct of the hypnotic would be involuntary.
In R v. Quick and Paddison, the accused, who had inflicted actual bodily
harm called medical evidence to show that he was a diabetic and that he was
suffering from hypoglycemia and was unaware of what he was doing. The
accused wanted to plead that he was acting in a state of non-insane
automatism but Bridge J. ruled that the blackout had resulted from a
disease of the mind and therefore, the plea should have been insanity.
Quick, the accused, changed his plea to guilty and was so found. On appeal,
the CA held that the trial judge was wrong to treat the condition as a
disease of the mind and that the defence of automatism should have been
left to the jury.

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Where there’s an Omission
Breach of Duty to Act - A crime can be committed by omission. But there

can be no omission in law in the absence of a duty to act. Not all omissions
give rise to liability. Criminal liability depends on there being a duty to act or
intervene recognized by the law.
There are Four (4) Recognized situations:
1) Duty arising out of contract.

2) Duty arising out of a relationship.
3) Duty arising out of the assumption of care of the helpless and infirmed.
4) Duty arising from the creation of a dangerous situation.
1) Duty arising out of contract - This was recognized in the case of

R v. Pittwood; a railway crossing gate-keeper opened the gate to let a cart
pass and went off to his lunch, forgetting to shut it again. Ten minutes later,
a hay cart, while crossing the line, was struck by a train. One man was killed
and another was seriously injured. Pittwood was convicted of manslaughter.
Wright J held that “there was gross and criminal negligence, as the man was
paid to keep the gate shut and protect the public…A man might incur criminal
liability from a duty arising out of contract”.
2) Duty arising out of a relationship - The existence of a close relationship

can give rise to a duty to act; a duty such as that owed by parents to their
children or spouses. It is generally accepted that there is such a duty at
common law. However, statute has largely intervened in the case of parents
or their duty to their children.
Under the Children and Young Person’s Act 1933, if there’s willful neglect by
parents to children and they are harmed, the parents would have been
negligent in their duty to protect the children; R v. Sheppard.
3) Duty arising out of the assumption of care of the helpless and

infirmed - This duty was recognized in R v. Instan; the defendant lived with
her aunt who was 73 years of age. The aunt was healthy until shortly before

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her death. During the last 12 days of her life, she had gangrene in her leg
and couldn’t fend for herself, move around or call for help. The defendant
was the only person who knew of this condition. She appeared not to have
given her aunt any food nor did she seek medical or nursing aid. She was
charged with manslaughter and convicted.
Coleridge CJ said, “It would not be correct to say that every moral
obligation involves a legal duty but every legal duty is founded on a moral
obligation. A legal common law duty is nothing else than the enforcement by
law of that which is a moral obligation without legal enforcement. There can
be no question in this case that it was the clear duty of the prisoner to
impart to the deceased so much as was necessary to sustain life. A common
law duty was imposed on the prisoner which she did not discharge.”
In R v. Stone and Dobinson, Stone, 67, was partially deaf, nearly blind and
of no intelligence. Stone co-habited with Dobinson, 43, who was described as
ineffectual and inadequate. Also living with them was Stone’s mentally sub-
normal son. Stone’s younger sister, Fanny, came to live with them and she
suffered from anorexia nervosa. She stayed in her room most of the time
though she was known to creep down to the kitchen to cook when the others
were out. Stone and Dobinson attempted to find her a doctor. In July,
Dobinson and a neighbor washed Fanny, who was confined to bed and was
lying amidst her own excrement. The defendants were unable to use the
telephone and a neighbor was unsuccessful in getting a doctor. No one was
informed of Fanny’s condition and Fanny died. The pathologist’s report said
that she had been in need of urgent medical treatment. Stone and Dobinson
were convicted for manslaughter. Lane CJ said, “There is no dispute, broadly
speaking, as to the matters on which the jury must be satisfied before they
can convict for manslaughter in circumstances such as the present case:
1) The defendant undertook the care of a person who, by reason of age or
infirmity, was unable to care for himself.
2) The defendant was grossly negligent with regards to his duty of care.
3) By reason of such negligence, the person died.
a) Would Stone and Dobinson have been liable if Fanny was Stone’s sister-in-
law?
b) Would they have been liable if they had made no effort at all?
c) Did Stone and Dobinson cause the death of Fanny?
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4) Duty arising from the creation of a dangerous situation - In

R v. Miller, this duty was recognized. Miller, a vagrant squatter, went to
sleep in an abandoned house holding a lighted cigarette. He awoke to find the
mattress smoldering. He did nothing to put it out but moved into an adjoining
room and went to sleep there. The house caught fire. He was convicted of
arson contrary to S.1 (1) and (3) of the Criminal Damage Act 1971. Dismissing
his appeal against conviction, the HL held that a person would commit the
actus reus of the offence in question if, having accidentally started a fire
which created a risk of damage to property, he became aware of what he
had done before the resultant damage was complete but failed to take steps
within his power to prevent or reduce the damage to property at risk. The
reason was that he would be in breach of duty to take such steps, which
resulted from his accidental act.
a) Was Miller found guilty because he had fallen asleep while smoking a
cigarette or because when he awoke he failed to take reasonable steps to
put out the fire caused by his lighting the cigarette?
b) The facts in this case involve damage to property. Would Miller have been
guilty of manslaughter if a fellow squatter sharing his mattress had died of
asphyxiation?
c) Would Miller have been criminally liable for arson or manslaughter if the
fire had been caused by electrical fault?
d) Would it make a difference if the fire had been caused by his 6 year old
son?
e) What is the general principle for which Miller is the authority?
Status Offences (State of Affairs)
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The requirement that there must be an act and the conduct must be
voluntary has caused problems in the context of what are known as
Status Offences; it may be so defined that no conduct is required but the
crime is committed when certain state of affairs exist or the defendant is
in a certain condition or is of a particular status.
Where there is no conduct and, in fact, where there is no fault on the part
of the accused, there are nonetheless exceptional cases where criminal
liability has been derived from established principles; Larsonneur; D, a
French woman, was convicted in that she, “being an alien to whom leave to
land in the United Kingdom has been refused” was found in the United
Kingdom. She had been brought from Ireland into the United Kingdom
against her will in the custody of police. The material fact was that she was
found; the fact that she did not voluntarily come to England was irrelevant.
There was no voluntary act and nothing she could have done but she was
convicted. She appealed but the conviction was upheld as she literally came
within the prohibition; she was
1) an alien;
2) French, and whom permission to land in the England was refused; and
3) Found in England.
In Winzar v. Chief Constable of Kent, the police had been called in to

remove the accused from a hospital corridor. The police found him drunk but
removed him to a police car parked on the highway outside the hospital. He
was convicted of being “found drunk” in the highway, though in reality he was
found by the police in the hospital. It was found to be immaterial that he
had been placed in the highway involuntarily by the police.
In Strowger v. John, the defendant was convicted “for failure to display a

licence on a car windscreen”, contrary to the Vehicles (Excise Act of 1974).
The licence had fallen from the windscreen while the defendant was at work.
The court found out that the licence had become detached without any
negligence or default on the part of the defendant. In effect, the
defendant was held liable in absence of a voluntary conduct.
Another exceptional case where the accused was neither negligent, had no
mens rea or actus reus was the case of Lim Chin Aik v. R; the defendant
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was charged and convicted of contravening the Immigration Ordinance 1952

of the State of Singapore, by remaining in Singapore “after having entered
and stayed” and in fact when he had been prohibited from entering by a
ministerial order. There was no evidence that he was aware of such an order
and he appealed to the Privy Council. Their Lordships advised that his
conviction be quashed as subordinate legislation can only be binding when it
has been promulgated.
In the United States, the Supreme Court of Alabama examined the case of
Martin v. State; the appellant was convicted of being found drunk on a
public highway. He appealed. He was arrested by the police at his house and
taken onto the highway where he allegedly committed the offence,
manifested in a drunken condition. The statute states, “Any person who
while intoxicated or drunk appears in any public place where one or more
persons are present and manifests a drunken disposition by boisterous or
indecent conduct or lewd and profane discourse shall on condition be
charged”. The judge, Simpson J. said, “Under the plain terms of this code, a
voluntary appearance is pre-supposed. An accusation of drunkenness in a
designated public place cannot be established by proof that the accused,
while in an intoxicated condition, was involuntarily and forcibly carried to
that place by the police.” The conviction was quashed.
Another American case was that of Powell v. State of Texas, which

ultimately went to the United States Supreme Court. The appellant was
convicted in a Texas court of “Being found in a state of intoxication in a
public place” and fined $20. His defence was that he was a chronic alcoholic
and so his public drunkenness was involuntary. The trial court, however,
found this to be no excuse. The Supreme Court affirmed this conviction,
holding the appellant was convicted not for chronic alcoholism but for being
found drunk in a public place. This majority decision drew a distinction
between punishment for a status and punishment for manifestation of that
status.
“Presumably, they would hold it to be a wrong to punish someone for having
the common cold but permissible to punish him for sneezing.” - Eke Halloway.
The question is, were Larsonneur, Winzar, Martin and Powell in control of
their status? From these cases, it appears that the criminal law is willing to
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impose criminal liability in the absence of conduct or thought and this is

considered to be a deplorable state of affairs.
What is objectionable about a conviction for status offences is that in such

convictions the defendant is sometimes not in control of their status. For
instance, in Larsonneur, had she brought herself voluntarily to the UK, her
conviction would have attracted no attention. It was her conviction after she
had been brought from Ireland into the United Kingdom against her will in
the custody of police which was particularly objectionable.
In short, status offences are not objectionable if the defendant has control
over their status. It would be wrong to have an offence of common cold but
it would be justifiable to have an offence of having a beard as one has no
control. One would submit that status offences should be dealt with
________________________________________________________
To be dealt with on the same basis as automatism cases. If this is so, it
follows that the requirement of voluntariness can be dispensed with if it was
the defendant’s own fault that he was brought to that status. So, the
question becomes whether Larsonneur, Winzar, Martin and Powell had
control over their status or had they found themselves in those situations
without any thought or negligence on their part?
Causation
In causation cases, the concept of causation comes under result crimes; that
is to say, establishing a sufficiently direct link between conduct and
consequence. For example, A stabs B and B dies. Here, there’s a direct link
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between A’s stab and B’s death. Did A cause the death of B, thus creating
the actus reus of murder? This _______________ problem of causation.
Attempts have been made to assess the physical element in criminal liability
where there are difficulties arising as to the cause of death:
1) Where there is no physical participation by the accused person - In this

case, A may be held criminally liable although he has taken no physical part in
the actual commission of the offence, so that one who procures or advises
another to commit a crime is equally responsible with the actual perpetrator
of the crime.
2) Where the participation is indirect (indirect physical participation), so

criminal liability may be attached to a man who has so acted as to cause or
allow some innocent person to act so as to cause harm. E.g. where a man
secretly adds poison to a drink which he knows or expects another to hand
over to someone else; death caused through an innocent agent. So, A
intending to kill B, adds poison to beer and gives it to a child who knows
nothing about it to give to B. B drinks it and dies. Who is responsible?
3) Intervention by another person or where another has intervened - There

are cases where an act would not have occurred but for the act of the
accused but in which he has been excused on the ground that another
intervened and is a more immediate and direct cause of the harm. So, the
harm is not the consequence of what the accused did but was in consequence
of what the intervener did. E.g. if A, intending to murder, administers poison
to B. While C, without A’s complicity or knowledge, came upon B and shot him
dead. So, C is guilty of murder and A gets attempted murder.
So, in murder or manslaughter it is necessary to place the act of the

accused which caused the death. If the death came about from another
cause, the act is not committed; R v. White; it appeared that D put
potassium cyanide into a drink called “nectar” with intent to murder his
mother. She was found dead shortly afterwards with the glass, three parts
filled, beside her. The medical evidence showed that she had died, not of
poison, but of heart failure. D was acquitted of murder and convicted of an
attempt to murder. Although the consequence which D intended occurred, he
did not cause it to occur and there was no actus reus of murder.
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What Chain of Causation will be, in law, Sufficient to establish Criminal

Liability?
This has raised difficulties and we can accentuate this difficulty by

examples: A is engaged in beating B to death. C, a stranger, brushed him and
adds more beating and so B’s death is accelerated. Who caused B’s death? A
or C? Who gave the fatal blow? So, where in general, B’s death is not caused
solely by A’s conduct, A will not necessarily be exempt. He will be charged.
In R v. Jordan, the appellant had been convicted of murder on evidence he

had starved the deceased who subsequently died of bronchial pneumonia
following a penetrating abdominal wound. The matter went to the CA as new
evidence showed that the death was not caused by a stab wound but by a
mistaken administration of antibiotics. Jordan’s conviction was quashed.
R v. Smith (1959); in the course of a fight between soldiers of different

regiments, D stabbed P twice with a bayonet. One of P’s comrades, trying to
carry P to the medical reception station, twice tripped and dropped him. At
the reception station the medical officer, who was trying to cope with a
number of other cases, did not realize that one of the wounds had pierced a
lung and caused haemorrhage. He gave P treatment which, in the light of the
information regarding P’s condition available at the time of the trial, was
“thoroughly bad and might well have affected his chances of recovery.” D’s
conviction of murder was upheld and counsel’s argument, that the court must
be satisfied that the treatment was normal, and that this was abnormal was
brushed aside.
Lord Parker CJ said, “…if at the time of death the original wound is still an
operating cause and a substantial cause, then the death can properly be said
to be the result of the wound, albeit that some other cause of death is also
operating. Only if it can be said that the original wounding is merely the
setting in which another cause operates can it be said that the death does
not result from the wound. Putting it another way, only if the second cause is
so overwhelming as to make the original wound merely part of the history
can it be said that death does not flow from the wound.”
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R v. Malcherek, (1981); D inflicted upon P injuries which resulted in brain

damage. She was put a life support machine. Some days later, after carrying
out five of the six tests for brainstem death prescribed by the Royal
Colleges, doctors disconnected the machine and half an hour later she was
pronounced dead. The judge withdrew the question of causation from the
jury, ruling that there was no evidence on which they could decide that D did
not cause P’s death. On appeal, it was argued that there was evidence on
which the jury could have found that the doctors caused death by switching
off the machine. The appeal was dismissed. There was no doubt that the
injury inflicted by D was an operating and substantial cause of death.
Whether or not the doctors were also a cause of death was immaterial. They
were not on trial; D was. It was enough that one cause of P’s death was the
injury inflicted by D.
R v. Blaue, (1975); D stabbed P, a young girl, and pierced her lung. She was
told that she would die if she did not have a blood transfusion. Being a
Jehovah’s Witness, she refused on religious grounds. She died from the
bleeding caused by the wound. D was convicted of manslaughter and argued
that P’s refusal to have a blood transfusion, being unreasonable, had broken
the chain of causation. It was held that the judge had rightly instructed the
jury that the wound was a cause of death.
Lawton LJ said, “It has long been the policy of the law that those who use
violence on other people must take their victims as they find them. This, in
our judgment, means the whole man, not just the physical man. It does not
lie in the mouth of the assailant to say that his victim’s religious beliefs
which inhibited her from accepting certain kinds of treatment were
unreasonable. The question for decision is what caused the death. The
answer is a stab wound.”
Can Contributory Negligence be taken into consideration in the doctrine

of Causation?
See R v. Martin, (1827).
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R v. Swindell and Osbourne, (1846); where one or other of the two accused
ran over and killed an old man, Pollock CB directed the jury that it was
immaterial that the man was deaf or drunk or negligent and contributed to
his own death.
Causation in Fact - the ‘But For’ Test
Was the accused’s act, omission or state of affairs a cause of the particular
consequence in question?
That question must be proved beyond reasonable doubt in that the
consequence would not have occurred ‘but for’ the accused’s act.
Dawson, (1985)
Blackwell, (1978)
Watson, (1989)
Is causation in law? Was it the operating and substantial cause? Not every
cause in fact is a cause in law. In order that the accused’s conduct or act is
to be adjudged a legal cause, for the purposes of the actus reus, it must be
an operating and substantial cause of the consequence.
Jordan, (1956)
Smith, (1959)
Was there a novus actus interveniens?
3rd party intervention - Pagett, (1983) and Jordan, (1956)

3rd party intervention re medical treatment - Smith, (1959) and Cheshire,
(1991)
Although the accused caused the original wound necessitating medical

treatment, nonetheless, in the Jordan case, death was caused by a
respiratory infection.
Would an Act of God break the chain of causation?
Southern Water Authority v. Pegrum, (1989)
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Would the act of the Victim himself be the operating and original cause so
as to break the chain of causation?
Roberts, (1977)
Mackie, (1971)
The Eggshell Skull Rule - You take your victim as you find him
R v. Blaue, (1975); D stabbed P, a young girl, and pierced her lung. She was
told that she would die if she did not have a blood transfusion. Being a
Jehovah’s Witness, she refused on religious grounds. She died from the
bleeding caused by the wound. D was convicted of manslaughter and argued
that P’s refusal to have a blood transfusion, being unreasonable, had broken
the chain of causation. It was held that the judge had rightly instructed the
jury that the wound was a cause of death.
So, the accused can only be held responsible for the death or consequence
thereof where the act or omission is a factual and legal cause of the death.
Factual Causation - In order to establish factual causation, the prosecution

must prove two (2) things -
1) That ‘but for’ the conduct of the accused, the victim would not have died
as and when he did; Dwight, (1910).
2) That the original injury or harm arising from the accused’s conduct was
“more than a minimal cause of the victim’s death; the De Minimis Rule - this
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refers to the fact that when a person kills someone, what we actually mean
is that the person’s death occurred earlier than it otherwise would. So, the
acceleration of death caused by the accused’s conduct must be more than
merely trivial. E.g. pricking the thumb of a woman wherein she bleeds to
death; would that be a sufficient, original and substantial cause of death?
Legal Causation - Even if causation in fact is established, it must be proven

that the accused’s conduct was sufficient to amount in law to a cause of the
victim’s death and so legal causation can be proven in one of the following
three (3) ways or a combination of all -
1) The original injury was an operating and significant cause of death as in

the case of R v. Smith, (1959). See also R v. Malcherek and R v. Cheshire;
a dispute arose in a fish and chips shop, ending with the defendant shooting
the victim in the leg and stomach thus seriously wounding him.
See also R v. Jordan.
2) The test as to legal causation is that the intervening act was reasonably
foreseeable.
R v. Pagett, (1983)
R v. Dear, (1996)
3) The Thin Skull Test - Where the intervening cause is some existing
weakness of the victim. Here, the accused must take his victim as he finds
him; R v. Blaue.
Note that in failure to prove causation, factual or legal, the accused will be
acquitted. However, the accused will still be liable for the original act for
non-fatal offences like wounding.
The causal connection between the defendant’s conduct and the prohibited
result (death or wounding) must not be too remote.
It is not significant that the defendant’s conduct be a sine qua non (but-for
cause) of the result. Notwithstanding that, this is an evidential requirement.
To attribute causal responsibility, the conduct must be operative.
In R v. Smith, the word “substantive” was used;
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In Cato, beyond the de minimis or the proximate cause of the prohibited

consequences;
In other words, the act must contribute substantially to the result. This
does not imply that the result must be a direct consequence of the accused’s
physical action.
It has been established in Towers, that one can cause the death of another
by fright or shock, even without touching that person.
How great must the defendant’s contribution be to constitute an

Operative, Significant or Substantial cause to amount to a legal cause?
See R v. Smith, R v. Jordan, R v. Malcherek and

R v. Steele; Steele attacked a girl, causing grave head injuries. Both victims
in Steele and Malcherek were put on life support machines. In each case, the
machines were switched off after brain death had occurred. Both Malcherek
and Steele were convicted at their trials for murder and both appeals were
dismissed.
The same requirement that the defendant’s conduct was the operative,
proximate and significant cause of the prohibited consequences may be
stated thus - A novus actus interveniens will break the chain of causation.
I.e. the intervening event will take over as the operative, proximate or
substantive cause of the consequences, thus relegating the accused’s
conduct to the realms of history.
In what circumstances will such an intervening event be sufficient to

constitute a ‘novus actus interveniens’ ?
In R v. Smith, there were intervening events. In both Smith and Malcherek,

there was no break of causation but in Jordan, there was a novus actus
interveniens.
In the United States, the New York Court of Appeals heard the case of
People v. Kibbe and Krall; the defendants robbed their victim who was an
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inebriated passenger in their car, thrust him onto the highway and drove
away. The victim’s spectacles were still in the defendants’ car. There was no
light on that section of the highway where the victim was thrown. The
nearest building was a gasoline service station half a mile away on the other
side of the highway. In his inebriated state, he crawled to the middle of the
road, was struck by an oncoming truck and was killed. The defendants were
convicted of murder. Their appeal alleged that the actions of the truck
driver were an intervening and superceding cause to relieve them of criminal
responsibility.
The judge said, “We subscribe to the requirement that the defendant’s
actions must be a significantly direct cause of the ensuing death before
there can be any imposition of criminal liability. Applying that criterion to
the defendant’s actions, we conclude that their activities were a sufficiently
direct cause of the death of the victim so as to warrant the imposition of a
criminal sanction. In engaging in a despicable course of action, Kidd and Krall
left a helplessly intoxicated man without his glasses in a position from which,
because of these attendant circumstances, he could not extricate himself.”
The conviction was upheld.
Another case of import as pertains to the act of the victim was the case of
R v. Roberts; a girl who was a passenger in the appellant’s car injured
herself by jumping out of the moving car. She said that she did so because
the appellant had made sexual advances towards her and was trying to pull
off her coat. The appellant was convicted of assault occasioning actual bodily
harm. He appealed saying that causation was not established; the court said
that causation was indeed established.
A case that dealt with the physical condition of the victim was the case of
Hayward; Hayward chased his wife into the street and she fell down. He
kicked her arm and she died. Medical evidence established that she had a
persistent thyroid gland and such persons die from a combination of fright,
strong emotion and physical exertion. The defendant was convicted of
manslaughter as you take your victim as you find him.
A case that dealt with the religious condition of the victim was R v. Blaue; D
stabbed P, a young girl, and pierced her lung. She was told that she would die
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if she did not have a blood transfusion. Being a Jehovah’s Witness, she
refused on religious grounds. She died from the bleeding caused by the
wound. D was convicted of manslaughter and argued that P’s refusal to have
a blood transfusion, being unreasonable, had broken the chain of causation.
It was held that the judge had rightly instructed the jury that the wound
was a cause of death.
Lewis established the standard for taking the psychological condition of

your victim. Here, the defendant shot the victim in the abdomen inflicting a
wound which would have caused death in an hour. The deceased, however, cut
his own throat and died in five minutes. The court conceded that the
defendant would nevertheless be liable if the self-inflicted knife wound
could be causally connected to the defendant’s gunshot wound. I.e. if it was
self-inflicted because of grief or pain or through a desire to shield the
defendant.
In the United States, the case of Jones was heard before an Indiana court.
Here, the defendant raped a girl who then jumped into a river and drowned.
The court held that the death of the girl was a natural result of the
defendant’s act so he could be held to have caused the death.
To conclude, generally, there are two (2) main principles of causation in

criminal law -
First, the accused’s conduct must be a ‘but-for’ cause of the result; a coma
sine qua non. But a ‘but-for’ cause is not enough. A second requirement has to
be satisfied; the accused’s conduct must be the operative, proximate and
significant cause of the result - the conduct of the accused must be the
legal cause of the prohibited consequences; the legal requirement.
This second requirement (legal) is satisfied when the accused’s conduct is a

sufficiently direct cause of the result. One way to determine this is to ask
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whether any other cause or event of sufficient significance intervened to

break the chain of causation.
Note that most of the cases we are dealing with are cases of mens rea and
actus reus. Would this principle still apply in Strict Liability cases or State
of Affairs offences? Would causation apply?
‘Mens Rea’ (The Mental Element)
What is mens rea? D.F. Stevens in his history of the criminal law of England
says that mens rea means “no more than that the definition of all or nearly
all crimes contains not only an outward and physical element but a mental
element. And that mental element varies from crime to crime.
E.g. In murder, the mens rea is any state of mind which comes within the
definition of malice aforethought.
E.g. In larceny, the mens rea is “fraudulently, without a claim of right made
in good faith, permanently to deprive the owner thereof.
E.g. In forgery, the mens rea is anything which can be described as intent to
defraud or to deceive.
So, to enable us to arrive at a full comprehension of mens rea, we have to

look at the definitions of different types of crimes.
So, in effect, one can say that the term mens rea is a technical form of
shorter or a number of conditions to be met in order for criminal liability to
follow.
What are these conditions?
1) The term mens rea may encompass a very large number of conditions; the
only linking factor being the presence of blameworthiness on the part of the
accused. So, in addition to any particular mental state required, one could
include among the conditions, for example, an absence of duress or insanity
or other excuse or justification. So, there could be no culpability if either
the mental state required is absent or the accused had some further legally
recognized excuse or justification for his actions.
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So, mens rea means blameworthiness in the sense of a mental element, plus
the absence of a recognized defence.
On the other hand, the term mens rea may bear a more specialist meaning
like the one given by D.F. Stevens; it may refer to a particular state of mind
required for commission of the crime.
So, in effect, all elements of crime are divisible into either an actus reus or
mens rea and that the actus reus includes absence of a defence such as
insanity, duress etc.
The term mens rea will be used, for our purposes, in its narrow sense of the
mental element required by the definition of the crime and this accords with
the majority viewpoint; a requirement of positive culpability by the accused.
What exactly is the mental element (mens rea) required for so many
crimes in the criminal law?
One thing is clear; that mens rea does not represent any simple standard. If
we conceptualize the expression, we should think of mens rea as a sliding
scale with intention at the top and negligence at the bottom.
Intention is the highest form of mens rea because it implies deliberate

action on the part of the accused. Just below that sliding scale, will be
direct and indirect or oblique intentions - when the accused acts to achieve
purpose A but he’s aware that in doing so, it is virtually certain he will
achieve result B. He can still be said to have intended result B if there is
evidence that he foresaw it as a virtual certainty; R v. Woollin; here, D had
lost his cool when his baby son choked on his food and he had thrown him
four or five feet across a room. The baby died as a result and D was charged
with murder. D said that he had not thought that he would kill the baby, nor
had he intended to. For some unexplained reason the prosecution case was
not that D had the aim or purpose to kill the baby or cause it grievous bodily
harm, but that he must have realized that what he was doing was virtually
certain to cause the baby grievous bodily harm. The judge directed the jury
that it was open to them to find that D had the necessary intent to cause
grievous bodily harm if they were satisfied that he must have realized when
he threw the child that there was a substantial risk that he would cause
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grievous bodily harm. D, having appealed unsuccessfully against conviction to

the CA on the ground that this was a misdirection because the judge had not
directed the jury in accordance with Nedrick, appealed to the HL.
The HL allowed D’s appeal against his conviction for murder and substituted
a conviction for manslaughter. It held that the CA had been wrong to hold
that “virtual certainty” should be confined to cases where the evidence of
intent is limited to the admitted actions of the accused and the
consequences of those actions and was not obligatory where there was other
evidence to be considered. There was no such distinction. The use of
“substantial risk” blurred the line between intention and recklessness and
enlarged the scope of murder; if in either type of case it was necessary to
give a direction in terms of foresight, the direction should be in accordance
with the model direction in Nedrick, described by Lord Steyn as a “tried and
tested formula” which trial judges ought to continue to use.
Further down the scale is R v. Cunningham and recklessness, which requires

proof that the accused was aware of the risk causing harm.
This is followed by Caldwell Recklessness, pronounced in the case of

Metropolitan Police Commissioner v. Caldwell.
So that’s where the evidence is that the accused gave no thought to the risk
of harm but note that this objective form of recklessness has now been
discarded by the HL.
At the bottom of the scale is Gross Negligence, where the fault element is
based on the accused’s gross lack of care.
Further down the slope is where less foresight of consequences becomes an
element of the offence.
Specific Intention
To distinguish between motive and intention, see the case of Ahlers and
cross-reference it with the case of Kupfer.
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In Ahlers, a German consul who assisted German nationals to return home

after the declaration of war in 1914 was held to have intended only to do his
duty as consul even though he claimed he intended to assist the enemy.
In the case of Steane, the defendant, who, during the Second World War,
gave broadcasts which would assist the enemy in order to save himself and
his family from the horrors of the concentration camp, was held not to have
had an “intent to assist the enemy”.
It has been stated that there are four (4) main views as to the meaning of
the word Intention. So, intention is a subjective concept. In this situation, a
court is concerned solely with what an accused is intending at the time of
the offence and not what a reasonable person would have intended in the
circumstances.
Direct Intention
The consequence of an intention is literally desired. Where, for example, A

stabs B because A wants to kill B.
However, an accused may also be legally held to intend a result which he did
not desire. It is a virtually certain consequence of the act and the accused
realizes this and goes ahead anyway; this is Oblique Intention. E.g. somebody
who puts a time bomb on a plane with his diamonds in order to claim
insurance. However, it is a virtual certainty that the passengers will also die
but he goes ahead anyway.
See Hyam v. DPP.
See R v. Moloney.
Specific Intention
See R v. Hancock & Shankland.
See R v. Nedrick.
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See R v. Scalley.
The word “Intention” may encapsulate these situations -
1) A consequence is intended when it is the aim or the objective of the

accused; Direct Intention.
2) A consequence is intended when it is the aim or objective of the accused

or foreseen and certain to occur; Oblique Intention.
3) A consequence is intended when it is the aim/objective of the accused or

foreseen as a virtual, practical or moral certainty. Or being aware that it will
occur in the ordinary course of events. This state of mind is Indirect or
Oblique Intention.
4) A consequence is intended when it is the aim or objective of the accused

or is foreseen as a probable or likely consequence of his actions.
Until the Hyam case was discarded, all of the above states of mind were
embraced for intention. But they have now all been overruled by Moloney;
the appellant and his stepfather, drinking heavily, engaged in a contest to
ascertain who was quicker on the draw with a shotgun. According to the
appellant, he said “I didn’t aim the gun, I just pulled the trigger and he was
dead.” The trial judge directed the jury that the appellant would have the
necessary intention to kill or cause grievous bodily harm when he foresees it
will probably happen whether he desires it or not. He was convicted of
murder. His appeal was dismissed in the CA but was allowed in the HL.
Lord Bridge said “The foresight of a consequence as probable, highly
probable or likely was not the equivalent of intention.”
Now, the law is that there must be a direct or oblique intention.
** Note the next case for possible problem question in the exams. **
In R v. Hancock & Shankland, the defendants, two striking miners, pushed

a large lump of concrete from a bridge onto a large convoy of cars on the
highway. The concrete struck the taxi’s windscreen and the driver was killed.
They claimed that they had not meant to kill or cause serious harm. They
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said that they planned to drop the concrete into the middle lane while the
convoy was in the nearside lane to frighten a miner or block the road to
prevent him from getting to work. They were convicted for murder. The CA
allowed the defendants’ appeal and substituted a charge of manslaughter for
murder. The Crown appealed to the HL but this appeal was dismissed.
In the case of Nedrick, the appellant poured paraffin through the letterbox
of a house and set light to it. The house caught fire and a child died. The
appellant claimed that he did not want anyone to die. He did not succeed and
was convicted of manslaughter. His further appeal was allowed and his
conviction of manslaughter was commuted.
Lord Lane said, “What then does a jury have to decide so far as the mental
element of murder is concerned? In order to reach that decision, the jury
must pay regard to all the relevant circumstances including what the
defendant himself said and did. When determining if the defendant had the
necessary intent, it may be helpful for the jury to ask two (2) questions -
1) How probable was the consequence which resulted from the defendant’s
voluntary conduct?
2) Did he foresee that consequence?
In R v. Walker and Hayless, the appellants threw their victim from a third
floor balcony. They were charged for attempted murder. The trial judge
directed the jury that they could infer intention if there was a high degree
of probability that the victim would be killed and if the defendants knew
quite well that in doing that there was a high degree of probability that the
victim would be killed. The defendants appealed on the ground that the trial
judge was confusing foresight of death with an intention to kill.
Wanting the Result
A defendant or accused person who wants a result to happen clearly intends

that result and that intention will be direct intention. This is so even though
the chances of the result happening are slim.
E.g. If the defendant shoots at his victim a half a mile away knowing it would
easily miss, he still intends to kill because that is what he was trying to do.
However, no matter how much a person was trying to achieve a result, he can
only do so if he recognizes that there is a chance that if he does not believe
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that, the consequences of one’s action, one could hardly be said to have
intended that action.
But if one does not believe that the consequence is a possible result of one’s
actions, one can hardly be said to have achieve the result of one’s action.
Dual Purposes
A defendant can have two or more purposes, both intended.
In R v. Steane, the defendant, a British film actor, was resident and

working in Germany before WWII. When war broke out, he was arrested. As
a result of threats to put his family in a concentration camp and physical
threats to himself, he reluctantly agreed to broadcast on the radio for the
Germans. After the war, he was charged and convicted on a penal code for
“doing acts likely to assist the enemy, with intent to assist the enemy.” He
was convicted and sentenced to seven (7) years imprisonment. He appealed
and the conviction was quashed.
Goddard LJ said, “The appellant asserted he never had the slightest idea or
intention of assisting the enemy and what he did was done to save his wife
and children. In this case, Steane clearly foresaw his actions would almost
certainly assist the enemy. Yet, because it was not his aim to assist the
enemy, it was held he had no intention to assist the enemy.”
Lord Denning commented, “This man Steane had no desire or purpose to
assist the enemy. The Gestapo had said that if he didn’t obey, his wife and
children would be put into a concentration camp, so he obeyed their
commands. It would be very hard to convict him if it was the last thing he
desired to do.”
So, did Steane intend to assist the enemy in order to save his family? This
second limb of saving his family is to be attributed to a motive of saving his
family.
The decision in this case was wrong to have acquitted Steane due to a lack
of intention. An acquittal on the ground of duress would have been more
appropriate.
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Motive is an emotion which gives rise to an intention and causes one to act.
Thus, my motive of a desire to help the poor might cause me to steal to feed
them. This motive would be ignored by the law as it exhibits an intention to
steal; larceny.
Similarly, it was Steane’s motive to save his family and it should be ignored
in so far as it is relevant to an ______________________________.
He had intention but his motive was to save his family.
In the case of Chandler v. DPP, the appellants were deeply opposed to

nuclear weapons and to demonstrate this, they planned a non-violent strike
to immobilize an aircraft at an RAF station for six (6) hours. They were
charged with conspiracy to breach the English Official Secrets Act 1911;
namely, to enter a prohibited place for a purpose prejudicial to the safety or
interest of the State.
The trial judge ruled that they were not entitled to call evidence to show
that it would be for the benefit of the country to give up nuclear arms. The
trial judge directed the jury to convict if satisfied the immediate purpose
was obstruction of an aircraft. The CA dismissed their appeal against
conviction.
Radcliffe LJ said, “The Act of Parliament (The Official Secrets Act 1911) in
this case has introduced the idea of purpose as a determining element in the
identification of the offence charged and lawyers therefore, whose function
it is to attribute meaning to words and to observe relevant distinctions
between different words, cannot escape from this duty merely by saying
that ‘purpose’ is a word which has no sharply defined context. They must do
the best they can to find what its content is in the context of this Act.”
Should not Steane have been resolved the same way as the Chandler case?
Did he not broadcast for two separate purposes? 1) An immediate purpose of
assisting the enemy and 2) The long term purpose of saving his life and
protecting his family.
Steane was acquitted as the court found that he had no intention. However,
it perhaps would have been more appropriate for him to have been acquitted
because he was under duress.
Recklessness
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Some crimes can only be committed intentionally. Therefore, it is necessary

to distinguish Intention from Recklessness.
Where do we draw the line between the two? It all depends on how broadly
one wants to define intention.
Any degree of foresight less than that specified in the definition of

intention, broadly speaking, will constitute recklessness. This concept of
recklessness has had a checkered and uncertain history, with judges
miscalculating as to whether it means “gross negligence”; Andrews v. DPP,
where recklessness was equated with gross negligence.
Or whether it should be limited to cases where the defendant subjectively
realized that there was a probability of the consequences occurring or
circumstances existing but carried on regardless.
So, by the late 70’s, it appeared that the law had at last settled down and
had clearly approved that the subjective element is an essential ingredient in
constructing the subjective meaning of recklessness. I.e. it was the
conscious running of an unjustifiable risk.
An early case on negligence was the locus classicus, R v. Cunningham; this

meaning of recklessness characterized by the conscious running of an
unjustifiable risk was adopted in Briggs, Parker and culminated in the case
of R v. Stephenson; Lane CJ said, “Does the word ‘reckless’ represent that
the defendant must be proved actually to have foreseen the risk of some
damage resulting from his actions and nevertheless to have run the risk? Or
is it sufficient to prove that the risk of damage resulting would have been
obvious to any reasonable person in the defendant’s position?; the objective
test. A man is reckless when he carries out the deliberate act appreciating
that there is a risk that damage to property results from his act. It is,
however, not the taking of every risk which would properly be classed as
being reckless. The risk must be one which is, in all the circumstances,
unreasonable for him to take.”
Under the subjective approach/test, the definition of recklessness both as

to consequences and circumstances, imposes a double test -
1) Whether the accused foresaw the possibility of the consequence
occurring.
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2) Whether it was unjustifiable or unreasonable for him to take the risk.
Whether the risk is justifiable or not depends on the social importance of

what one is doing and on the chances of the prohibited consequence
occurring.
The operation of vehicular road transport, for example, is invariably

accompanied by risk of accident beyond the control of the operator
sometimes; and yet it is socially necessary that this risk be taken. Also,
dangerous surgical operations must be carried out in the interest of the life
and health of patients and so the taking of such risks is socially justifiable.
Ultimately, it is a matter of a balancing of interests; the public interest and

the social interest.
Then came the case of Caldwell which introduced the concept of objective
recklessness. This was followed by the case of Lawrence.
In 1981, the law changed direction radically when the HL handed over two
judgments on the same day, both concerned with the meaning of the concept
of recklessness.
Caldwell/Lawrence Recklessness - The House of Lords decision of Caldwell -

“Where a statute uses the word “reckless”, a different test applies. The
test used in Caldwell is the objective test.
The test used in Cunningham is the subjective test of recklessness.
Lord Diplock said “A person is reckless as to whether any property is

destroyed or damaged if
1) He does an act creating an obvious risk that property will be destroyed or
damaged and
2) When he does the act, he either has not given any thought to the
possibility of there being any such risk or has recognized that there was
some risk involved but has gone on to do it anyway.”; The objective test.
It must be proven that the risk taken was an obvious and serious risk.
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Must the risk be obvious? A person would not be reckless if the risk was so
slight that the ordinary and prudent individual, after due consideration of
the risk, would not be deterred from treating it as negligible.
Caldwell type recklessness is negatived where a person has given thought to
the obvious possibility of the risk in question and has decided, albeit
wrongly, that there’s no such risk.
A case suggesting that there was a lacuna (a gap) in the Caldwell definition
of recklessness was the case of R v. Reid; it was said that the lacuna arises
because a defendant might argue that he considered a particular risk but
decided that it was negligible or non-existent and so he proceeded in the
course of action, resulting in some harm or injury.
So, under the discarded Caldwell test, the defendant would not have been
reckless as he did give some thought of the harm to the person or the
damage to property. Therefore, such a person, it is said, would fall outside
the scope of recklessness.
Caldwell type recklessness has now been discarded by the HL in the case of
R v. G; the only good law is Cunningham/Stephenson Recklessness.
Negligence - Objective Liability
A person is negligent if he fails to exercise such care, skill or foresight as a

reasonable man in his situation would exercise. So, the legal concept of
negligence may be developed to reflect the responsibility that is attributed
in every day life, so negligence means a state of mind.
Is negligence a state of mind like intention or recklessness or is it a failure

to comply with the standard of a reasonable man?
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The mens rea is the fault element required for criminal liability, for
example, in manslaughter but even manslaughter depends on negligence, in
this case, gross negligence that can be equated to negligence.
Most statutory offences expressly employ the word ‘negligence’ in imposing

liability. I.e. failure to comply with the standard of the reasonable man. So,
in that case, the prosecution is not required to prove a “state of mind”.
R v. King was a case involving the concept of mistake as to a first marriage

and here it was said that unreasonable mistake that a first marriage were
void is not a defence in bigamy.
In Phekoo, the accused was convicted despite his innocent state of mind
because he was negligent. This was based on the reasoning that the
reasonable man would not have made such a mistake.
Note that you can also have degrees of negligence such as simple negligence
in the case of tort between one person and another person.
Gross negligence touches on criminal responsibility of being reckless such as

in Andrews v. DPP. I.e. in some cases, the defendant has shown such a total
lack of care, that his conduct transcends mere negligence; this can be
described as gross negligence and can be regarded as blameworthy and
deserving of punishment. For example, manslaughter by gross negligence as
in Andrews.
It is an objective test; the test of the reasonable man.

Even Caldwell/Lawrence type recklessness was synonymous with gross
negligence and this was made clearer in Elliot v. C (a minor); where the risk
must be obvious, does that mean obvious to the individual defendant or the
reasonably prudent person? There are passages in Caldwell suggesting that
the individual defendant is meant but in Lawrence, the House was plainly
looking to the “ordinary prudent motorist” as represented by the jury. It is
this test that prevails. The divisional court in Elliot v. C (a minor)
reluctantly felt themselves bound so to hold. D, a backward 14-year-old girl
who had been out all night without food or sleep, entered a garden shed,
poured white spirit on to the carpet and threw two lighted matches on it.
Fire flared up and the shed was destroyed. She was charged with arson of
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the shed, contrary to S.1 (2) of the Criminal Damage Act 1971. The
magistrates found that she had given no thought to the possibility that the
shed might be destroyed by fire and that, in the circumstances, the risk
would not have been obvious to her if she had given thought to the matter.
The magistrates who had acquitted were directed to convict as it was
thought that the risk would have been obvious to a reasonably prudent man
who stopped to think.
Transferred Malice
Transferred malice is also sometimes referred to as transferred intent.
The paradigm example given is that of the defendant who intends to kill his
victim. He sees a person whom he believes to be his intended victim and
shoots at him. The person dies. In fact, the person he’s killed is the person’s
twin brother. Can the defendant avoid conviction for murder because his
mistake brought about the unintended result? The defendant will be
criminally liable as he intended to kill a human being.
Likewise, if the defendant intended to burn down Public Building One but in
the dark, he mistakenly sets fire to Public Building Two. Will he be criminally
liable? He will be found criminally liable as he intended to destroy the
property of another.
In R v. Latimer, a soldier in a public house aimed a blow at another man with

his belt. The belt glanced off and the heavy buckle struck a woman nearby,
wounding her severely. He intended to strike a man but struck a woman. He
was found criminally liable because he had the intention to injure and the
fact that he did not aim at the woman was considered to be irrelevant. The
comment was made that, “…if a person has a malicious intent towards one
person, and in carrying into effect that malicious intent he injures another,
he is guilty of malice against the person he so injured.”
Limitation of the Doctrine of Transferred Malice
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It is important to notice the limitations of this doctrine; it operates only

when the actus reus and the mens rea of the same crime coincide.
If D, with the mens rea of one crime, does an act which causes the
actus reus of another crime, he cannot, as a general rule, be convicted of
either offence. For instance, D shoots at P’s dog with intent to kill it but
misses and kills P who, unknown to D, was standing close by. Obviously, he
cannot be criminally liable for killing the dog, for he has not done so; nor can
he be convicted of murder, for he has not the mens rea for that crime. A
similar result follows where D shoots at P with intent to kill him and, quite
accidentally, kills P’s dog; D is guilty of neither crime.
In Pembliton, the appellant was involved in a fight outside a pub. He threw a

stone at those fighting him but the stone missed them and broke the window
of the pub. He was charged with maliciously breaking a window under S.51 of
the Malicious Damage Act and was convicted. His conviction was quashed on
appeal as the court said that he did not intend to break the window. His
intention was to strike at his opponents. Therefore, there was no finding
that he had the mens rea of the crime, the actus reus of which he had
caused. Although on this basis, the conviction was quashed, it has been
argued that he could have been convicted if there had been a finding that he
was reckless as to the consequence which had occurred but there was no
such finding.
The intent (mens rea) and the act (actus reus) must coincide where
transferred malice operates, giving rise to criminal liability as in the case of
R v. Gross; D, provoked by blows from her husband, fired at him, intending
to kill him but missed and killed P. It was held that, “…if the firing at the
person intended to be hit would be manslaughter, then, if the bullet strikes
a third person not intended to be hit, the killing of that person equally would
be manslaughter and not murder.”
If D intends to cause GBH to O and, striking at O, he by accident wounds

another person P, he may be indicted for wounding P with intent to cause
GBH to O; R v. Monger; here, Mocatta J. held that D could not be convicted
where the indictment alleged intent to harm P.
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In the case of A-G’s Reference (No.3 of 1994), the HL limited the simple
application of the requirement of mens rea described in Pembliton; that the
accused cannot be convicted if he acted with the mens rea for one offence
but unexpectedly commits the actus reus of another offence, unless the
offence is one where recklessness suffices and he is proved to have been
reckless as to the risk of the type of harm which he actually caused. The HL
held that that doctrine could not apply in a case of murder where an
unintended victim was not in being at the time of the relevant act.
In A-G’s Reference (No.3 of 1994), D stabbed a pregnant woman,
intending to do her serious harm (which is a type of mens rea for murder).
He intended to do serious harm only to the woman. As a result of the attack,
the woman went into premature labour and her child, although born alive,
subsequently died owing to its prematurity. D had clearly committed the
actus reus of an offence of homicide, but the HL held that he was not guilty
of murder. Its reason was that the doctrine of transferred malice could not
apply because the effect of the doctrine was that the intended victim and
the actual victim were treated as if they were one, as if the latter had been
the intended victim from the start.
Strangely, the HL held that D could have been convicted of involuntary
manslaughter of the child. The reason given was that D had the necessary
mens rea for constructive manslaughter, one type of involuntary
manslaughter, when he stabbed the mother and, although the child was a
foetus then, the requisite mens rea was established because when she
became a living person, the child could be regarded as within the scope of
the mens rea which D had when he stabbed her mother before she was born.
Conditional Intention
When a person intends to bring about the elements of an offence

conditionally of some event occurring for example, this does not suffice to
constitute the offence. E.g. if you have the conditional intention to steal on
condition that something is in the purse, that is referred to as a conditional
intention.
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In Easom, the accused took a handbag from a woman in a cinema, opened it

and found nothing worth stealing so he left the handbag on her seat. He was
convicted of stealing but this conviction was set aside on the basis that
conditional appropriation did not suffice to constitute theft since there was,
at the time of such an appropriation, no intention of depriving the owner of
such property.
In Bentham, it was laid down that the prosecution is not required to prove an
immediate or unconditional intent to endanger life; it is sufficient to prove
that the accused possessed a firearm ready for use, if and when the
occasion arises, in a manner which would endanger life. Bentham was charged
with possessing ammunition and firearms; he was convicted. On appeal, the
conviction was upheld. The CA held that possession was not an act done at a
particular moment; it was a continuing state of affairs until the possession
ceases. So, in most cases, it was impossible to establish an unconditional
intention to endanger life until the moment before the firearm was fired and
the mischief at which the section was aimed.
Whether a person’s action is intentional depends on the circumstances and

the nature of the offence.
In Collins, the accused was charged with burglary with intent to commit
rape. He was on the window sill pulling himself in when the girl inside the
house, thinking it was her boyfriend, pulled him in and had sex with him. His
conviction for burglary was set aside. The court said that it was implicit that
a conditional intention to trespass does not found burglary; it must be
showed that the defendant made an effective and substantial effort to get
into the bedroom by his own effort and was unaided.
Strict Liability (Exclusion of mens rea from Certain Cases)
Certain statutory offences require Strict Liability. In the case of

Pearks, Gunstone & Tea Ltd v. Ward, Channel J said, “By the general
principles of criminal law, if a matter is made a criminal offence, it is
essential that there should be something in the nature of mens rea. But
there are exceptions to this rule and the reason is the legislature has
thought it so important to prevent the ________ act from being committed
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that it _________ forbids it to be done. If it is done, the offender is liable

to a penalty, whether he has any mens rea or not and whether or not he
intended to commit a breach of the law.”
If the offence is one of Strict Liability, the prosecution must prove the
actus reus was committed by the accused. This would involve showing that
the accused’s conduct was a voluntary act.
In Cundy v. Le Cocq, D was convicted of selling intoxicating liquor to a

drunken person, contrary to S.13 of the Licensing Act 1872. It was proved
that D did not know the person was drunk and nothing had occurred to show
that he was drunk. While some sections of the Act contained the word
“knowingly”, S.13 did not do so. The Divisional Court held that it was not
necessary to consider whether D knew, or had means of knowing, or could
with ordinary care have detected, that the person served was drunk. If he
served a drink to a person who was in fact drunk, he was guilty.
It should be noted that D was not even negligent. The conviction was upheld
notwithstanding D’s blameless inadvertence as to the crucial factor in the
actus reus.
In Callow v. Tillstone, D, a veterinary surgeon, was charged with abetting

the exposure for sale of unsound meat. At the request of a butcher, G, he
examined the carcass of a heifer which had eaten yew leaves and been killed
by the farmer just before it would have died of yew poisoning. He gave G a
certificate that the meat was sound. G, relying on the certificate, exposed
the meat for sale and was convicted. The justices, holding that D’s
negligence had caused the exposure, convicted him of abetting. Even though
the defendant had taken due care to ascertain the meat’s fitness, the
judges ruled that it was an offence of Strict Liability. Neither mens rea nor
negligence was required in respect of the unsoundness of the meat. Upon
appeal, it was held that his conviction must be quashed.
In the leading case on Strict Liability, Prince, D took a girl out of the
possession and against the will of her father and mother. He knew he was
doing this; but as the jury found, he believed her statement that she was 18
and his belief was reasonable, for she looked very much older than 16. In
fact, she was under 16 and D therefore brought about the actus reus of the
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crime. He was not even negligent, let alone reckless or intentional as to the
girl’s age. In spite of his blameless inadvertence as to this important
circumstance in the actus reus, D was convicted. (Knowledge or mens rea
that the girl was under 16 was not required; therefore it was an offence of
Strict Liability).
Yet in Hibbert, D took away and seduced a young girl but was acquitted
because it was not proved that he knew, or had any reason to believe, that
she was in the possession of her parents. (Proof of mens rea was required as
to the element that the accused knew that the girl was in the control of her
parents).
So, liability whether the offence is of Strict Liability was a matter that had
to be decided by the bench. The charges under these two cases were
virtually under the same rubric, but one was Strict Liability and the other
was not. Strict Liability is, therefore, a child of the judges.
You must also contrast Strict Liability from Absolute Liability. If an offence
is one of Absolute Liability, even the absence of voluntariness on the
accused’s part will not avail him. The prosecution must prove the actus reus
was committed, a positive act or an omission. The accused’s conduct must be
voluntary. For cases of Absolute Liability, see the following -
In Larsonneur; D, a French woman, was convicted in that she, “being an alien

to whom leave to land in the United Kingdom has been refused” was found in
the United Kingdom. She had been brought from Ireland into the United
Kingdom against her will in the custody of police. The material fact was that
she was found; the fact that she did not voluntarily come to England was
irrelevant. There was no voluntary act and nothing she could have done but
she was convicted. She appealed but the conviction was upheld as she
literally came within the prohibition; she was
1) an alien;
2) French, and whom permission to land in the England was refused; and
3) Found in England.
In the case of Lim Chin Aik v. R; the defendant was charged and convicted
of contravening the Immigration Ordinance 1952 of the State of Singapore,
by remaining in Singapore “after having entered and stayed” and in fact
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when he had been prohibited from entering by a ministerial order. There was
no evidence that he was aware of such an order and he appealed to the Privy
Council. Their Lordships advised that his conviction be quashed as
subordinate legislation can only be binding when it has been promulgated.
The case which has been said to be the first to impose Strict Liability is
Woodrow; D was found guilty of having in his possession adulterated
tobacco, although he did not know that it was adulterated. The prosecution
emphasized the purpose of the statute - it was for the protection of the
revenue - and the absence of “knowingly” or any similar word. The court
relied on a section of the Act which empowered the commissioners of excise
to forbear to prosecute where there was no “intention of fraud or of
offending against this Act” - the implication being that the crime was still
committed even where there was no fraud or intention of offending against
the Act. Parke B thought that the prosecution would very rarely be able to
prove knowledge; and that the public inconvenience which would follow if
they were required to do so would be greater than the injustice to the
individual if they were not. Even the exercise of reasonable care would not
have saved D; according to Parke B, he was liable even if the adulteration
was discoverable only by a “nice chemical analysis”. Notwithstanding the
subsequent mass of case-law, the considerations taken into account in this
early case are very much the same as those which influence the decisions of
the courts today.
In view of the current concern about pollution, it’s not surprising that an
example should come from that area. In Alphacell Ltd v. Woodward, the HL
held that D Ltd was guilty of causing polluted water to enter a river,
contrary to S.2 (1) (a) of the Rivers (Prevention of Pollution) Act 1951. They
had built and operated settling tanks with an overflow channel into the river
and provided pumps designed to prevent any overflow taking place. Because
the pumps became obstructed with vegetation, an overflow of polluted water
occurred. There was no evidence that D knew that pollution was taking place
or that they had been in any way negligent. Lord Salmon stressed the public
importance of preventing pollution and the risk of pollution from the vast
and increasing number of riparian industries and said: “If…it were held to be
the law that no conviction could be obtained under the 1951 Act unless the
prosecution could discharge the often impossible onus of proving that the
pollution was caused intentionally or negligently, a great deal of pollution
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would go unpunished and undeterred to the relief of many riparian factory

owners. As a result, many rivers which are now filthy would become filthier
still and many rivers which are now clean would lose their cleanliness.”
Origins of Strict Liability - Crimes of Strict Liability are mainly a creation

of statutes. Although there does not seem to be any statute that creates it
in so many words. So, it was the 19th Century judges who developed the
offence of Strict Liability in cases where attempts were made in construing
a penal offence; Hibbert, Cundy, Prince and.
You can also have common law cases of Strict Liability such as
(i) Public Nuisance
(ii) Criminal Contempt of Court; making the publication of material likely to
prejudice a fair trial.
From 1981 to now, criminal contempt has become a statutory offence in

Britain; no longer a common law offence.
Parliament expressly affirms the Strict Liability rule in criminal contempt.
In Sierra Leone, contempt is a common law offence.
Blasphemy and Slander are common law offences of Strict Liability.
In Lemon and Gay News Ltd, the majority of the HL held that it was not
necessary to prove “an intent to blaspheme”; all that was necessary was an
intention to publish the words which are found to be blasphemous.
A publication is blasphemous where it was indecent or offensive language

likely to shock and outrage the general community of Christian behavior or
any religion.
How to Identify offences of Strict Liability
1) Crimes of Strict Liability are statutory offences.

2) The wording of the Act (content of provisions of the law).
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The court’s first duty is to try to ascertain the intention of parliament. Not
from any extraneous sources but from the wording of the Act itself. Look
out for certain key words in the Act which would require dispensing with the
need for mens rea. Key words like “Permitting or Allowing”, “Cause” as in the
case of Alphacell Ltd v. Woodward, “Possession” as in Wrothwell or Warner
and “Knowingly” which generally import mens rea, but at times they say
notwithstanding the word, it is an offence of Strict Liability as in the case
of Sherras v. De Rutzen. “Willfully and Maliciously” may import mens rea or
it depends on the construction by judges; Cunningham.
See also R v. Sheppard, (1981) and R v. Vickers, (1957).
Another aspect of the Presumption of Mens Rea
Mens rea is presumed (It can be rebutted) unless contrary is shown either
expressly or by necessary implication that the offence does not need proof
of mens rea; Sherras v. De Rutzen; Wright J said, “There is a presumption
that mens rea, or evil intention, or knowledge of the wrongfulness of the act,
is an essential ingredient in every offence; but that presumption is liable to
be displaced either by the words of the statute creating the offence or by
the subject-matter with which it deals, and both must be considered.”
In Brend v. Wood, it was held that unless a statute either clearly or by

necessary implication rules out mens rea as a constituent part of a crime, a
court should not find a person guilty of an offence against the criminal law
unless he has a guilty mind.
In Sweet v. Parsley, the presumption of mens rea was reaffirmed. The HL

overruled the cases which decided that being “concerned in the management
of premises used for the purpose of smoking cannabis” is an offence of
Strict Liability. D, a schoolmistress, was the subtenant of a farmhouse in
the country. She let the rooms, retaining one room for her own use and
visiting the farm occasionally to collect rent and see that all was well.
Cannabis was smoked in the farmhouse but it was found as a fact that she
had no knowledge whatever of this. The Divisional Court nevertheless
dismissed her appeal. She was “concerned in the management” and that was
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enough. The HL quashed her conviction. The “purpose” referred to in the

section must be that of the person concerned in the management; and D had
no such purpose. Lord Reid said that the offence she was convicted of was
not a Strict Liability offence.
Another case which reaffirmed the presumption of mens rea was the case of
Gammon v. A-G of Hong Kong; Scarman LJ indicated matters the courts
should consider to determine if the presumption has been rebutted -
a) The Statutory Context.
b) The Social Context.
c) The Severity of the Context.
d) Promoting the Enforcement of Law.
Rebutting the Presumption
1st Factor - Statutory Context - Here, we’ll examine other sections of the
statute to see if they contain words that point out mens rea. If they contain
such words, then the presumption is that it is not an offence of Strict
Liability. On the other hand, if they do not contain such words like,
“consciously” and “Knowledge”, then it is said that the offence will be one of
Strict Liability.
Purpose of the Enactment - What was the purpose of the enactment? In

the case of Cundy v. Le Cocq, the purpose of the enactment was for the
“repression of drunkenness”. Therefore, it was right to place upon the bar
owner the responsibility to determine whether the customer was sober and
so they made this an offence of Strict Liability.
In Pharmaceutical Society of Great Britain v. Storkwain Ltd., the

defendant had been charged under the Medicines Act 1968 with supplying
prescription only drugs to customers who had presented false prescriptions.
The defendant believed in good faith and on reasonable grounds that the
prescriptions were valid. The presence of the express requirement of mens
rea in other sections of the Act and the absence of such a requirement in
this section under which the person was charged added that “pharmacists
were in a position to put illicit drugs on the market.” The judges were led to
conclude that Parliament intended to impose Strict Liability.
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So, the fact that one section of the Act is silent regarding mens rea when
other sections are not is not conclusive of the question whether that section
creates an offence of Strict Liability. It will depend on the construction
given to it by the judges; see Sherras v. De Rutzen.
You must examine the statutory context and the social context to see the
judge’s reasons for construing the offence as one of Strict liability. See the
case of Gammon v. A-G of Hong Kong.
Defences to Strict Liability
The Canadian case of R v. City of Sault Ste Marie developed a general due
diligence or non-negligence defence to offences of Strict Liability. Here,
the burden of proof is on the accused. The prosecution need prove only that
D caused the actus reus but he may escape liability by proving that he took
all reasonable care to avoid the commission of the offence.
In the Australian case of Proudman v. Dayman, a “halfway house” was

developed; a compromise between mens rea and strict liability in regulatory
offences; here, D might be convicted without proof of any mens rea by the
Crown, unless he tendered credible evidence of an honest and reasonable
belief in a state of facts which, had it existed, would have made his act
innocent; in which case, the onus would lie with the Crown to prove beyond
reasonable doubt that he had no such honest belief or that his belief was
not reasonable.
Vicarious Liability
In the law of Tort, an employer is responsible for the torts of his employees
acting in the course and scope of their employment; this is known as the
Doctrine of Vicarious Liability and it is a form of strict liability arising from
the master-servant relationship without reference to any fault on the part
of the employer.
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There is no such general rule in the criminal law. Generally, if the

employer/master is to be criminally liable, it will be on the basis of being an
accessory. This principle was stated by Raymond CJ in R v. Huggins where
he said, “In criminal cases, the principal is not answerable for the Act of his
deputy as he is in civil cases: they must each answer for their own acts, and
stand or fall by their own behaviour. All the authors that treat of criminal
proceedings proceed on the foundation of this distinction; that to affect the
superior by the act of his deputy, there must be the command of the
superior which is not found in this case.”
So, if the master authorized or was generally involved in his servant’s crime,
he would be liable in principal in the second degree. But this would be
personal rather than vicarious liability.
Is Vicarious Liability the same as Strict Liability? See Sherras.
At common law, Public Nuisance (Stephens), Criminal Libel and Contempt of

Court were crimes to which the doctrine of vicarious liability applied; an
exception to the general rule.
Whether ran offence created by statute is one of strict liability depended

on the construction of the statute by judges. But vicarious liability can be
viewed very much as stemming from judicial decisions; vicarious liability is a
result of the judicial interpretation of statutory offences of a regulatory
nature. So, the courts/judges have been anxious that the purpose of the
statute might not be defeated if the employer/master might escape liability.
Therefore, they have imposed liability in two (2) distinct situations to the
rule of the doctrine that the master is not generally liable for the acts of
the servant unless he is an accessory.
1) Delegation Principle - When a person has delegated to another the
performance of duties imposed upon him by the law.
2) Imposition by Law - Where, in law, the physical acts of the servants are
described to be the physical acts of the employer. This is done by statutory
construction.
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1) Delegation Principle - This applies where there is a master/servant

relationship but not exclusive to it. It also applies to co-licensees as in the
case of Linnett v. Metropolitan Police Commissioner.
A good application of the delegation principle may be found in the case of

Allen v. Whitehead; under S.44 of the Metropolitan Police Act 1839, it is an
offence to “knowingly permit or suffer prostitutes or persons of notoriously
bad character to meet together and remain in a place where refreshments
are sold and consumed”.
D, the occupier of a café, while receiving the profits of the business, did not
himself manage it, but employed a manager. Having had a warning from the
police, D instructed his manager that no prostitutes were to be allowed to
congregate on the premises and had a notice to that effect displayed on the
walls. He visited the premises once or twice a week and there was no
evidence that any misconduct took place in his presence. Then, on eight
consecutive days, a number of women, known to the manager to be
prostitutes, met together and remained there between the hours of 8 p.m.
and 4 a.m. It was held by the Divisional Court, reversing the Metropolitan
Magistrate, that D’s ignorance of the facts was no defence. The acts of the
manager and his mens rea were both to be imputed to his employer, not
simply because he was an employee, but because the management of the
house had been delegated to him.
There is some doubt as to the degree of delegation which is necessary to

bring the principle into operation. In Vane v. Yiannopoullos, Parker LCJ said
that, “It must be shown that the licensee is not managing the business
himself but has delegated the management to someone else…”
The ratio of the delegation principle is that where there’s been a delegation
of authority, the delegation must be complete.
In this case, Lord Reid held that there was no delegation by the respondent
necessary to make him answerable for the unauthorized act of the servant.
Lord Reid appears to have confined the principle to cases where the licensee
is absent from the premises leaving another in charge. It was held that the
principle was inapplicable in that case where the licensee was on the
premises at the time of the offence, but not on the floor where a waitress,
whom he had instructed as to her rights to sell intoxicating liquor, made an
illegal sale.
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Lord Reid drew a distinction between acts done by a servant without the
licensee holder’s knowledge whilst the licensee holder was on the premises
and the giving of general supervision of the business.
In considering acts done without the knowledge of the licensee holder but
with the knowledge of the person whom the licensee holder had left on the
premises, in such a case, was the knowledge of the person left in charge
imputed by the knowledge of the licensee holder?
Contrast Vane v. Yiannopoullos with Howker v. Robinson.
In Howker v. Robinson, it was held that whether there had been delegation
is a question of fact, and that a licensee serving in the public bar had
delegated responsibility to a bar man in the lounge. It contradicts the Vane
case. See the judgement of James J.
2) Imposition by Law - Apart from the delegation principle, the courts may
so interpret a statute as to render a person criminally liable for the acts of
another, rendering the acts of an employee the acts of an employer. This
had been adapted in cases where the statute used certain words like “using”,
“keeping”, “being in possession” and “selling”; it was interpreted that
although the owner of the supermarket did not himself “sell” physically, he is
deemed in law to have sold because it is only him that can transfer title.
In the case of Coppen v. Moore (No.2); D owned six shops, in which he sold
American hams. He gave strict instructions that these hams were to be
described as “breakfast hams” and were not to be sold under any specific
name of place or origin. In the absence of D, and without the knowledge of
the manager of the branch, one of the assistants sold a ham as a “Scotch
ham”. D was convicted under S. 2(2) of the Merchandise Marks Act 1887 of
selling goods “to which any…false trade description is applied”.
Lord Russell CJ said, “It cannot be doubted that the appellant sold the ham
in question, although the transaction was carried out by his servants. In
other words he was the seller, although not the actual salesman. It is clear
also, as already stated, that the ham was sold with a ‘false trade description’
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which was material. If so, there is evidence establishing a prima facie case
of an offence against the Act having been committed by the appellant”.
In Griffiths v. Studebakers Ltd, it was held that the employee may be

convicted as an accomplice. So, where it is only the licensee or other
specially designated person who can commit the offence, the
licensee/designate will be the principal offender; Coppen v. Moore (No.2).
In Goodfellow v. Johnson, the licensee was convicted because as the

licensee, he was the only one allowed to sell drinks on the premises; the duty
to sell was imposed on the licensee.
In Linnett v. Metropolitan Police Commissioner, there were two licensees;

one was sleeping and one was acting. Disorderly conduct took place on the
premises to the knowledge of the active licensee. It was held that one of
two co-licensees was liable for the acts of the other in knowingly permitting
disorderly conduct in the licensed premises, contrary to S.44 of the
Metropolitan Police Act 1839, although the other was neither his servant nor
his partner, but simply the delegate in “keeping” the premises.
Limitations to the Doctrine of Vicarious Liability
In Ferguson v. Weaving, the doctrine of vicarious liability was found to be

inapplicable on the charge of aiding and abetting under S. 4 of the
Licensing Act 1921. It is so because the defendant lacks actual mens rea for
the charge of aiding and abetting.
Another limitation was noted in Gardner v. Akeroyd, where the doctrine of

vicarious liability was found to be inapplicable on a charge of attempting to
commit a crime, as the accused could not be convicted unless he knew of the
existence of all of the circumstances required by the actus reus of the
offence of attempt.
Is the offence of Vicarious Liability really needed in the criminal law?
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Corporate Liability
A corporation is a legal person and therefore may be criminally liable even

though it has no physical existence and it cannot act or think except through
its directors. So, criminal offences may also be committed by companies and
not just by persons. This raises the problem regarding the existence of
mens rea. How do we define the state of mind of a company?
The law has developed two (2) devices by which criminal liability can be
imposed upon a corporation. At one time, a company was held to be outside
the ambit of the criminal law, but today, since it is regarded as a person in
law, a company can be held criminally liable -
1) For Vicarious Liability.
2) Under the Doctrine of Identification.
1) Vicarious Liability of a Company - This arises in two (2) situations -
i) Where an individual delegates to another the performance of duties cast

upon him by a statute.
ii) An employer may be liable for the acts done physically by his employee, as
they might be held to be acts of the employer. This form of vicarious
liability is found only in cases where the statute imposes strict liability like
“selling” or “using”.
So, in strict liability offences, where the statutory interpretation of the

actus reus can be interpreted in such a way to cover someone other than the
actual perpetrator.
The personal criminal liability of the corporation is far wider than the
narrow limits governing vicarious liability and it is now accepted that a
corporation may be liable for a wide variety of offences notwithstanding the
presence of the mental element in most serious offences as well as the
fictional nature of a corporation as a personality.
2) The Doctrine of Identification - This doctrine applies to all offences to

which vicarious liability does not attach. The Identification Theory allows
certain senior officers of a company to be recognized for legal purposes as
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being the company itself, such that any criminal liability they incur while
going about the business of the company can be assigned to the company.
These corporations can only act and think through their officers. The
Managing Director, for example, may be regarded as the brain and hands of
the company; he is in control of the affairs of the company. This extends to
the company secretary or managers if they have sufficient executive power.
In the case of Tesco Supermarkets Ltd v. Nattrass, Lord Reid opined that
the phrase “alter ego” was misleading since the person who speaks and acts
as the company is the company. The branch manager in this case was not the
alter ego.
A person is not a “controlling officer” simply because his work is brain work
and he exercises some managerial discretion, since not all such persons
“represent the directing mind and will of the company and control what it
does.” The manager of a supermarket belonging to a company owning
hundreds of supermarkets is not the company’s “brains” and does not act as
the company.
In Tesco Supermarkets Ltd v. Nattrass, Lord Reid said that the company
may be criminally liable for the acts only of “…the board of directors, the
managing director and perhaps other superior officers of a company who
carry out the functions of management and speak and act as the company.”
Viscount Dilhorne said that the company may be criminally liable for the acts
of a person “…who is in actual control of the operations of a company or a
part of them and who is not responsible to another person in the company
for the manner in which he discharges his duties in the sense of being under
his orders.”
Lord Diplock thought that the question is to be answered by “…identifying

those natural persons who, by the memorandum and articles of association or
as a result of action taken by the directors or by the company in general
meeting pursuant to the articles, are entrusted with the exercise of the
powers of the company.”
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If those persons who are responsible for the general management of the
company delegate their duties to another, then the acts of that other will be
the acts of the company.
Once the facts have been ascertained, it is a question of law whether a

person in doing particular things is to be regarded as the company or merely
as the company’s employee or agent. Accordingly, the judge should direct the
jury that if they find certain facts proved, then they must find that the act
and intention of the agent is the act and intention of the company. It is not
sufficient to direct that the company is liable for its “responsible agents” or
“high executives”, for such persons are not necessarily the company. The
test is the same whether the offence be serious or trivial.
In the Tesco case, the company, being charged with an offence under the
Trade Descriptions Act 1968, relied on the statutory defence that they had
taken all reasonable precautions and exercised all due diligence and that the
commission of the offence was due to the act or default of “another
person”, namely the branch manager, who had failed to supervise the
assistant who actually committed the offence. Since the manager was the
“hands” and not the “brains” of the company, it was held that the defence
was available. It would have been otherwise if it had been not the manager
but a director who had failed in his duty.
Limitations on Corporate Liability
1) It is accepted that a corporation cannot be convicted of offences such as

murder; R v. Hollage Ltd.
2) In R v. McDonnell, it was held that a company cannot commit a conspiracy

where the alleged conspirator is a company of a one-man type of business.
This is because, in order that there should be a conspiracy, there must be an
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agreement between two minds, and the director’s mind is that of the
company only in a purely artificial sense.
Can a company be guilty of Bigamy, Rape or Perjury? Yes.
It had, however, been formerly held in R v. Curry & Bros that a company
could not be guilty of manslaughter but today, a corporation can be tried for
manslaughter; R v. Northern Strip Mining Construction Co Ltd.
Complicity - Parties to a Crime
In our criminal law, crimes are classified into Treason, Felonies and
Misdemeanors. In England, these classifications have now been abolished.
Now, in England, there are arrestable and non-arrestable offences, by virtue
of the English Criminal Law Act 1967.
In the criminal law of Sierra Leone, there are four (4) degrees of
participation in felonies -
1) Principal in the First Degree.

2) Principal in the Second Degree.
3) Accessory Before the fact.
4) Accessory After the fact.
In summary offences, all participants are liable as principals. In

misdemeanors and in summary offences (magistrates’ court), the position will
be the same except that there’s no accessory before the fact.
Accomplices are the principal offenders (perpetrator) and the accessories.
1) Principal in the First Degree - The perpetrator of the offence. In
murder, it is that person who struck the fatal blow. In bigamy, it is the one
who being married, marries again. In perjury, it is the person who having
been sworn, lies to the court. In larceny, it is the person who takes and
carries away permanently with the relevant animus firendi (intention to
steal). The perpetrator is normally identified by the definition of the crime.
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Two persons may be joint perpetrators. For example, where a group of men
beat another with sticks, stones and fists, and that other person dies of the
aggregate violence. In R v. Macklin and Murphy, this was clearly
demonstrated. In this case, it was said that “If several persons act together
in pursuance of a common intent, every act done in furtherance is…in law,
done by all of them.”
Note that part of the crime may be committed by one principal and another
part by some other person. For example, in burglary, one person may break
and the other person enters, whether actual or constructive breaking.
In libel, where A composes the libel, B prints the libel and C publishes the
libel, all three are principal perpetrators.
Note that the person committing the actus reus may not be the only one who
is liable for the commission of the offence; if they play a part in the crime,
they too may be liable as secondary parties.
Innocent Agents - There are two (2) situations where the person committing
the actus reus is an innocent agent -
1) When someone lacks the mens rea for the offence; although he commits
the actus reus of the offence but he has no mens rea. For example, a
terrorist who sends an anthrax letter bomb which risks the recipient will be
the principal and the postman who unknowingly delivers the letter is merely
an innocent agent; he lacks the mens rea.
2) Where someone has a defence. If, for example, Swallow persuades Nicol
to shoot and kill Nelson-Williams, by convincing Nicol that the target is a
baboon rather than a human being, Nicol is an innocent agent and can rely on
the defence of mistake. Swallow will be the principal offender. The same
applies if the principal offender uses someone else below the age of criminal
responsibility to bring about the actus reus; doli incapax.
In R v. Michael, Michael gave a nurse poison, saying it was medicine and it

was to be given to Michael’s child. One of the nurse’s children innocently
gave the medicine to Michael’s child who subsequently died. Michael was
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convicted of murder even though the administration of the poison was by an

unconscious or innocent agent.
In R v. Manley, it was held that if a man sends a 9 year old child into a shop
to steal a tin of sardines, the man himself will be a principal in the first
degree. Because of the irrebuttable presumption of doli incapax, whether
the child knew the act was wrong or not, the man will still be the principle in
the first degree.
Offences where the concept of Innocent Agent Cannot Apply -

Exceptions
1) Bigamy - If we examine bigamy, for which the actus reus is marrying while
still married to someone else, it would seem inappropriate to rely on the
doctrine of innocent agent.
2) Rape - The case of R v. Cogan and Leak concerned the offence of rape,
which, like bigamy, one would have expected to be an offence that had to be
committed in person. Here, Leak made his wife have sexual intercourse with
Cogan. Mrs. Leak did not consent but Cogan thought that she did. Cogan’s
mistake meant that he lacked the mens rea of rape and so he was not liable;
he was an innocent agent. Leak, however, was liable as the principal offender.
This case has been heavily criticized but it is said that this same philosophy
can be seen in the case of DPP v. K & C.
* By the nature of bigamy and rape, they are crimes which need to be
carried out personally.
In DPP v. K & C, two teenage girls, aged 11 and 14, were convicted as
accomplices to a rape for procuring the principal offence. So, the
explanation in R v. Cogan and Leak was explained and supported by the
decision in DPP v. K & C.
2) Principal in the Second Degree - The principal in the second degree is

the person who “aids and abets” the principal in the first degree at the very
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time when the felony is being committed. Such principals in the second
degree are often termed “aiders and abettors”. Note, however, that an
accessory before the fact may also aid and abet.
So, how do we distinguish between a principal in the second degree and an

accessory before the fact? (a) The Principal in the second degree is present
at the time of the commission of the offence, whereas the accessory before
the fact is not necessarily present at the time of the commission of the
offence. The key to distinguishing the two is the element of presence at the
scene of the crime; actual or constructive presence. (b) Knowledge as well as
presence must be shown for A to be a principal in the second degree.
There must be sufficient presence at the time the offence is being

committed. In the case of Du Cros v. Lambourne, it was held that the owner
of a car, who sits in the passenger seat while another drives it dangerously,
can be convicted, as an accomplice, of dangerous driving if he deliberately
fails to prevent it. The owner was in control even though he was not driving;
he could have stopped the driver from driving dangerously. Therefore, he
was found to be an aider and abettor by omission.
In R v. Baldessare, D1 and D2 unlawfully took X’s car and D1 drove it

recklessly, causing P’s death. It was held that D2 was guilty of manslaughter
as an abettor. Prosecuting counsel, in this case, commented that “The
common purpose to drive recklessly was.....shown by the fact that both men
were driving in a car which did not belong to them and the jury were entitled
to infer that the driver was the agent of the passenger. It matters not
whose hand was actually controlling the car at the time.”
In the case of Rubie v. Faulkner, the supervisor of a learner driver of a

motor vehicle was convicted of aiding and abetting the learner driver of
driving without due care and attention. The supervisor was the principal in
the second degree whilst the learner driver was the perpetrator of the
crime.
A principal in the second degree is also termed an accomplice.
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Note that receivers of stolen goods are also treated as accomplices of the
thieves from whom they received the goods. Would the receiver be an aider
and abettor?
The secondary parties, often described as accomplices or accessories, are

governed by the provisions of S.8 of the Accessories and Abettors Act 1861.
The case of R v. Craig and Bentley attracted the attention of the film
world, resulting in the production of the movie, “Let Him Have It”. Bentley
was caught and arrested after the pair (Craig and Bentley) were chased
across rooftops by the police. Craig had a gun and Bentley is alleged to have
said to Craig, “Let him have it”, so Craig then shot and killed a policeman.
Craig was charged with murder and Bentley was charged as an accomplice.
Bentley argued that when he shouted “let him have it”, he was telling Craig
to hand over his gun rather than encouraging him to shoot the policeman.
Nevertheless, both men were convicted. Bentley was hanged and Craig was
sentenced to life imprisonment.
How does it factor into S.8 of the Accessories and Abettors Act? May a
person as a secondary party, be charged, indicted and punished as a principal
offender even though he is a secondary party?
See R v. Gallin.
Wilcox v. Jeffrey, (1951); there must be sufficient encouragement;

effective assistance.
R v. Coney, (1882); knowledge and presence are essential.
Johnson v. Youden
National Coal Board v. Gamble, (1959).
In Tuck v. Robson, it was established that a person who has some special
legal right to stop an offence must do so. This ratio was applied against a
publican who failed to take steps to stop customers drinking at closing time.
It is only the customer who commits the offence of late drinking but the
publican has a legal right to throw people out and if not, he is said to be
aiding and abetting the offence of drinking after the prohibited hour. The
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licensee aided and abetted three customers to consume intoxicating liquor

after hours.
Two (2) things must be proved before an accused can be held to be aiding
and abetting -
1) He must have full knowledge of the facts constituting the offence. In
Tuck v. Robson, the licensee knew that after hours drinking was going on.
2) There must be some form of voluntary assistance, sometimes termed
‘encouragement’. Here, there was inaction.
Can that amount to the accused being guilty of aiding and abetting?
1) In this case, the licensee is in control and
2) He has full knowledge of drinking after hours.
3) He took no steps to prevent that happening.
Here, there was passive assistance; being present and failing to take steps
such as ejecting the offenders.
See R v. Clarkson and Others.
3) Accessory Before the Fact - An accessory before the fact is one who
“counsels or procures” the commission of a felony. Unlike a principle in the
second degree, he is not present or assisting at the time of the offence.
The Requirements for being indicted as an Accessory Before the Fact are -
1) That he knew the particular act contemplated.
2) That he approved or assisted in the commission of such an offence.
Mere knowledge without evidence of assistance or encouragement is not

enough; R v. Fretwell; Fretwell, at the request of a pregnant woman wanting
an abortion, obtained a corrosive substance at her instigation. He was
influenced by her threatening to kill herself. He had knowledge for the
purpose for which she wanted the corrosive substance. Though he gave it to
her, he was unwilling that she should use it. She took it and died. The case
went to appeal and it was held that Fretwell was not an accessory before the
fact. Note that encouragement/assistance given by the accessory before
the fact must be intentional in the sense of aiding and abetting.
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In R v. Lomas, Lomas had been in possession of an instrument of house

breaking owned by one Mr. King. At King’s request, Lomas returned it to him
knowing King wanted it for burglary, generally. After the burglary, King
returned it to Lomas and then paid him money. Lomas was charged and
convicted as an accessory before the fact. The conviction was quashed
because the case came up on appeal by a special verdict of the jury.
Here, Lomas handed the crowbar to King with knowledge it was wanted for
burglary but he didn’t know of the particular burglary.
The court held that the question of law was whether, on the finding of the
jury, he was an accessory before the fact to that particular burglary and not
any burglary. The court was bound by the words of the special verdict
showing that Lomas had no knowledge of any specific burglary and did not
indicate any approval or encouragement for that particular burglary.
1st Comment - Everyone has a right to take reasonable steps to prevent the
commission of an offence, so it is said that Lomas would have been justified
in refusing to hand over the crowbar and to report to the police.
2nd Comment - If a murderer asked you to return his knife so that he could
commit murder, would you refuse to hand it over?
Lomas seems to indicate that if you did return the knife and a murder was
indeed committed, you would not be an accessory before the fact.
So, it is said that, on the whole, it would seem to be severe to treat as an

accessory a man who has done nothing to encourage crime and whose only act
of helping is to return property belonging to another.
In R v. Bullock, Bullock had been convicted of being an accessory before the

fact by supplying burglars with a motorcar which he had hired on each of
two occasions to effect a burglary. The matter went up to the CA and in
dismissing the appeal, the judge said, “In the circumstances of this case,
once it is plain that the appellant had hired the car, and had control of it, it
was equally plain if he knew that it was being used, that he must also have
committed it to be used, he must have formally or informally have lent it for
that purpose. And that was enough. It must have been borrowed, if
borrowed at all for that specific purpose…”
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Two important points were established in this case -
1) Mere knowledge is not sufficient.

2) Something more is needed.
The judgment did not state expressly what is needed in addition to

knowledge. However, the loan of the car was an aid to the burglars. It also
showed that the appellants approval or encouragement for the commission of
the offence.
The case of R v. Bainbridge involved the offence of office-breaking. It was

held that it was necessary to prove that the accused knew the particular
crime that was intended and that the equipment provided by him was bought
with that in view. However, it was not necessary that he should know the
particular premises or particular date of the office-breaking. I.e. he is not
compelled to know the details of the particular type of crime committed.
In DPP for Northern Ireland v. Maxwell, this ratio was approved and
extended. It was held that the person may properly be convicted of aiding
and abetting the commission of a criminal offence without proof or prior
knowledge of the actual crime intended. All that has to be shown is that he
knew an offence was about to be committed.
The appellant was a member of an illegal organization in Northern Ireland
which had been responsible for sectarian violence and bombings. Maxwell was
told by members of the organization to guide a car to a public house. He
knew he was being sent on a terrorist attack but did not know what form it
would take. One of the terrorists threw a bomb into a building after
Maxwell’s departure. The attack failed.
Maxwell was charged with doing an act with the intent to cause an explosion
by a bomb, contrary to the English Explosive Substances Act 1883 and of
being in possession of a bomb. Lord Scarman said, “The guilt of an accessory
before the fact springs from his contemplation of one of a number of crimes
and to intentionally lend his assistance for the crime to be committed.”
A further ratio is that knowledge of the actual offence committed need not
be shown before a person can be convicted of aiding and abetting. All that is
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important is that he knew the type of offences to be committed or the

essential matters constituting the offence.
Limitations of Liability of an Accessory Before the Fact
1) He is not liable when the principal deliberately commits an offence of the

type contemplated but upon a different subject. A classic example was what
happened in the case of Saunders v. Archer; Archer, on being consulted by
Saunders, advised him to get rid of his willful wife by inserting poison into an
apple. He did so but she halved over the apple and handed it to their child,
dearly beloved of Saunders. On the basis that he gave the poisoned apple
with the intent to kill, Saunders was convicted. Archer was not found guilty
as an accessory to the murder on the basis that it was neither an offence
which he advised or ascended to because the poisoning of the daughter was
a distinct thing of that which he advised.
4) Accessory After the Fact
An accessory after the fact is a person who, knowing that a felony has been
committed, subsequently shelters or relieves one of the felons. E.g. so as to
evade justice, concealing a fugitive murderer or supplying a means of escape.
Such is an accessory after the fact. There must be mens rea - knowledge of
intention to assist a felon. Active acceptance is necessary. Merely
abstaining, however willfully, from arresting a known felon and on leaving him
to make his escape is not sufficient.
Note also that since it is a wife’s duty to aid her husband and to keep his
secret, this would not render that woman an accessory after the fact. For
example, if the husband has committed an offence and she hides him from
justice, she cannot be an accessory after the fact to murder.
However, a husband enjoys no similar exception if he assists his wife or

causes her escape from justice; he will still be an accessory of the felony.
But, if the wife, acting alone, receives and assists a felon, not to the
knowledge of her husband, then she would be an accessory after the fact.
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Defences
Withdrawal - In R v. Becerra, it was established that an accomplice may

have a defence if he withdraws from the criminal conduct before the
intended crime is committed but he will still, nonetheless, attract liability
for incitement or ________.
In this case, Becerra shouted “let’s go” and ran away when he and two others
were surprised by the occupier in a burglary. In his absence, one of the
burglars, using a knife Becerra provided, killed the occupier. Becerra was
convicted of murder. His defence that he had withdrawn from the
enterprise was rejected as it was a mere change of mind and therefore
insufficient. If he had alerted the police, then that would have qualified as a
genuine withdrawal.
In R v. Grundy, Grundy, two weeks before a burglary was due to be

committed, tried to dissuade the others to withdraw from the burglary. The
defence of withdrawal was withdrawn from the jury. However, the CA held
that the trial judge should have left it to the jury to decide.
Although specific crimes may have special defences of their own, for
example, provocation for a charge of murder, there are several offences,
however, which attract general defences.
Insanity (Insane Automatism) - This defence is concerned with the

accused’s mental state (mens rea) at the time of the commission of the
offence. The law relating to the defence of insanity is to be found in rules
set out in M’naghten’s Case; this case delineates the circumstances under
which an accused will be held not to have been legally responsible for his
conduct. The so-called M’naghten Rules were derived from this famous case.
In this case, Daniel M’naghten was found to be insane and was acquitted of
murder. He had been charged with murdering the private secretary of Prime
Minister Robert Peel. He was found guilty and sent to a hospital but there
was a public outcry demanding that he should have been found guilty of
murder. The case was debated in the HL and the HL sought the opinion of
the judges on the legal principles relating to insanity.
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There was a joint answer given to their questions given by 14 of the judges
which are not technically binding as precedents; they were an opinion.
Nonetheless, these M’naghten Rules have been treated as being
authoritative ever since. In Sierra Leone, they are still looked to in order to
determine liability in insanity cases.
The principles stated -
1) Everyone is presumed to be sane and possessing of sufficient degree of

reason to be responsible for their crimes until the contrary is proved.
2) To establish a defence of insanity, it must be proved that at the time of
committing the act, the accused was laboring under such a defect of reason
from a disease of the mind as (a) not to know the nature and quality of the
act he was doing or (b) if he did know it, he did not know that what he was
doing was wrong.
The first principle refers to the presumption of sanity. If the accused is to

raise the defence of insanity, then the burden of proving is procedural; it is
on the accused.
Generally, it is for the prosecution to prove the guilt of the accused beyond
reasonable doubt and to disprove any defence he may raise; Woolmington v.
DPP. In the case of insanity, it is not sufficient for the accused to raise the
defence; he bears the burden of proving it but he is not required to prove
beyond reasonable doubt. All he need do is to do so on a balance of
probabilities.
Constituents of the Defence of Insanity
There are three (3) conditions to be satisfied in any case where a defence
of insanity is raised -
1) The accused was suffering from a disease of the mind.

2) This gave rise to a defect of reason.
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3) As a result, he either did not know the nature and quality of his act or he
did not know that what he was doing was wrong.
Disease of the Mind - This is a legal term and not a medical term. Disease
of the mind was amply addressed in R v. Sullivan; disease of the mind is to
be understood in the ordinary sense of the word; the mental faculties of
reason, memory and understanding. Any condition which impairs these mental
faculties so as to produce “a defect of reason” is sufficient.
Such conditions may be organic in origin; R v. Kemp; Devlin J thought that

the object of inclusion of the words “disease of the mind” was to exclude
“defects of reason caused simply by brutish stupidity without rational
power”. Arteriosclerosis, a tumor on the brain, epilepsy, diabetes, all physical
diseases, may amount in law to a disease of the mind if they produce the
relevant malfunction.
Disease of the mind may be functional as in a mental illness such as paranoia.

Whatever the case, disease of the mind, must arise from an internal
physiological or psychological cause and not from external factors such as a
blow on the head.
It is also irrelevant that the impairment is permanent, or transient and

intermittent. It is immaterial whether it’s curable or incurable. So, any
condition producing these effects on the mind can and will be classified as a
disease of the mind. In Bratty v. A-G for Northern Ireland, Lord Denning
put forward his own view of a disease of the mind by saying, “It seems to me
that any mental disorder which has manifested itself in violence and is prone
to recur is a disease of the mind. At any rate, it is the sort of disease for
which a person should be detained in hospital rather than be given an
unqualified acquittal.”
In R v. Quick, Quick was a diabetic who committed an assault when
suffering from hyperglycaemia. That condition was caused by taking insulin
and failing to eat, which gave rise to a deficiency of blood sugar causing the
appellant to be unaware of what he was doing.
In R v. Hennessy, Hennessy was a diabetic who fell into a hyperglycaemic

coma caused by a high blood sugar content and so does not know what he was
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doing. Diabetes, here, was held to be a disease of the body, giving rise to
insanity, in so much as hyperglycaemia caused by an inherent defect and not
connected by insulin was a disease of the mind causing a malfunction of the
defendant’s mind.
The disease of the mind must have led to a defect of reason, meaning -
1) The accused did not appreciate the nature and quality of his act because
at the material time, he was an automaton (a person without conscious
appreciation of his conduct) or
2) The defect of reason was that he was incapable of knowing the
consequences of his actions or the circumstances in which that conduct
takes place or
3) He did not know that his conduct was wrong.
The Definition of ‘WRONG’
Do we mean morally or legally wrong or both? In the case of Codere, it was

held that ‘wrong’ meant morally wrong. This was following the definition of
‘wrong’ given in M’naghten’s Case; equally morally or legally wrong.
Then came the case of R v. Windle, which laid to rest the interpretation of
‘wrong’ in M’naghten’s Case. Here, ‘wrong’ meant legally wrong; contrary to
the law but in Sierra Leone, ‘wrong’ is interpreted as in M’naghten’s Case;
morally and legally wrong.
R v. Clarke was a case concerning absent-mindedness. A kleptomaniac stole

and claimed to be suffering from disease of the mind. The court held that
neither absent-mindedness nor irresistible impulse was a disease of the
mind. The court held that a defect of reason is more than a momentary
confusion or absent-mindedness. The M’naghten Rules were designed to
cover persons who have lost the power of reasoning and not those who retain
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such powers but in a moment of stress, find and use those powers in full.
The accused here claimed to have stolen as a result of depression.
In R v. Charlson, a father attacked his son with a hammer but was acquitted
of causing his son GBH, on the grounds of automatism when the evidence was
presented that he wasn’t in control of his actions due to the defect of a
brain tumor. In this case, Bratty J seems to have assumed that other
diseases such as epilepsy or cerebral tumor are not diseases of the mind
even when they manifest themselves in violence. The judge disagreed and
said that it seems that any mental disorder manifested in violence and which
is prone to recur, is a disease of the mind and, therefore, that amounts to
insanity; this is the sort of disease for which a person should be detained in
hospital rather than be acquitted.
The court seems to have adopted an internal/external cause so a lack of

consciousness due to an internal cause such as a psychiatric condition which
may likely recur would be one that would attract a defence of insanity.
A lack of consciousness due to an external cause such as a blow on the head
or drugs will constitute sane automatism.
In R v. Smith, the person was suffering from extreme pre-menstrual

tension.
In R v. Burgess, epilepsy and sleep-walking were deemed to be conditions

due to internal causes likely to recur and, therefore, constitute the defence
of insanity rather than automatism.
This marginal difference between insanity and non-insane automatism was

illustrated in R v. Quick and R v. Hennessy.
In R v. Quick, the accused was a psychiatric nurse who was acquitted of

causing GBH to a patient on the grounds of insanity. The defence of insanity
was upheld because the diabetic fit suffered was due to his not eating the
proper amount of food to counteract the insulin medication he had taken.
This fit was, therefore, due to the medication which constituted an external
cause.
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In R v. Hennessy, Hennessy was a diabetic who fell into a hyperglycaemic

coma caused by a high blood sugar content and so does not know what he was
doing. Diabetes, here, was held to be a disease of the body, giving rise to
insanity, in so much as hyperglycaemia caused by an inherent defect and not
connected by insulin was a disease of the mind causing a malfunction of the
defendant’s mind.
Non-Insane Automatism
Automatism may arise through -
1) A conversation.
2) Reflex movement of external origin.
3) Hypnotic influence - It is said that when a person commits a crime under
hypnotic influence, such conduct may be regarded as involuntary.
4) Somnambulism (Sleepwalking); R v. Sullivan, (1983).
5) Epilepsy - The HL has held twice that a person in that state of mind
(epilepsy) is considered to be insane; Bratty v. A-G for Northern Ireland
and R v. Sullivan; while recovering from an epileptic fit, Sullivan attacked a
friend and knocked him about the head and body. The HL said that Sullivan’s
conduct was caused by a disease of the mind.
Hyperglycemia Cases - Failing to combat diabetic coma; a deficiency of

blood sugar which can be caused when diabetics take insufficient food after
insulin. It can lead to impaired functioning of the central nervous system,
causing confusion, lack of coordination and aggressive behavior; R v. Quick.
In R v. Bailey, it was held that the defendants in these cases could not
truly be said to be acting voluntarily during a hyperglycemic episode. Such
persons should be entitled to be acquitted on the basis of non-insane
automatism. However, if the blackout was directly caused by the diabetes,
this would be treated as a disease of the mind.
Intoxication - Is it a Defence?
The issue of intoxication or drunkenness may arise where drunkenness

results in insanity. In such a case, even if the intoxication was voluntary, the
accused will have a defence based on insanity.
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In many of the cases where drunkenness is relevant, the defence, in

substance, is one of mistake and the evidence of drunkenness is
circumstantial evidence that the mistake was made.
In A-G for N. Ireland v. Gallagher, Lord Denning quoted two examples: (i)
where a nurse got so drunk at a christening that she put the baby on the
fire in mistake for a log of wood; and (ii) where a drunken man thought his
friend, lying in bed, was a theatrical dummy and stabbed him to death. Lord
Denning said there would be a defence to murder in each of these cases.
These mistakes were highly unreasonable and, in the case of a sober man, it
would be extremely difficult to persuade a jury that they were made. The
relevance of the evidence of drunkenness is simply that it makes these
mistakes much more credible.
In Beard’s Case, it was said that intoxication was a defence only if it

rendered D incapable of forming the mens rea.
1) Where the intoxication is Involuntary - Involuntary intoxication is a

defence negativing mens rea, irrespective of whether the mens rea is one of
specific or direct intent. But involuntary intoxication is not a defence if the
accused intended to and committed the offence. So, involuntary intoxication
may be taken into consideration only in terms of a mitigating context. If the
offence involves proof of specific intent and it is formed before the
accused got drunk and he thereafter drinks to sum up courage, then
drunkenness is no defence; A-G for N. Ireland v. Gallagher.
2) Where the crime involves a Specific Intent - In such cases of murder

or wounding with intent to cause GBH, then voluntary drunkenness may
negative a specific intent. See A-G for N. Ireland v. Gallagher, Beard’s
Case and DPP v. Majewski.
3) Where the crime involves a Specific Intent like murder but there’s an
alternative open to the jury like Manslaughter which involves a basic
intent. Or where the alleged offence involves a basic intent, then voluntary
drunkenness cannot afford a defence.
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Intoxication may result from the consumption of alcohol or other drugs such
as amphetamines, barbiturates, brown brown or other drugs which can cause
intoxication or drunkenness. In an intoxicated state, a person’s mental
powers or perception, reasoning, self-control, judgment and ability to
foresee consequences may all be impaired as well as his physical reactions
and coordination. Offences may be committed by a drunken person in which
case it is important to determine whether his intoxication contributed to his
criminal liability.
Is an accused person to be acquitted of a criminal offence because he was,

due to voluntary intoxication, deprived of the capacity to control his conduct
or to formulate the mens rea required for the offence? Unlike a person who
is insane, a voluntarily intoxicated person is responsible for his own impaired
condition. If the intoxicated offender is convicted of offences he
committed whilst in that state of mind, it is said that conviction and
punishment may deter or prevent him in future from becoming intoxicated
and re-offending.
So, where drink or drugs caused imprudence causing some person to do

things he normally would not do, in such cases, the person is still fully aware
of what he is doing, and accordingly, the law refuses to recognize such
partial intoxication as any form of defence or excuse. The law simply adopts
the view that drunken intent is nevertheless an intent; R v. Sheehan.
The criminal law is concerned with the rare cases where there’s been an
excessive consumption of alcohol or drugs such as to impair the ability to
foresee consequences. One can become so intoxicated that one loses his
awareness of what he is doing; Brennan v. H.M. Advocat; the accused
consumed between 20 and 25 pints of beer, a glass of sherry and a quantity
of LSD. He then stabbed his father to death with a knife. In such a state of
extreme intoxication, his claim that he was unaware of his actions becomes
plausible and clearly, at the time of stabbing his father, Brennan was not
responsible for his actions; he lacked control over his actions and possessed
no ability to reason and make choices. Indeed, all the hallmarks of
responsibility were missing. (i) But in another sense, Brennan was responsible
for the death of his father. (ii) He was responsible for getting himself so
intoxicated and it is stated that where a defendant voluntarily consumes
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drink or drugs, then he can be held responsible for anything that happens
while in such a state of voluntary intoxication. Liability is based on
negligence and the fact of voluntary intoxication supplies the negligent
element for such offences.
The logical correlation is that a person cannot be criminally liable if he takes

a drug that is not generally known to cause extreme intoxication. In the case
of R v. Hardie, it was held that valium and other sedatives or soporific
drugs must be treated differently from alcohol and other drugs that cause
unpredictability or aggression because the effect of valium and such drugs is
not generally known to produce aggressive conduct. But where the effects
are generally known, whether intoxication is or is not a defence, condition is
given as to whether -
1) Intoxication was voluntary intoxication.
2) Intoxication gave rise to mental abnormality (delirium tremens)
3) The Dutch courage cases; A-G for N. Ireland v. Gallagher.
4) Involuntary intoxication.
Voluntary Intoxication
In DPP v. Majewski, it was held that voluntary intoxication which deprives

the accused of the requisite mens rea can only be a defence to crimes of
specific intent. The ruling here makes it clear that we must be able to
identify those crimes the HL calls crimes of Specific Intent and those the
HL calls crimes of Basic Intent.
In general, those crimes in which at least as to one element require intention

and nothing else can be regarded as crimes of Specific Intent. For example,
S.18 of the Offences against the Person’s Act specifies wounding with intent
of causing GBH, burglary and attempt as offences of Specific Intent.
Crimes in which it is sufficient for the prosecution to prove either intention

or recklessness as to any of the elements of the actus reus can be regarded
as crimes of Basic Intent. For example, S.20 of the Offences against the
Person’s Act specifies malicious wounding as a crime of Basic Intent. See
also S.47 - occasioning actual bodily harm.
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There is no water tight rule; the categories are not closed. See statements
of their Lordships in DPP v. Majewski.
Self-induced automatism was examined in R v. Bailey; Bailey suffered from

diabetes for which he was receiving insulin. On the date in question, he
complained of feeling unwell. He drank a mixture of water and sugar without
eating. Shortly after that, he struck the victim on the head. Bailey claimed
the defence of non-insane automatism caused by hyperglycemia because of
the failure to eat food. It was held that since the attack was caused more
by the failure to eat rather than by diabetes itself, it was, therefore, not a
disease of the mind. The trial judge held that self-induced automatism was
no defence to wounding with intent or the alternate charge of unlawful
wounding. The CA took the view that since wounding with intent was an
offence of Specific Intent to which voluntary intoxication would be a
defence, then by analogy, the same must be true for self-induced
automatism and so the conviction was quashed.
The second situation where intoxication may or may not be a defence is with
the Dutch Courage Rule - Persons deliberately getting drunk for the sake of
summing up the courage to commit a crime. So, if a man decides to get drunk
and commit murder, his drunkenness is no defence to a charge of murder.
Lord Denning postulated this matter in A-G for N. Ireland v. Gallagher;
Gallagher formed the intention to kill his wife. He purchased a bottle of
whisky and a knife. He drank the whisky and killed his wife with the knife.
He raised the first defence of insanity and the second defence of
intoxication to show that at the material time, he was incapable of forming
the necessary specific intent. He was convicted. The conviction was quashed
in the Northern Ireland Criminal Court but the conviction was re-instituted
in the HL. Lord Denning said, “If a man whilst sane and sober, forms an
intention to kill and makes preparation for it, knowing it is the wrong thing to
do, and gets himself drunk so as to give himself “Dutch courage” to do the
killing and whilst drunk carries out his intention, he cannot rely on self-
induced drunkenness as a defence to a charge of murder, nor even as
reducing it to manslaughter. He cannot say that he got himself into such a
stupid state that he was incapable of an intent to kill. So also, when he is a
psychopath, he cannot by drinking rely on his self-induced defect of reason
as a defence of insanity. The wickedness of his mind before he got drunk is
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enough to condemn him, coupled with the act which he intended to do and did
do.”
1) Note that in the Dutch Courage Rule, the mens rea anti-dates the
actus reus and so it is an exception to the rule that mens rea and actus reus
should be contemporaneous.
2) It restricts the defence that evidence of intoxication can negative mens

rea in crimes of Specific Intent.
Involuntary Intoxication
Here, intoxication is not self-induced, as where for example someone laces

your ginger beer, either with some drug or with alcohol and you become
incapacitated. In DPP v. Majewski, the HL held that involuntary intention
negativing mens rea, whether or not of a Specific Intent or Basic Intent,
would be a defence even though it may not where the intoxication is
voluntary; this cancels the mens rea if it is of Specific Intent.
This exception may, perhaps, be justifiable because the plea of involuntary

intoxication is not open to the same abuse as one of voluntary intoxication
and, of course, the offence may not be the one likely to be respected. But
involuntary intoxication or drunkenness is not a defence if, for example, the
accused intended to commit the offence and did commit it; all that could be
taken into consideration is that his involuntary intoxication might be a
mitigation to punishment but not as to liability; R v. Kingston; in a HL
decision, it was considered that if the defendant did have the mens rea of
the crime, then intoxication cannot be a defence. So, the HL held that an
intoxicated intent was still an intent and the fact that the intoxication was
not voluntary made no difference.
The defendant was invited with a fifteen year old boy to a flat. Their drinks
were laced with drugs and when they were both intoxicated, the defendant
indecently assaulted the child. Kingston admitted that at the time of the
assault, he intended it but argued that he would not have committed the
offence if he had been sober. It was held that his intoxication was not a
defence.
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In Sumana v. R, (1970-71), the case of DPP v. Beard was cited.
Mistake as a Defence
This may be mistake of fact or of law. Mistake of law refers to mistake as

to the criminal and the civil law. Criminal law is a defence and the usual Latin
term is ignorantia juris nemenem excusat meaning “ignorance of the law is no
defence.” This was brought out in the case of R v. Bailey, (1980).
The exceptions to this rule are -

1) If the person is insane; Insanity. The insane person would not know that
what he was doing was wrong.
2) Children. Below age 7 are Doli Incapax; 7-14 are Doli Incapax but there is
a rebuttable presumption.
3) Principal in the 2nd degree or accessories. To make a person criminally
liable, it must be shown that he knew not only that the actus reus was done
but that what was done was an offence.
4) The Rule in Johnson v. Sargent & Sons; Subordinate Legislation comes
into effect when it has been promulgated. Before it was published, you can
raise the defence that you did not know; ignorance due to non-publication is
a defence.
Exceptions in Civil Law
A bona fide claim of right to property as stated in the Larceny Act 1916, as
well as a bona fide claim of right of property in S.51 of the
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Malicious Damage Act 1851 would give rise to a defence of

ignorance/mistake of the civil law and can be a defence in offences requiring
mens rea such as larceny or malicious damage.
In R v. Smith, (1974), upon the termination of his tenancy of a flat, Smith

had caused 130 Pounds worth of damage in removing wiring which he had
himself installed and boarded over. In law, the landlord became the owner of
the wiring and boarding as fixtures, and the trial judge directed the jury
that Smith could have no lawful excuse since he had, in law, no right to do as
he did. Smith’s appeal against conviction was allowed.
James LJ said, “Applying the ordinary principles of mens rea, the intention
and recklessness and the absence of lawful excuse required to constitute
the offence have reference to property belonging to another. It follows
that, in our judgment, no offence is committed under this section if a person
destroys or causes damage to property belonging to another if he does so in
the honest, though mistaken, belief that the property was his own, and
provided that the belief is honestly held, it is irrelevant to consider whether
or not it is justifiable belief.”
So, in these cases, it is not necessary that the mistake must be reasonable.
Claim of right does not refer to an actual legal right; all it means is belief,
even though it might be mistaken belief.
Mistake of Fact (Ignorancia Facit)
How do you distinguish between fact and law?
When is mistake of fact a defence in criminal law? The leading case that
answered that question was the case of DPP v. Morgan. This case
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established that a mistake of fact is a defence in the criminal law, where

the accused lacks the mens rea which the definition of the crime requires
with respect to particular elements of an offence. In short, mistake of fact
negativing mens rea in terms of either intention or recklessness is a defence
in the criminal law.
In DPP v. Morgan, Morgan invited three friends (also appellants) to have

sexual intercourse with his wife. He told them that she would put up a
struggle or resistance, a mere pretence on her part which increased her
sexual pleasure. They went on and had sex without her consent and were
convicted of rape. The husband, Morgan, was convicted of aiding and
abetting. They appealed to the HL on the issue of whether an honest though
unreasonable belief that the woman gave her consent was a defence. I.e. if
the appellants honestly believed that the woman was consenting, then the
prosecution fails to establish a case against them. The court said no. The HL
held that if the men honestly believed that the woman was consenting, they
lacked mens rea. But reasonableness or otherwise of their belief was
irrelevant ______________________________________________.
This case further established that where an offence is so defined that

mens rea is an element of the offence, a defence of mistake of fact may
negative/cancel the mens rea of the offence, whether reasonable or not. So,
this case says that there is no rule of law that the mistake must be a
reasonable mistake. Lord Hailsham said, “Once one has accepted what seems
to be abundantly clear, that the prohibited act in rape is non-consentual
sexual intercourse and that the guilty state of mind is an intention to
commit it, it seems to me to follow as a matter of fact or inexorable logic,
that there is no room either for a defence of honest belief or mistake or of
a defence of honest and reasonable mistake. Either the prosecution proves
its case or it does not.”
Before this case, it was said that a mistake of fact is a defence only if it
was reasonable. This has now been refuted by DPP v. Morgan. Though the
case involves the common law offence of rape, in which mens rea was an
intention to have intercourse with a woman without her consent, its
importance goes far beyond the law of rape.
See Albert v. Lavine, (1982).
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See R v. Kimber, (1983).
These cases make it quite clear that the effect of the decision in
DPP v. Morgan is not confined to the common law offence of rape.
The case of R v. Kimber involved the statutory offence of indecent assault

on a woman. The accused alleged that the woman had consented so the CA
held that the actus reus of the offence was the use of personal violence to a
woman without her consent and the absence of consent, where it was
relevant to liability, was an element of the actus reus of an offence against
the person or sexual offence.
In Albert v. Lavine, the appellant caused a disturbance while trying to

board a bus. A police officer tried to restrain him and he asked the police
officer for a warrant or ID card but the officer was unable to produce one.
The appellant was charged and convicted of assaulting a police constable,
contrary to the English Police Act 1954. He appealed, contending that his
honest belief that the man was not a police officer was a defence to the
charge. The appeal was dismissed.
Where the law Does Not require Mens Rea
This arises, for example, in strict liability offences where the presumption
of mens rea is ruled out as well as in bigamy cases. In these cases, where it’s
an offence of strict liability, for the defence of mistake of fact to succeed,
the mistake must be a reasonable mistake in all the circumstances. The
mistaken belief needs to be honestly held and based on reasonable grounds.
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For strict liability, see R v. Prince, (1875).
For bigamy, it was held in R v. Tolson, that the defence of mistake of fact
can only succeed if the mistake of fact is reasonable.
Offences where the mens rea is a state of mind - A person who acts under a
mistaken belief in order to accord himself of the defence of mistake of
fact, then that mistake of fact must be reasonable.
Should recklessness be a requirement for the defence of mistake of fact?
R v. Gladstone-Williams, (1984) - Mistake negativing mens rea.
Duress
There are two types of duress -
1) Duress per minas (by threats).

2) Duress of circumstance.
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1) Duress per minas (by threats) - Duress per minas arises where, for
instance, A (the duressor) orders D (the defendant) to commit a specified
criminal offence like murder, the threat being that if D fails to do so, A will
kill or cause him GBH.
A key factor of duress per minas is that the duressor consummates the
crime the defendant must commit in order to avoid the threat being carried
out. Whereas in duress of circumstance, the threat need not come from a
human being. For example, the defendant may break out of a prison cell
because a fire is raging in the prison. Alternatively, D may drive his car at a
high speed the wrong way down a one way street because, for example, he
needs to escape from a swarm of bees. In neither of these cases is there
a directive to the defendant that he has to commit the crime.
In duress per minas, the threat is not only confined to the person being
threatened but any other person, particularly his family and, here, the
criminal law recognizes that the criminal has been put in a terrible dilemma.
Duress per minas arises where the accused is forced by someone else to
break the law under a direct threat of death or serious personal injury to
himself or someone else.
How to determine if the situation has given rise to Duress per Minas
The test set in R v. Graham is referred to as the subjective-objective test.

Graham was a homosexual who lived with his wife and his lover, Mr. King. In
the past, King had behaved violently, tipping Graham and his wife off the
settee when he found them cuddling. Threatened by King, Graham strangled
his wife with an electric flex. The CA did not consider duress existed as the
threats were not sufficiently grave.
To determine whether the threats were sufficiently grave, the CA applied
two tests; the test of duress. Before R v. Graham, the criterion was purely
subjective and this was rejected by the court. In this case, the test laid
down was whether the defendant (subjective) was or might have been
impelled to act as he did because as a result of what he reasonably believed
the partner had said or done, the defendant had good cause to fear that if
he did not so act, the partner would kill him. (If that was to be added, it
would cause him serious physical injury). (ii) If so, whether the prosecution
had made the jury sure (objective) that a sober person of reasonable
_______ would not have responded to whatever he reasonably believed the
partner said or did in taking part in the killing. The fact that the defendant’s
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will has been eroded by the voluntary consumption of drink or drugs or both
was irrelevant.
The Seriousness of the Threat
After this case, in 1982, came other cases applying principles (subjective
part/seriousness of the threats) of R v. Graham. This was canvassed in the
case of R v. Valderrama-Vega; here, the seriousness of the threat was
examined; whether the threats would give rise to a defence. The accused
was charged with taking part in the illegal importation of cocaine from
Columbia. He argued that he was acting under duress because a mafia-type
organization in Columbia had threatened to kill him or injure him and his
family and to expose his homosexuality. Furthermore, he was under financial
pressure, facing ruin if he didn’t take part in the smuggling. The court held
that only the threats of death or personal injury could constitute duress,
although the court said that it was not necessary that these threats should
be the only reasons for the accused’s behavior. Therefore, this was not
sufficient for a defence.
The Immediacy of the Threat
In R v. Gill, the defendant was told to steal his employer’s lorry and
threatened with violence if he failed to do so. At his trial, the court stated
obiter, for theft, that he probably would not have been able to rely on the
defence of duress. Between the time of the threat and his carrying on the
crime, he had the opportunity to inform the police of the threat. So, the
threat was not sufficiently immediate to justify his conduct.
In Hudson v. Taylor, the court took a more lenient approach. It was said in
this case, “…that a threat could be counted as immediate if, at the time of
the crime, it was operating on the accused’s mind even though the threat
could not have been carried out there and then.” This was a case of perjury
and it was held that it was essential that the threat must be “imminent” in
the sense that it is effective to neutralize the will of the accused at that
particular time. Where there is no opportunity for delaying tactics and the
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person threatened must decide if he is to commit the criminal act or not,

the existence at that moment of threats sufficient to destroy his will ought
to provide him with a defence even though the threatened injury may not
follow instantly but after an interval.
The defendants were convicted of perjury for lying in giving evidence at a
wounding trial. The defence was that they had been threatened that if they
told on Rice in court, they would be gutted and cut up. The appeal was
successful because the ineffectiveness of police protection in this case
meant that the accused’s failure to seek police protection did not invalidate
the defence and, therefore, the defence was sustained.
Self-Induced Duress
In R v. Sharpe, it was held that the defence was not available to persons
belonging to a terrorist organization.
In R v. Ali, Ali had become a heroin addict during a visit to Pakistan. Upon
his return to England, a man named Colin Banks supplied him with heroin. The
arrangement was that Ali could use some of the heroin himself in return for
selling and giving back the proceeds to one Mr. X. The amount of heroin Ali
needed increased. He became indebted to Mr. X after using all of the heroin.
Mr. X caught up with him and instructed him to go and rob a bank or else he
would be killed. He robbed the bank and was convicted. The CA found that at
his trial for armed robbery, he couldn’t rely on the defence of duress as he
had voluntarily become involved in a criminal enterprise with a man he knew
was of a violent disposition.
The Objective Test
R v. Graham
R v. Hurst, (1995)
R v. Bowen, (1996)
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R v. Flatt, (1996)
In R v. Bowen, the defendant, Bowen, was accused of obtaining services by

deception, having dishonestly obtained electrical goods on rent. He argued
that he had been acting under duress as two men had threatened to attack
him or his family with petrol bombs if he did not obtain the goods for them.
This defence was rejected.
Exceptions to this Defence
Duress applies to most crimes and so the exception to this will be found in
the following cases -
The case of R v. Abbott confirmed the long-held view that duress could not
be used as a defence to murder by a principle in the 1 st degree as that
defence is available to the principle in the 2nd degree (aider and abettor). In
this case, Abbott took active part in the brutal killing of a young woman
under threats to himself and his mother.
In this case, there was a descent in judgment by two judges, that a principle
in the 2nd degree could never plead duress whereas a principle in the 1 st
degree could. This was to import into the common law a probability of grave
injustice.
In DPP v. Lynch, the HL held that where a person under duress in the form
of real threats either expressly made or implied by conduct to kill him or
cause serious physical injury to him, who had hijacked a car and then drove
three terrorists away, he could raise duress when charged with murder as a
principle in the 2nd degree and that it could excuse guilt.
What was decided and confirmed in R v. Abbott, that duress was not
available as a defence to a principle in the 1 st degree but was indeed a
defence to a principle in the 2nd degree, was finally decided in the case of
R v. Howe; the defence of duress was neither available to a principle in the
1st degree nor to a principle in the 2nd degree.
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What was unanswered was whether duress was a defence to attempted

murder but this was finally settled in R v. Gotts by a majority of three to
two.
Duress is not a defence to damage to property; the threat must be to your

life; R v. M’Growther; a prisoner was accused of high treason and he raised
the defence of duress in that he had been forced to join the rebel forces in
the 1745 rebellion in England; they’d burned his house and laid waste to all of
his possessions. Lee CJ observed that the fear of having homes burned or
goods spoiled is no excuse in the eyes of the law for joining and marching
with rebels. The only force that doth excuse is the force to you the person
and present fear of death. He was convicted but not executed.
In R v. Hurst, expert evidence was inadmissible on the issue that the

defendant had suffered sexual abuse as a child, resulting in a lack of
firmness in his personality although not amounting to psychiatric disorder.
2) Duress of Circumstance
R v. Miller, (1986).
R v. Martin, (1989).
R v. Pommell, (1995).
In summary, the present position is that of duress per minas and duress of
circumstance. For the defence of duress per minas to be operative, the
defendant must have committed the offence only because of the threat of
death or serious personal injury; Lynch. The threat must be
(i) Imminent, in the sense that the accused had no reasonable opportunity to
render that threat defective by seeking police protection etc.
(ii) But not necessarily to the accused himself but also to his relations.
In R v. Hurley, the Supreme Court of Victoria held that threats to kill or
seriously injure the accused’s common law wife could amount to duress. It
could be extended to include threats to kill the spouse of the accused,
children and other closely related persons.
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(iii) Probably the gravity of the threat required must equate to the enormity
of the offence in question.
(iv) This defence applies to all crimes except to damage to property and
does not apply to principle in the 1st degree and principle in the 2nd degree as
well as for attempted murder; R v. Gotts.
The test is both subjective and objective; R v. Graham.
Necessity
The case of R v. Dudley & Stephens is often cited as an authority on

necessity. If decided today, it may more appropriately be considered to be a
case of duress of circumstances. The decision in this case establishes that
the criminal law would not permit an accused to take the life of another in
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order to save their own. In this case, the defendants were sailors cast
adrift in a boat. The cabin boy fell ill and was near death. The defendants,
fearing that they would starve to death, killed the cabin boy and ate some of
his flesh. They sought to justify their actions by pointing out that the cabin
boy was likely to die in any event and it was necessary that they survived.
The court rejected this, saying that the criminal law did not allow a defence
that condoned a defendant to value his own life over that of an innocent
person. It was observed by one of the judges that the defendants’ decision
“…if accepted, would have led to the court having to measure the comparable
value of life.”
The defence of necessity essentially applies to situations in which the

accused is faced with a choice of committing a crime in breaking the law or
allowing himself or someone else to suffer. Duress may be seen as a specific
form of the defence of necessity. The reasoning put forward by the judges
in this case can be based on the following -
1) There was no authority for allowing necessity as a defence to killing an

innocent person.
2) To allow a defence to such a serious crime would stray too far from
morality.
3) The defence was a difficult one due to the difficulty of measuring one
life against another.
4) By what measure or yardstick is the comparative value of lives to be
measured? Is it to be based on strength or intellect? In this case, there was
no moral reason why it was the cabin boy who was selected to die.
Some commentators have suggested that the defence might have been
available if the choice of the victim was made in a fair way such as, for
instance, by drawing lots.
A leading case which laid down restrictions on the application of necessity as

a defence was London Borough Council v. Williams; Lord Chief Justice
Edmund Davies said that “…although necessity in certain cases affords a
defence in an urgent situation, it is not a defence to murder or theft. So, if
someone steals as the only way to relieve hunger, could he successfully plead
necessity? The answer is no. If in Ethiopia, one could say that stealing could
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be used as a defence, having a reasonable explanation, but there must be a

balance.”
In R v. Richards, Lord Goff said that there was no doubt that a defence of
necessity existed even though its scope has not been established.
In R v. Dudley & Stephens, it was no defence that the killing of the cabin
boy was necessary for survival. The English court also disapproved, obiter, of
a ruling in an American case of US v. Holmes, that the drawing of lots in
similar circumstances would legalise a killing. Holmes, a member of a crew of
a wrecked ship, was cast adrift in an overcrowded boat. In order to prevent
the boat sinking, the mate gave orders to throw the male passengers
overboard and Holmes assisted in the throwing over of sixteen (16) men. No
doubt, if his act was criminal at all, it was murder; but a grand jury refused
to indict him for murder and so he was charged with manslaughter. The
judge directed that the law was that passengers must be preferred to
seamen; only enough seamen to navigate the boat ought to have been saved;
and the passengers whom necessity requires to be cast over must be chosen
by lot. As this had not been done (none of the officers or crew went down
with the ship) the jury found him guilty.
Arguably, Dudley & Stephens is distinguishable if there is no problem of

selection. D, a mountaineer who cuts a rope seconds before he would be
dragged over a precipice by E, his falling companion, surely commits no
offence. There is no question of choosing between D and E. E is going to die
in a matter of seconds anyway. The question is whether he alone should die a
few seconds earlier, or whether they should both die seconds later.
In Richards, Lord Goff said, “That there exists a defence of necessity at

common law, which may in some circumstances be invoked to justify what
would otherwise be a trespass to land, is not in doubt. But the scope of the
defence is by no means clear.”
He found it necessary to decide the important question raised in that case,
whether the defence could justify forcible entry (which would otherwise be
a crime) into the private premises of another in the bona fide, but mistaken,
belief that there exists an emergency on the premises by reason of the
presence there of a person who has suffered injury and who may require
urgent attention.
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The defence of Necessity has been recognized in three (3) types of cases -
1) Where the criminal act is done in the public interest. For example, where
there is a risk of fire spreading and you destroy the intermediate property
to prevent the fire spreading.
In Johnson v. Phillips, it was held that a constable may direct other persons
to disobey traffic regulations if that is reasonably necessary for the
protection of life and property.
2) The defence of Necessity is also recognized and applicable where a

person commits a criminal act to protect and preserve himself and property.
For example, jail-breaking if there’s a fire in the prison.
3) Another situation is assisting or conducting the criminal conduct without

the person’s consent. These are controversial cases.
In F v. West Berkshire Health Authority, it was held that it was lawful to
carry out a sterilization operation on a woman who lacked the mental
capacity to consent because, otherwise, there would be grave risk of her
becoming pregnant which would be disastrous from a psychiatric point of
view. Lord Goff founded his judgment on necessity.
In the case of Mrs. S, Mrs. S was pregnant and her doctor had advised that
a cesarean operation was necessary to save the life of her unborn child.
Although Mrs. S was mentally competent to give consent, she refused to
allow the operation because it was against her religion. She was supported by
her husband. After hearing medical evidence that both mother and child
would die without the operation being carried out quickly, the HL granted
the declaration that it was lawful for surgeons to carry out the operation
without the woman’s consent. Unfortunately, the child died but it was all
done in the public interest.
These cases would, however, involve at most a slight extension of duress of

circumstances - comparable to MacNaghten J’s interpretation of “preserving
the life of the mother” to include preserving her from becoming “a physical
or mental wreck in Bourne, a case which must now be regarded as one of
duress of circumstances.
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The case of Gillick v. West Norfolk A.H.A is to be cross-referenced with

R v. Bourne, where a surgeon specialist performed an abortion on a 14 year
old rape victim in good faith for the purpose only of preserving the life of
the mother.
In Gillick v. West Norfolk A.H.A, a doctor prescribed contraceptives for a

girl under the age of 16 and was charged with the offence of aiding and
abetting the offence of unlawful sexual intercourse with a man. The doctor
was charged as an accessory before the fact. Would said doctor be guilty of
aiding and abetting the offence? Provided that certain circumstances are
shown that the contraceptive advice or treatment given in his clinical
judgment was for the maintenance or restoration of her health, then it will
fall under the defence of necessity. It would succeed if his intention was not
to facilitate or encourage this young girl from having unlawful sexual
intercourse.
In the Supreme Court of Canada, the common law defence of necessity has
been recognized.
R v. Dudley & Stephens rejected necessity as a defence to murder.

However, the prohibition on the taking of another’s life on the grounds of
necessity is not absolute. For example, killing in self defence is an obvious
exception; justifiable homicide.
The defence of necessity may provide a defence where the defendant’s will
to resist is not overborne by threats of death or GBH, but the person simply
chooses a course of action involving the lesser of two evils although it does
result in the death of an innocent person. Such a defence was provided by
the CA in Re A (Children-Conjoined Twins), a case about surgical
separation. Doctors sought the court’s guidance on the legality of operating
to separate conjoined twins. The evidence was that if no operation were
carried out, then both twins would die within a matter of weeks. If the
operation were carried out, it would immediately cause the death of the
weaker twin. So, the then CJ, Robert Walker, saw the case as one where the
principles of necessity would apply so as to absolve the surgeons performing
the operation from liability for murder because they were faced with
conflicting legal duties. The conflict here was between the duty of keeping
one of the twins alive and the duty not to cause the death of the other. So,
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the court concluded that the defence of necessity would protect the
surgeons from any liability for murder.
If these three (3) conditions are fulfilled, then the defence of necessity
would avail the surgeons of a defence -
1) That the operation was needed to avoid inevitable and irreparable evil; the
death of the twins.
2) That the operation was no more than was reasonably necessary to save
the life of the stronger twin.
3) That the evil inflicted (the death of the weaker twin) was not
disproportionate to the evil avoided (the death of both twins).
Could the doctors rely on duress of circumstances?

Could the doctors have relied on the defence of self-defence?
Is this not a case of the doctors intervening to protect the stronger twin
from the weaker twin?
In Buckoke v. Greater London Council, Lord Denning said, obiter, “A driver

of a fire engine with ladders approaches the traffic lights. He sees 200
yards down the road a blazing house with a man at an upstairs window in
extreme peril. The road is clear in all directions. At that moment, the lights
turn red. Is the driver to wait for 60 seconds or more, for the lights to turn
green? If the driver waits for that time, the man’s life will be lost.” Even
though the driver would commit an offence against the Road Traffic
Regulations if he crossed the red light, Lord Denning added that the
hypothetical driver “should not be prosecuted. He should be congratulated.”
Paradigm examples - Where necessity would avail the accused of a defence

depending on the circumstances -
A & B swimming in the sea after a ship wreck get hold of a plank which is not
large enough to support them both. A pushes off B who is drowned or vice
versa. A/B - would either be freed from criminal liability by raising the
defence of necessity? See R v. Dudley & Stephens.
If you are roped to a climber who has fallen and neither of you can rectify
the situation and then you cut off the rope with the result that the other
man falls to his death; would necessity avail you a defence?
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Self Defence
This is a misnomer as it is more of the nature of a Private Defence. It is so

because it covers not only protection of one’s self but also what is done in
defence of one’s property and also others.
An individual may have a defence to the use of reasonable and necessary

force against another at common law if -
1) Its use is in self defence.
2) In the defence of others.
3) In the defence of one’s property.
In England, the defence is now statutory under S.3 (1) of the

Criminal Law Act 1967. So, by virtue of this, in England, necessary and
reasonable force may be used
(i) In the prevention of crime, and;
(ii) In effecting or assisting in the lawful arrest of offenders or of “persons
unlawfully at large”.
Whether the defensive force used is necessary and reasonable involves so

many factors. Four (4) main factors to be considered are -
1) Was any defensive action Necessary? I.e. it brings out the issue as to
whether one is under a duty to retreat, if possible, when one is faced with
aggressive force. Would his failure to retreat mean that defensive force
was unnecessary? It has been held that while a person is not under a positive
duty always to retreat, nonetheless, they must demonstrate that they do
not want to fight back, and if you fail to demonstrate this, your failure to
retreat will be a further consideration in determining whether defensive
action was reasonable under the circumstances. See both R v. Julien and
R v. McInnes.
2) The Immediacy of the Threat - It is often stated that the anticipated

attack must be reasonably imminent and that one is not justified in using
force to repel violence that would occur in the future. This was the general
law. Recently, however, a development has been that the courts have held
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that anticipatory self defence can be acceptable in certain circumstances.

For instance, in A-G’s Reference (No 2 of 1983), the defendant’s shop had
been damaged and looted in a riot. Fearing further attacks, he manufactured
ten petrol bombs to protect himself and his property but the anticipated
attacks never materialized. He was charged with possessing an explosive
substance contrary to S.4 of the Explosive Substances Act 1893. Convicted
in the court below, the CA said that his actions were justified on the
grounds of self defence.
3) The Nature and Degree of the force used.
4) The Relative Strength of the parties and the Number of persons involved.
The old retreat rule is applicable in Sierra Leone. The person attacked must
retreat as far as he can before resorting to force. In R v. Julien, it was
held that the defendant was not under a duty to retreat in the full sense.
Lord Widgery said, “It is not the law that a person threatened must take to
his heels and run in the dramatic way suggested by council for the appellant.
But what is necessary is that he should demonstrate, by his action, that he
does not want to fight. He must demonstrate that he is prepared to
temporize and disengage and perhaps to make some physical withdrawal; and
that that is necessary perhaps as a feature of the justification of self
defence, irrespective of whether the charge is homicide or something less
than homicide.”
In this case, Julien was convicted of assault occasioning actual bodily harm.
He was involved in a quarrel with Delco and he threw a milk bottle at Delco,
injuring his head. He admitted that he did it but in self defence because, at
the time, Delco was armed with a chopper. The jury was directed that
before using force in self defence, there was an obligation to retreat. The
higher court said that the jury was misdirected on the law. The appeal was
allowed and the conviction was quashed.
In R v. McInnes, it was held that the matter of retreat is not absolute but
simply a factor in deciding whether the force used was reasonable under the
circumstances. What is reasonable force is a question of fact and not of law.
I.e. the court again rejected that there was an absolute duty to retreat;
this was affirmed in the ratio as set out in the Julien case which stands as
the modern law on the subject matter of retreat.
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In Palmer v. R, it was said that self defence is such as is reasonably

understood by the jury; it is a straight forward conception which involves no
abstract legal thought. It is both good law and good sense that a man who is
attacked may defend himself but may only do what is reasonably necessary.
In 1988, Lord Griffiths in Beckford v. R stated the principles related to

private defence. He said, “Self defence is a justification recognized by the
common law. It is a general defence which applies not only to offences of
violence but is also available to the accused where, for example, he
threatens to use force.”
The defence covers not only the defence of one’s self but of others. A good
example of the defence of others is found in R v. Rose.
Beckford v. R is of importance because it makes provision for pre-emptive

action. “A man about to be attacked does not have to wait for his assailant
to strike the first blow or fire the first shot; circumstances may justify a
pre-emptive strike.”
Consider this with reference to A-G’s Reference (No 2 of 1983), dealing
with Anticipatory Self Defence.
Local self defence cases include Kargbo v. R and Bah v. R.
Consent
Is Consent a Defence? It may be a defence but not to all crimes.

In R v. Donovan, Donovan, the appellant, was convicted upon an indictment
charging him with indecent assault and common assault on Nora Eileen
Harrison. It appeared that the appellant was addicted to a form of sexual
perversion and there was talk between Donovan and Nora which expressed
Nora’s willingness to subject herself to the kind of conduct to which
Donovan was addicted. They met by appointment and his first remarks were,
“Where would you like to have your spanking, in Hyde Park or in my garage?”
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they then went to his garage. There was medical evidence that there were
seven or eight red marks upon her body, her buttocks and her frontage. So,
the opinion of the doctor was that the marks indicated that she had
suffered fairly severe beating. The appellant said that throughout Nora did
not resist and that she enjoyed it which meant that she consented. He was,
therefore, admitting that he committed the offence but his defence was
consent. The court, however, disagreed.
The question is, therefore, When can Consent be a Defence? Certain

criterion were laid down -
1) The reality of the consent.

2) The Nature and Degree of the harm to which the consent can be given.
3) The Rationale of consent as a defence.
1) The Reality of the Consent - It must be real; it must not have been
induced by duress or by fraud. For instance, the woman who submits to anal
intercourse rather than suffer serious physical injury would not have been
giving her “real” consent.
The consent must be real in the sense that the person alleged to have
consented must be capable of giving consent; capacity. Age and infirmity
would be taken into consideration. In R v. Howard, it was considered that
the alleged consent of a six (6) year old to attempted sexual intercourse
with the defendant was not real consent. It was held that this girl of six was
incapable of giving “real” consent.
2) The Nature and Degree of the harm to which the consent can be
given - See R v. Donovan.
In R v. Coney, Justice Hennessy said, “The principle as to consent seems to
me to be this; when one person is indicted for inflicting personal injury upon
another, the consent of the person who sustains the injury is no defence to
the person who inflicts the injury. If the injury is of such a nature or is
inflicted under such circumstances that its infliction is injurious to the
public as well as to the person himself who is injured, then of course, it
cannot be accepted as a defence.”
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Note also that there are times when because of certain activities, you may
have consent as a defence. For instance, in lawful sports like football or
rugby, any participant injured in the course of sporting activities, in the
circumstance, consent can be a defence. However, it is not a defence for
malicious and willful bodily injury.
There may also be a defence of consent in other social activities or

movements such as being jostled in a crowded bus or poda-poda.
However, consent is only deemed to have been given to a reasonable use of

force in such situations where there is aggressive or excessive use of force
and this applies even if one is in a queue to board a bus etc.
Even in cases of euthanasia or mercy killing, it is clear that consent cannot

be a defence and, therefore, euthanasia is an offence.
In R v. Cato, consent was raised as a defence but was rejected in a case

where there’s a likely danger to the life of the victim.
In R v. Leach, the victim organized his own crucifixion. The defendants

nailed him to a wooden cross; his arms had been pierced. The defendants
were charged with unlawful wounding and raised the defence of consent.
This was rejected as their activity was considered to have no socially
redeeming feature.
3) The Rationale of consent as a defence - Public policy could be the basis

of excluding consent as a defence in certain cases. Refer to the writings of
John Stuart Mill.
Infancy as a Defence to Crime
The provision classifies infants into young persons and children. A child is a
person under age 14. A young person means “a person who is 14 years of age
or upwards and under the age of 17 years. Under S.19, it says that a person
17 years or upwards is not a child or a young person.
For criminal responsibility, a child under age 7 is said to be Doli Incapax;

this prescription derives from recognition of the maturity of children who
would not have fully developed understanding of what is right and wrong, nor
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the ability to appreciate the consequences of their acts fully. So, if a child
is charged with an offence and it is established that he is under 7 years of
age at the time the alleged offence was committed, then the case against
him will be disposed without any inquiry into whether he understood what he
was doing.
So, it has been said that “It seems to be the case that precocious children
under 7 who are prone to breaking the law would escape criminal liability
because the presumption is irrebuttable. So, a consequence of the doli
incapax principle is that not only is the child not guilty of the crime, but the
child has not committed the crime. However, if the offence was instigated
or encouraged by another person (an adult), that person would be the
principal acting through an innocent agent.
Where a child is 7 years of age or over, but under age 14 at the time of the
alleged offence, there is a common law presumption that he is incapable of
committing the offence but in this case, that presumption is not conclusive.
The presumption that the child is doli incapax can be rebutted by proof that
the child has a mischievous disposition; that he knew that the act was
gravely wrong or seriously wrong. This rebuttable presumption of doli
incapax was affirmed by the HL recently in C (a minor) v. DPP, (1918).
Before this, there were a series of older cases such as R v. Gorrie, a case
of manslaughter where the defendant, a boy of 13, was acquitted. He had
wounded another who died as a result. He was acquitted because the
presumption of doli incapax could not be rebutted.
The case of B v. R involved a child of 8 charged with burglary. Although

there was the rebuttable presumption of doli incapax, he made a full
confession and was convicted. His appeal was dismissed.
The rebuttable presumption of children over 7 but under 14 -

The prosecution must prove that the child knew that what he was doing was
gravely wrong. Here, you have “confession statements” or where he runs
away to hide. They could both be used to rebut the presumption.
Another concept which is still the law is that boys under 14 are irrebuttably
presumed of committing any sexual potency and so could not be convicted as
perpetrators or as principal in the 1st degree. So, they cannot be guilty of
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rape or assault with intent to commit these crimes as principal offenders.

But they can, however, be charged as accomplices to rape; aiding and
abetting - Principal in the 2nd degree or Accessory before the fact;
R v. Aldershaw.
They also cannot be charged as principal offender to indecent assault;

R v. Williams.
Persons of 14 and over are subject to full responsibility for their acts (as if
they were 40).
Marital Coercion (Conjugal Subjection) - This is a common law situation

which is still applicable in Sierra Leone. A prima facie presumption that if a
wife committed an ordinary felony in her husband’s actual presence, the
common law raised a prima facie presumption that she had committed it
under such compulsion as to entitle her to be acquitted, even though there
was no proof of any actual intimidation by the husband.
However, any crime committed by a wife in the actual presence of the

husband when he was absent, his previous orders or threats would afford
her no more excuse than those of any other instigator. So, conjugal
subjection comes in where the husband is actually present.
This defence applies to most felonies but the defence does not extend to
treason and murder. This presumption of marital coercion does not apply to
non-indictable offences but to all misdemeanors and to ordinary felonies,
burglary and larceny but not to treason and murder.
The presumption of conjugal subjection was only a prima facie one

rebuttable by proof that the wife took any active part in the crime to show
that her will acted independently of the husband. This presumption is still
within our law but it has now been abolished from England by S.1 of the
Sexual Offences Act 1993.
Discipline - This falls under reasonable chastisement so as to promote the

welfare of the person who has been thrashed. So, it can be said to have been
justified by ‘reasonable chastisement’.
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Superior Orders - Can they be said to be a defence? Not in Sierra Leone

but in certain parts of the United States, superior orders can afford a
defendant of a defence.
Entrapment - Entrapment is not a defence in Sierra Leone. Entrapment can

be described as setting traps for the apprehension of offenders or to
procure evidence against them.
Is it a defence in England? In R v. Birchley, it was held that entrapment
was not a defence.
In Braman v. Peek, Goddard LJ expressed strong disapproval of entrapment
being available as a defence. He said, “The police officers commit offences
to procure evidence against offenders but still, it is not a recognized
defence.”
In the United States, entrapment is a defence available to accused persons
who have been coerced into committing a crime. However, this defence is
confined to drugs cases; Sherman v. United States.
Inchoate Offences
According to Glanville Williams, an inchoate offence is one that is committed

by doing an act with the purpose of effecting some other offence. So, it is
committed when the defendant takes certain steps towards the commission
of a crime.
The three (3) main inchoate offences are Attempt, Conspiracy and
Incitement.
The nature of the requisite acts that need to be taken varies with each of
these offences.
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For example, with Attempt, there must be an actus reus and it must be
voluntary. The defendant must have tried to commit the substantive offence
and must have got relatively close to getting there.
With Conspiracy, at least two (2) persons must have agreed to commit the
crime.
With Incitement, there must have been some encouragement from another
person persuading another to commit the crime.
Three (3) Types of Conspiracy
Conspiracy is one of the main inchoate offences and is a common law offence
in Sierra Leone. In England, it is now a statutory offence by virtue of S.1 (1)
of the Criminal Law Act 1977 which was amended by S.5 (1) the Criminal
Attempts Act 1981.
What is Conspiracy?
Conspiracy is the agreement of two or more persons to do an unlawful act or

to do a lawful act by unlawful means. This generally accepted definition was
laid down in Mulcahy v. R, (1868); “A conspiracy consists not merely in the
intention of two or more but in the agreement of two or more to do an
unlawful act or to do a lawful act by unlawful means. So long as such a design
rests in intention only, it is not indictable. When two agree to carry it into
effect, the very plot is an act in itself and the act of each of the parties,
promise against promises, actus contra actum, capable of being enforced if
lawful, punishable if for a criminal object or for the use of a criminal means.”
So, there must be an agreement as stated in R v. Walker; a mere intention

is not sufficient.
How do we know there’s an Agreement?
The agreement may be inferred from conduct. There need be no overt act
beyond the making of the agreement. In Aspinall, Bret J. said “The crime of
conspiracy is completely committed, if it is committed at all, the moment two
or more have agreed that they will do, at once or at some future time,
certain things. It is not necessary in order to complete the offence that any
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one thing should be done beyond the agreement. The conspirators may
repent and stop or may be prevented etc. Nevertheless, the crime is
complete and it is completed when they agree.”
Conspiracy is an indictable offence; it goes to the High Court.
The definition presents four (4) points for consideration -
1) Actus Reus - The actus reus of the offence of conspiracy is the

agreement to effect an unlawful act or to do an unlawful act by unlawful
means. So, the offence is completely constituted when the agreement is
made; it matters not that it was never carried out. Once the parties have
reached an agreement, it is irrelevant that the agreement was never acted
upon. In Mulcahy v. R, Lord Chelmsford said “Agreement is an act in
advancement of intention which each person has conceived in his mind.”
Therefore, bare intention is no crime but the agreement is.
2) Mens Rea - In conspiracy, mens rea required is an intention to execute

the unlawful act contemplated by the agreement. In R v. Thomas, it was
stated that a person is not to be convicted of conspiracy unless it is shown
that he intended to carry the agreement into effect so that if he did so
intend, it is immaterial that nothing was done in pursuance of that
agreement.
In Conteh & Others v. R, it was said, “Where the agreement is to do an

unlawful act, it must be shown that the parties knew of the circumstances
which rendered that act unlawful.”
The case of R v. Kamara went to appeal and the appeal was allowed. It
confirmed the principle in Conteh & Others but went further to show a
situation where there was conspiracy to do the unlawful act of trespass.
Can there be a Conspiracy to commit an offence of Strict Liability?
See Conteh & Others. There can be a conspiracy to commit an offence of

Strict Liability, provided that the accused knew all the circumstances which
rendered the agreement a conspiracy.
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Can one Conspire to commit an offence requiring Recklessness? Yes.
Can one conspire to commit an offence of Negligence?
Another aspect is Parties to the Agreement - In Kamara v. DPP, it was

held that an agreement to trespass on another’s land, if accompanied by
intent to inflict more than normal damage, was a criminal conspiracy.
Parties to the Agreement
As conspiracy consists of an agreement, it necessarily follows that there

must be two or more persons. However, how are these two parties
constituted? A person may be indicted alone for conspiracy with others
unknown, dead, uncaught or not charged. They may not all be in the dock. It
fulfils the requirement of two or more persons.
Situation of Husband & Wife - The doctrine of Conjugal Unity provides

that they are treated as being one. So, there’s no conspiracy where the only
parties to the agreement are husband and wife. This is so by reason of the
fiction that husband and wife are one person. This fiction applied even in
polygamous marriages as seen in Mawji v. R. However, there is a caveat;
husband and wife may be guilty of a conspiracy entered into before their
marriage; R v. Robinson.
Another limitation or caveat is that husband and wife may be convicted if

together they conspired with some third party. In R v. Whitehouse, it was a
conspiracy of husband, wife and their daughter.
One-Man Director Company - In R v. ICR Haulage Ltd, it was held that

the director and the company constitute one person and so there must be a
3rd person for the charge of conspiracy.
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A company and director may not be convicted of conspiracy when the only
person who broke the law was one person. This is in stark contrast to the
Identification Theory where the act of the management is considered to be
the act of the company.
Acquittal of All Save One - According to Card, Cross and Jones, where two
persons are tried together for conspiring with each other and other persons
unknown, dead or simply not charged, the acquittal of one does not mean
that the other cannot be convicted; R v. Anthony.
Where Two Persons are tried Together - Here, if there is no allegation of

conspiracy with other persons, the rule is that they must either both be
convicted or both be acquitted; R v. Nichols.
The question of whether one person could be charged and prosecuted for
conspiracy arose in R v. Shannon, (1974).
Different types of Conspiracy
1) Conspiracy to commit a crime.

2) Conspiracy to defraud another; Scott v. Metropolitan Police Comm.
3) Conspiracy to commit a tort; Kamara v. DPP.
4) Conspiracy to corrupt public morals; Show v. DPP followed by Knullar.
5) Knullar v. DPP also established Conspiracy to outrage public decency.
6) Conspiracy to obstruct/pervert the course of public justice.
So, it is an indictable offence at common law for two (2) or more persons to
conspire to obstruct, defeat or pervert the course of public justice. For
example, an agreement to discontinue a criminal prosecution in return for
payment. In Conteh & Others, there was interference with witnesses.
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Impossibility - Where the crime is Impossible of Commission
In DPP v. Knock, it was established that impossibility was a defence to a

charge of conspiracy at common law. Such is the case in Sierra Leone. In
England, it is not a defence; established in the Criminal Law Act 1977.
In DPP v. Knock, the accused was convicted of conspiracy to produce a

controlled drug by extracting cocaine from a powder which, in fact,
contained no cocaine. It was a question of impossibility.
The decision in Haughton v. Smith was followed in DPP v. Knock in the

respect that there would be no criminal liability for conspiracy to commit
the impossible; the position in Sierra Leone. This is not the case in England
by virtue of S.1 of the Criminal Law Act 1977 as amended by the Criminal
Attempts Act 1981 which states that there can be liability for conspiracy to
do the impossible. The English situation applies only to statutory conspiracy
and not common law conspiracy.
Repentance as a Defence - It could be a defence where the conspirator

repents and withdraws immediately after the agreement has been reached;
Barnard; the person was still held liable.
Physical Impossibility & Legal Impossibility
Legal Impossibility - Where the crime itself does not exist. E.g. conspiracy
to commit adultery; impossibility may give rise to a defence because
adultery is no crime in our jurisdiction and so it is, therefore, impossible for
there to be an offence for conspiracy to commit adultery.
Physical Impossibility - Because the object/subject of the crime is not

there, this cannot give rise to a defence to a charge of conspiracy; see the
cocaine case of R v. Ring & Others.
Attempt
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This is a common law offence in Sierra Leone but in England, it is a statutory

offence by virtue of the Criminal Attempts Act 1981.
What is Attempt? At common law, the answer was set out in R v. Eagleton;
“Acts remotely leading towards the commission of the offence are not to be
considered as attempts to commit it but acts immediately connected with it
are.”
The question arises of what acts are immediately or sufficiently connected

with the intended offences so as to amount to an attempt? So many
criterion have been laid out on this question and the following are the tests
that stand out prominently -
1) The Proximity Test

2) The Equivocality Test
3) The Locus Paenitentiae Test (A change of heart)
4) Social Danger
5) Impossibility
One can single out the Proximity Test as being the most prominent of what
amounts to Attempt.
Another is the concept of Impossibility which is used as a measure.

The Locus Paenitentiae Test (A change of heart) comes in with defences.
The ratio in R v. Robinson was upheld in Comer v. Bloomfield. This came to

be contrasted in DPP v. Stonehouse.
In R v. Robinson, the proximity test was applied but did not stand because
what Robinson did was not proximate; a jeweler, intending to defraud his
insurance company, hid all of his insured jewelry, tied himself up and called
for help, representing that his premises had been burgled. The police found
that it was a false burglary and Robinson was charged with attempting to
obtain money by false pretences. There was mens rea as the intention was
there; he had taken certain steps towards the commission of the offence
and shouted for help. However, notwithstanding such steps, the CA held that
the jeweler had not done enough to be liable for attempt. His acts were only
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remotely connected with the commission and not immediately connected. The
accused’s actions must be proximate to the offence meaning that the
accused must have done the final act; for example, by filing an insurance
claim.
The case of Comer v. Bloomfield supported this view; it was not an attempt
to intend to make a fraudulent insurance claim or even to invite or to write
asking whether or not a claim could be made. The act must be sufficiently
proximate.
However, DPP v. Stonehouse can be contrasted with R v. Robinson as in

Stonehouse, the steps taken were deemed to be sufficiently proximate.
Stonehouse was convicted of attempting to defraud by faking his drowning
on Miami Beach. That faking was sufficiently proximate to fraudulently
claiming insurance money. The accused, here, had done everything to commit
the offence, whereas in Robinson, he had not yet put in a claim.
An act is sufficiently proximate if it is the last act needed by the accused

to commit the full offence, even though something remained to be done by
someone else; for example, the widow had to make the claim for drowning in
Stonehouse.
Are these acts significantly proximate for the commission of the offence?
Whether the act is the last act or the act that is sufficiently proximate to
the commission of the offence.
This was demonstrated in R v. Campbell; the accused was arrested by police

within a yard of a post office, carrying a threatening note and a false gun. he
admitted that he had planned to rob the post office but said that he had
changed his mind and was going back to his motorbike when he was arrested.
He was charged and convicted of attempted robbery. This conviction was
quashed because there was no evidence that his acts were more than merely
preparatory to committing the offence.
In Gullefer, it was said that there was no evidence that Gullefer’s act was
more than merely preparatory. Gullefer had backed a greyhound and once
the race was started, it became clear to him that the dog would probably
lose. He thought that by disrupting the race, he would get back his stake
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money so he ran onto the track. He was convicted. However, the CA held
that there was no evidence that his act was more than merely preparatory
as the accused had clearly not started the crime proper. The offence
consisted not of stopping the race but of using that disruption to get back
his money, and he had not yet started to get the money back.
The mens rea of the offence - Intention is required to commit this offence.
Intention, however, to cause GBH is not sufficient mens rea for the offence
of attempt.
What about Conditional Intention? Is it sufficient for the mens rea of

attempt? In R v. Hussein, it was said that conditional intention was not
sufficient.
However, in A-G’s Reference (Nos 1 & 2) of 1979, it was held that
conditional intention was indeed sufficient to impose liability for an attempt,
provided that the indictment is properly made.
Offences which may not be Attempted
There is no liability for attempting to be a secondary party to a crime. So, in

effect, there is no offence for attempting to aid, abet, counsel or procure
the commission of an attempt.
It is also not an offence to attempt to conspire although it is possible to

attempt to incite.
For most non-fatal offences against the person, recklessness is sufficient

mens rea but not enough for a charge of attempting to commit any of these
non-fatal offences.
Note that some offences cannot be attempted because of their mens rea.
For example, manslaughter, because an attempt requires intention as the
mens rea and nothing less than that. If the accused has the intention to kill,
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the attempted offence must be attempted murder and not attempted

manslaughter.
It is also impossible to attempt any crime where the actus reus is an

omission or a state of affairs.
Impossibility as a Defence to Attempt
See Haughton v. Smith for legal impossibility.
In the case of Taaffe, it was established that impossibility can be a defence

where the accused attempts to commit what he thinks is an offence but
which actually is not against the law. Taaffe imported foreign currency into
the UK, believing it to be a crime. In fact, it is not against the law. So,
although Taaffe was, in his own mind, attempting to commit an offence, he
could not under the circumstances of the case. Therefore, impossibility is a
defence.
Incitement
The crime of incitement, sometimes known as “solicitation”, is a common law

inchoate offence, whereby the defendant/accused persuades another to
commit a crime.
The actus reus of incitement is the act of persuading, encouraging or

commanding another to commit a crime. This was fortified in the case of
Fitzmaurice, where it was held that the necessary element of persuasion was
satisfied by suggestion, proposal or request, accompanied by an implication
of a promise of reward.
In R.R. v. Aplin, Lord Denning said “A person may incite another to do an

act by threatening or by pressure, as well as by persuasion.
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A much earlier case was the leading case of Higgins, where it was
established that incitement is an indictable misdemeanor at common law. it
was indictable for a person to incite/solicit another to commit an offence,
even though no such offence is committed or attempted. Here, Higgins was
convicted for inciting/soliciting a servant to steal his master’s property.
What form can Incitement take? It may be by words, deeds or your actions.
The incitement may be addressed to you, face to face (bilateral), or it may

be addressed to the world at large. In respect of the later, in the case of
Most, it was held that publishing an article in a newspaper urging
revolutionaries throughout the world to assassinate their Heads of State
would be an incitement to murder.
Note that the publication/solicitation must be communicated to the person

being incited. However, if the communication fails, there could still be
liability for attempted incitement; Chelmsford Justices ex parte Amos.
If the person incited agrees to commit the crime, what is the position? They
will both be liable for conspiracy. If the incite actually commits the crime,
the incitor is liable as an accessory.
Mens Rea of Incitement - The mental element required for incitement is a

Direct Intention; the incitor must intend that as a result of his persuasion,
the incite will bring about the crime. If the incitor knows that the incitee
has no mens rea, there can be no incitement assuming that the complete
crime requires mens rea because, in this circumstance, he is not inciting the
crime; Kerr. Cross-reference this case with Whitehouse. Note that if the
incitee actually committed the crime, the incitor will be the principal
offender acting through an innocent agent.
Once again, the mental element required is a direct intention and

recklessness as to the circumstances will not suffice. Neither will
recklessness as to the consequences because that would be an extension of
the ambit of incitement. Wisdom is to confine the mental element to a
direct intention.
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Impossibility as a Defence to Incitement
In the case of McDonough, it was held that there could be liability for an
incitement to commit the impossible. This was approved by the HL in the
case of DPP v. Nock.
It was considered in R v. Fitzmaurice; the appellant was asked by his father

to find someone to rob a woman on her way back by snatching wages from
her; a mugging. The appellant, believing the robbery was to take place,
approached one man called Bonham who was unemployed and in need of
money. he encouraged Bonham to take part in the proposed robbery. In fact,
the proposed robbery was a fiction invented by the father to enable him to
collect reward money from the police for providing false information about a
false robbery. Fitzmaurice was charged for inciting the man and was
convicted. He appealed, contending that at common law, incitement to
commit an offence could not be committed where it was impossible to
commit the offence incited and that since the proposed robbery of the
woman was fictitious, it was impossible to commit the robbery. The appeal
was dismissed because it was not a case of impossibility here; it was not a
charade because the appellant was inciting Bonham to commit an offence.
The court further held that a person would not be liable for inciting an
offence impossible to commit. But if the incitement were in general terms,
the fact that the precise plan visualized by the incitor was impossible, would
not necessarily mean that the offence itself was impossible. I.e. it is
possible for impossibility to be a defence if the incitement was in specific
but not in general terms.
If A incites B to kill C who, unknown to them, is dead, it would be impossible

to commit; no liability.
Incitement of a Non-Criminal Nature
If a person incites an innocent agent to commit a crime and the agent

complies, the incitor will be liable as the principal offender. If the agent
does not commit the crime, the incitor will be liable for attempt to incite.
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Double Inchoate Offences
These are Incitement to incite and Attempt to incite. However, there would
be no point in charging an incitement to incite since a person who incites
another to attempt necessarily incites him to commit it.
Non-Fatal Offences against the Person - Where Death Does not Result
Common Assault - This is a statutory offence in Sierra Leone because it is

found under the Summary Conviction Offences Act, Cap 37 Laws of S.L.
1960. Before this, assault was a common law offence. It is also a statutory
offence in England under the Criminal Justice Act 1988, where S.39
stipulates that assault (and battery) are summary offences.
Although they are statutory offences, the elements of the offence could be
found in the common law. So, an assault is an act by which any person
intentionally or recklessly causes another person to fear the immediate
application to himself of lawful physical violence.
Can Omission Constitute an Assault?
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In Fagan v Metropolitan Police Commissioner, a motorist, having been asked

to drive to the curb, drove onto the officer’s foot. When asked to drive off
the officer’s foot, the motorist refused. Does that amount to a battery?
The Divisional Court held that the motorist’s conduct amounted to battery
because allowing the car to remain on the foot could be treated as a
continuing act of application of force. In other words, the motorist can
super impose his mens rea on the continuing act.
* Follow the ruling in Fagan for Continuing Act cases & Rape cases.
This definition of what is an assault and whether an omission can constitute

an offence was approved by the HL in the cases of Savage and Parmenter;
no force need actually be applied. Creating the fear of force is sufficient so
that assault can be committed by raising a fist or pointing a gun at someone.
The actus reus of assault is constituted by the creation in the mind of a

person the belief that force or violence is to be used unlawfully against him.
So, the victim must apprehend immediate and unlawful personal violence.
Can Words alone constitute an Assault?
In the case of Meade v. Belt, Mr. Justice Holroyd said “No words or singing
are equivalent to an assault.” I.e. mere words or singing, however threatening
they may be, cannot in themselves constitute an assault; some action is
necessary. In this case, people were gathered around another’s house singing
menacing songs with violent language.
This statement creates difficulty - If D approaches P from behind or on a

dark night and says “I have a gun and I’ll shoot you if you don’t hand over
your money”, would P not apprehend immediate personal violence? However,
Holroyd’s statement is contrary to this and suggests that no assault will be
constituted.
Words can also prevent a potential assault from occurring, so that if a

person shakes his fist at someone but at the same time states that he will
not harm that person, will there be an assault? An old case which said that it
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cannot be an assault was Tuberville v. Savage; Tuberville, annoyed by the

comments of Savage, placed his hand on his sword and said, “If it were not
assize time I would not take such language from you.” It was held that by his
own words, the defendant had negated the possibility of a battery. Thus,
the mere gesture, no matter how menacing, is not actionable if it appears at
the time that there is no intention to put the menace into immediate effect.
In Fagan, it was stated that an omission could not constitute an assault. But
can an assault arise from a continuing act such as in Fagan? Yes. This was
also examined in the rape case, Kaitamaki, where it was held that rape is a
continuing act; it starts when you go in but terminates when you withdraw.
In Stephens v. Myers, it was held that a threat by D to inflict violence at

some future time on P did not constitute an assault. The victim must fear
the immediate infliction of force and so future-time force would not be
sufficient.
Would administering a noxious substance to another without the use of

violence constitute an assault? No, it does not; R v. Walkden.
The exposition on assault as stated in Stephens v. Myers has been

reconsidered in the following cases -
Smith v. Chief Superintendent Woking Police Station; the victim was at

home in her ground floor bed-sit dressed only in her negligee. She was
terrified when she suddenly saw the defendant, Smith, standing at her
garden staring at her through the window. He was found liable for assault on
the grounds that the victim feared the immediate infliction of force, even
though she was safely locked inside.
The requirement that the victim must fear the immediate infliction of force
was undermined in R v. Ireland as well as in R v. Costanza, a London Times
case. Both of these cases involved the phenomenon of stalking.
In R v. Ireland, the defendant had made a large number of repeated and

unwarranted telephone calls to three different women, remaining silent when
they answered the phone. All of these women suffered significant
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psychological symptoms such as palpitations, cold sweats, anxiety, inability to

sleep, dizziness and stress as a result of the repeated calls. Ireland was
charged with assault occasioning actual bodily harm. So, it seems that under
S.47, for Ireland to be convicted, there must have been an assault. He
appealed on the basis that there was no assault since the requirement of
immediacy had not been satisfied. The appeal was dismissed by the CA who
stated that the requirement of immediacy was in fact satisfied by his using
the telephone because in so-doing, the appellant had put himself in
immediate contact with the victims. Consequently, when the victims lifted
the telephones, they were placed in immediate fear and suffered
psychological damage. The court said that it was not necessary for there to
be physical proximity between the defendant and the victims.
In R v. Costanza, another stalking case, the victim had been stalked over a
prolonged period or time. The CA stated that in order to incur liability for
assault, it is enough for the prosecution to prove a fear of violence at some
time not exceeding the immediate future.
The mens rea of assault is an intention to cause the victim to apprehend

immediate unlawful personal violence or (ii) Recklessness as defined in
Cunningham; subjective recklessness as to whether such apprehension is
caused; Venna.
Causation
Is an assault a Result Crime? Will the issue of causation be relevant in

assault?
There was public concern in England regarding stalking cases and they
thought it fit, in order to protect persons, to pass the _____ Act 1977
which created summary criminal offences such as to address the issue of
stalking.
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For common assault, Consent may be a defence. In R v. Brown, a group of

middle-aged homosexuals were discovered participating in sado-masochistic
sexual practices. The victim was manacled while another member of the
group carried out activities on him such as nailing the victim’s scrotum and
burning his penis. The victims were all willing and invented code words to
stop activities when the pain had become too great. Charges were filed
against the group under S.47 (ABH) and S.20 (Malicious wounding). They
raised the defence of consent and claimed that they should not be convicted
because they were all consenting parties. It was held 3:2 that they were
rightly convicted as consent is no defence unless there is good reason such
as sporting activities like football or boxing.
Battery
Battery is a summary offence but it can also be a statutory offence. In

Sierra Leone, by virtue of S.19 of the Summary Conviction Offences Act,
Cap 37 Laws of S.L. 1960. Though statutory, elements of the offence are
defined at common law.
What is Battery? In Fagan v Metropolitan Police Commissioner, it was said

that battery means the actual intended use of unlawful force on another
without his consent. So, there is battery where D, without lawful excuse,
pushes B, the victim, forcing him off the pavement. Also, where the
defendant, without lawful excuse, sticks the victim’s face.
Actus Reus of Battery - This is the actual application of unlawful personal

force or violence by the defendant to the victim. So, any unlawful physical
contact can amount to battery. There is no need to prove harm or pain; mere
touching of the person without his consent is sufficient. That force or
violence can be applied directly. For example, if one person slaps the other
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directly across the face. It could also be indirect, as in Fagan, where the
force or violence was applied by running over the police officer’s foot with
the car.
In R v. Thomas, it was said, obiter, that touching the bottom of a woman’s

skirt was equivalent to touching the woman herself. So, touching the victim’s
clothes may be enough, even if the victim feels nothing at all.
When do you draw the line between acceptable and unacceptable forms of
contact so as to determine whether that contact is battery? In the case of
Collins v. Wilcock, Goff LJ stated that there was a general exception
embracing all physical contact which is generally acceptable in the ordinary
conduct of daily life. It would be determined on the facts of each particular
case. For example, jostling in a busy street or in a poda poda. Touching in the
Collins case was considered as being hostile as the police officer in this case
did not merely touch the person but sought to restrain her which the court
said was unlawful.
An omission to act cannot constitute a battery as well as an assault but a

continuing act as in Fagan would constitute a battery. The court held that
where the battery was a continuing act, it would constitute a battery. here,
the accused was convicted of assaulting a police officer in execution of his
duty.
Mens Rea of Battery - In Venna, it was established that the mens rea of
battery is intention to apply unlawful force or being reckless as to the
application of the unlawful force; Assault Occasioning Actual Bodily Harm is
defined in S.47; it is an offence to commit “any assault occasioning actual
bodily harm”.
Actus Reus of Battery - S.47 deals with assault. Notwithstanding that the
section uses the term “assault”, it has been accepted that it can be
committed with either an assault or a battery. The prosecution must prove
the actus reus of assault or battery.
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What is Actual Bodily Harm? This was interpreted widely in Miller; the court
said “Actual Bodily Harm includes/means hurt or injury calculated to
interfere with the health or comfort of the victim. The hurt or injury need
not be serious or permanent but it must be more than de minimis, trifling or
transient. Pain or discomfort are sufficient although there is no discernable
injury such as a bruise or swelling. The injury need not be serious or
permanent; R v. Chan Fook. In Reigate Justices ex parte Counsel, it was
held that pain or discomfort are sufficient to constitute actual bodily harm.
In Miller, it was held that assault occasioning actual bodily harm included not
just physical harm but also psychological injury such as shock. However,
psychological injury will only count as actual bodily harm if it is a clinically
recognized condition.
The point was also made in R v. Chan Fook; Chan Fook aggressively
questioned a man suspected of stealing his fiancé’s jewelry and then dragged
him upstairs and locked him up in a room. The victim, frightened of what the
defendant would do to him upon his return, tried to escape through the
window but injured himself when he fell to the ground. The defendant was
charged under S.47 and he denied striking the victim. The trial judge said,
“For criminal liability to be incurred, it would be sufficient if the victim
suffered a hysterical or nervous condition at the time. The court found him
guilty. His appeal was allowed and Hobhouse LJ said, “Actual bodily harm is
capable of including psychiatric injury but it doesn’t include mere emotions
such as fear, distress or panic.”
The mens rea is the same as for assault and battery and no additional mens
rea is required; R v. Roberts. See also Savage and Parmenter. See also S.20
of the Offences against the Person’s Act 1861.
The actus reus consists of unlawful wounding or unlawful infliction of GBH.
What is “Unlawful”? Fagan gives the definition of “unlawful”.
What is “Wounding”? “Wounding” requires a breaking of the skin. So, there’s

normally some bleeding. A graze will be sufficient although there is no
breaking the skin. In C (a minor) v. Eisenhower, the defendant fired an air
pistol, hitting the victim in the eye with a pellet. This ruptured a blood
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vessel in the eye, causing internal bleeding but the injury was not sufficient
to constitute a wounding as the skin had not been broken.
To constitute a wound, the continuity of the old skin must be broken as was
held in Moriarty v. Brooks.
Further, there need be no profusion of blood; one drop would be sufficient.

So, a scratch which does not break the inner skin is not a wound;
McGloughlin.
GBH means really serious harm as stated in DPP v. Smith.
GBH would also include psychiatric injury; R v. Burstow; this case recognizes
and approved of what was said in DPP v. Smith, that a really serious
psychiatric injury can amount to GBH.
The mens rea of GBH is defined by the word “maliciously”; in Cunningham,

described as meaning intentionally or recklessly subjective recklessness.
S.18 of the Offences against the Person’s Act characterizes GBH as an

offence of Specific Intent.
GBH is commonly known as Wounding with Intent.
The actus reus recognizes that a wound is the breaking of the whole skin. A
scratch or burn is not sufficient. It does not suffice that the outer skin is
broken; R v. Wood; here, the defendant assaulted the victim violently so
that the victim’s collarbone was broken. The court said that this was not
wounding since the skin had not been broken.
GBH was described as being serious bodily harm in DPP v. Smith.
S.18 describes the mens rea as unlawfully and maliciously, by any means
whatsoever causing GBH. There are 2 elements of the mens rea -
1) The defendant must maliciously wound or cause GBH.
2) The defendant must do so with an ulterior motive/intent either to cause
GBH etc.
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What is “Maliciously”? In Cunningham, it was established that there must be

an actual intention to do a particular kind of harm and being reckless as to
whether some harm was caused.
Offences against the Person Resulting in Death
There are three (3) types of such homicide - at common law we have murder,
manslaughter and suicide. Infanticide, however, is a creation of statute.
Murder - This is the most serious of homicidal offences. Sierra Leone does
not have an offence of homicide but there is murder as a result of homicide.
Murder is a felony. The definition of homicide can be found at common law
and not in statute. The classical definition was given by Coke CJ who said,
“It is murder for a person of sound memory and of the age of discretion
unlawfully to kill any reasonable creature in being and under the King’s peace
with malice aforethought, either expressed or implied by law, the death
taking place within a year and a day after such injury. So, murder is
commonly defined as unlawfully killing with malice aforethought.
Severing the actus reus from the mens rea
Actus Reus of Murder
The actus reus of murder is the voluntary and unlawful killing of a

reasonable creature in being by an act or omission under the President’s
peace; with death following within a year and a day.
Mens Rea of Murder
Malice aforethought constitutes the mens rea of the offence.
“A Reasonable Creature in Being”
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This includes a sane as well as insane person in law. Any human being.
“Under the President’s Peace”
This includes everyone under the State. However, it will not cover an enemy,
especially one killed in the course of the operation of law.
“A Person of Sound Memory and Discretion”
This is somebody who has the capacity and a child under seven (7) would not.
it must be a person of sound memory and discretion.
Those whose ages fall between 7-14 are still doli incapax but there is a
rebuttable presumption if they are of mischievous discretion; someone who
knows that they have done wrong.
“Unlawfully”
This is used to distinguish from lawful homicide.
“Person Must be Born Alive”
It must have been the killing of a human being and not a fetus.
In a situation where the baby’s head comes out and you kill that child, he is
not yet born alive and such a killing would not constitute murder, but perhaps
infanticide. One is born alive when the whole body has been brought into the
world. The child must have had an existence “independent of the mother”. It
has been accepted that the child is independent of the mother if, after the
child has been born, it has breathed itself or that the child has independent
circulation of the blood.
Notwithstanding that it is still attached by the umbilical cord, the child

could still be independently existing.
It is important that the child was alive after complete extrusion.
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When the child is poisoned or injured in the womb and born alive, but
afterwards dies as a result of the injury or poison ______________ .
“Year and a Day”
It has been the rule that no one can be convicted of murder/manslaughter

of another who does not die within a year and a day after the injury they
have sustained; R v. Dyson.
Murder is a result crime so there is the question of Causation; when the

death is hastened by your act. The but-for test etc.
There is also the question of Contribution; did the person contribute to his
own death? In R v. Pagett, the accused, in order to resist arrest, held a girl
in front of him as a shield and fired at a policeman who fired back
instinctively and killed the girl. He was charged with murder but convicted
of manslaughter.
The Mental Element of Murder
The mental element includes unlawful homicide with malice aforethought.

You can distinguish murder from lawful manslaughter; unlawful homicide
without malice aforethought.
Malice Aforethought - The person has thought about it beforehand; it is

planned or pre-meditated. It can also happen on the spur of the moment, so
the definition of malice aforethought expanded to include mercy killing or
euthanasia. This malice aforethought can be either expressed or implied.
Expressed in the sense that you intended to kill.
Implied malice aforethought that you intend to cause GBH.
See the following cases -
R v. Vickers
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DPP v. Smith
R v. Maloney
R v. Nedrick
Constructive Malice Aforethought
The first type of Constructive Malice is that it is murder to cause death in

the furtherance of a felony, even though the accused might not have
intended to kill or cause GBH; provided that the accused had the mens rea
for that felony. For example, if when going to steal, you had intention to
steal but if a person dies, it is murder; constructive malice aforethought.
The second type is that it is murder to cause death when resisting lawful
arrest, even though the accused might not have intended to kill. it is
important to prove that he intended to resist arrest.
So, technically, a man is guilty of murder if he unintentionally killed a police

officer when resisting arrest.
Cases on Constructive Malice include -
DPP v. Beard
R v. Jarmain
Betts v. Ridley
Cases on the second limb of Resisting Arrest include -
R v. Porter
R v. Padgett
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Thabo-Meli involves the coincidence of the actus reus and the mens rea.
The actus reus must coincide with the mens rea. However, it may be a series
of events and when they coincide, it is sufficient.
Must the accused’s conduct and the mental element coincide? The intent to
kill or cause GBH must exist at the time the accused caused the death.
R v. Church and Att-Gen Reference (No.4) establish that the actus reus
and the mens rea need not coincide. So, if death is caused by one act in a
series of acts, in the circumstances, the conduct and mental element need
not coincide.
Suppose that defendant A inflicts knife wounds on B, intending to kill B but

medical evidence says that the last stab killed B but at that time, A was sure
B was dead but wanted to make sure. Such a person is guilty of murder
because when he delivered the last blow, he had conditional intention to kill
if the victim should still be alive.
Omission - If at the time you should have acted, you said no and let it go,
then yes, murder can be committed by omission.
Manslaughter
You have Voluntary Manslaughter and Involuntary Manslaughter.
There are two (2) types of Involuntary Manslaughter - Negligent

Manslaughter and The Unlawful Act Manslaughter.
Negligent Manslaughter is the performance of a lawful act negligently.
In Voluntary Manslaughter, the mens rea of murder exists but in Involuntary

Manslaughter, it does not exist.
Voluntary Manslaughter occurs where the accused has the necessary actus
reus and mens rea of murder. But there are mitigating circumstances which
allow for partial defences and so reduce murder to manslaughter.
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In Sierra Leone, there is the partial defence of Provocation. In England,

Diminished Responsibility and Suicide Pacts reduce murder to Involuntary
Manslaughter. These, however, are not applicable in Sierra Leone.
Three (3) Elements Must Be Proved Under Provocation -
1) The Provocative Conduct.

2) That the provocation made the Accuse lose his Self Control.
3) That a Reasonable Man would have been so provoked.
The Provocative Conduct -
(a) It need not be illegal or even wrongful. In Doughty, (1986), it was held
that the persistent crying of a baby would amount to provocation.
(b) The Provocative Act/Conduct need not have been directed at the
defendant by the accused. In R v. Pearson, (1992), two brothers killed their
violent, tyrannical father with a sledgehammer. It was held that the father’s
violent treatment of the younger brother during the 8 years when the older
brother was not at home was relevant to him, especially as he had returned
home in order to protect his brother.
(c) The provocation has to be “done by the dead man to the accused”; Duffy.
However, in England, this requirement has been removed by the Homicide
Act of 1952.
In R v. Davies, it was held that the acts of the lover of D’s wife would be
taken into account as provoking D to kill his wife.
The fact that the provocation was induced by the defendant in the first
place does not necessarily prevent the defence being made out. In the case
of R v. Johnson, Johnson and a friend had been drinking at a nightclub.
Johnson threatened violence towards the female friend and the friend
himself. A struggle developed. Johnson stabbed the friend with a flick knife
and killed him. He was convicted of murder. He appealed on the grounds of
provocation and it was allowed; charge was reduced to manslaughter. In such
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cases, the provocation must be extreme, as compared to the defendant’s

original conduct.
Loss of Self-Control
This is a Subjective Test.
The question is, “Did the defendant actually lose his Self-Control?” The loss
of self-control must be due to temper. In R v. Cocker, the accused
suffocated his wife who was suffering from a painful terminal illness and had
repeatedly begged him to end her life. He was convicted for murder. The CA
said that the judge was correct. Loss of self-control must be due to temper.
Here, the defendant had not lost his temper but listened to his wife.
In Duffy, it was held that the loss of Self-Control must be sudden and
temporary.
In Ibrams, it was held that the existence of a cooling off period between
the act of provocation and the killing was not manslaughter but murder.
See the cases of R v. Thornton, R v. Pearson and R v. Humphrey.
The Reasonable Man’s Test
For the partial defence of Provocation, to succeed, it must be shown that

not only must a reasonable person be provoked, but that such reasonable
person acts as the defendant did and his act was not out of proportion to
the provocation.
In R v. Acotts, A’s mother was found dead after having consumed a

substantial quantity of alcohol and having received a multiple injury. A was
convicted of the murder of his mother. At the HL, he pleaded provocation
but was overruled. The HL said that where in a case of murder, there is
evidence that the accused was provoked to lose his self-control, the test of
whether the provocation was enough to make a reasonable person do as he
did, is a matter for the jury.
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In Bedder, the accused attempted to have intercourse with a lady but he

was impotent and so he killed her. The HL said that the evidence of
impotence had been rightly excluded.
So, Provocation seems to depend upon the following considerations -
1) Did the accused, in fact, lose his self-control? The actual attitude of the
accused must be considered. The killing can only be reduced from Murder to
Manslaughter if the established facts reveal that the accused lost control
as a result of provocation.
2) Would a reasonable man have retaliated as the accused did?
If all the answers are yes, then Who is a Reasonable Man?
Bedder is now bad law in Britain but in Camplin, a rational approach was
taken. In Camplin, it was held that there must be a “sudden and temporary
loss of self-control”. Anything done or said may be provocation if
(a) In the circumstances, it was sufficient to deprive a person having the
power of self-control of an ordinary person, but otherwise having the
characteristics of the offender, of the power of self-control; and
(b) It did, in fact, deprive the offender of the power of self-control and
thereby induced him to commit the act of homicide.
Adultery
Note the cooling off period. In the case of adultery, if a husband kills in this
circumstance, he has a defence from murder to manslaughter. In the case of
R v. Holmes, it was held that the Holmes rule applies where the man and
woman are lawfully husband and wife. It was held here that confession of
adultery is not sufficient provocation.
In Duffy, on the night of the murder, there was a quarrel between the
husband and wife. The wife wanted to take their child away and the husband
refused. She went to another room and changed her clothes but later went
to the husband’s room. She struck the husband to death with a hatchet and
hammer.
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In Camplin, the HL said that a reasonable man is a person having the power
of self-control.
R v. Davies, R v. Ibrahim & Gregory and R v. Browne - These are cases

where certain characteristics are excluded, whether or not provocation has
been established.
The case of R v. Byrne was decided with reference to the partial defence in
English law of Diminished Responsibility.
Involuntary Manslaughter
There are two (2) types - Constructive Manslaughter and Negligent

Manslaughter.
Constructive Manslaughter - Where there is a killing without malice

aforethought by doing an unlawful act of a dangerous character.
Negligent Manslaughter - This is an unlawful act such as assault. Death is

caused as a consequence of an unlawful act of a dangerous character.
In Constructive Manslaughter, the unlawful act must be dangerous;

R v. Larkin; Larkin was convicted for manslaughter and appealed against the
conviction. His appeal was dismissed. The judge opined, “Where the act
which a person is engaged in performing is unlawful, then if at the same time
it is a dangerous act, an act likely to injure another person, perhaps
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inadvertently or accidentally and causes the death of another, then he is

guilty of manslaughter.” In this case, a man called Nelson and Larkin’s
mistress had committed adultery. Larkin, being jealous, took a razor out of
his pocket with the intention to terrify Nelson. The woman, being drunk,
strayed against the razor and her throat was cut off by the razor. He did
not intend to kill the woman but he was doing something unlawful and of a
dangerous character. This was constructive manslaughter; no intention and
no mens rea.
The case of R v. Church approved of Larkin’s case and stated that an act is
of dangerous character if any sober and reasonable person would recognize
the act was dangerous in the light, not only of the circumstances actually
known to the accused, but also of any additional circumstances of which that
hypothetical person would have been aware.
In DPP v. Newbury & Jones, it was said that the test of whether the act
was dangerous is not whether the accused recognized that it was dangerous.
The test is, instead, would all sober and reasonable people recognize it as
being a danger; an objective test. The appellants had pushed a paving stone
over a bridge into the path of an oncoming train and killed the guard seated
next to the driver. They were convicted of manslaughter and appealed to the
HL and lost. The unlawful and dangerous act must cause the death.
“An Unlawful Act”
In R v. Franklin, Justice Field expressed great abhorrence for constructive

crime. He said, “The mere fact of a civil wrong committed by one person
against another ought not to be used as an incident which is a necessary step
to a criminal case.”
In this case, Franklin had taken a box from a refreshment store on the pier
of Brighton and wantonly threw it into the sea. Unfortunately, the box
struck a person who was swimming and caused death. Franklin was indicted
and convicted of manslaughter. The death was caused as a consequence of a
civil act.
In Andrews v. DPP, Andrews was convicted of manslaughter resulting from

the reckless and dangerous driving of the motorcar. His appeal was
dismissed. This case confirmed the rule that there had to be an unlawful act
in its own right and not an act which became unlawful.
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Distinguishes between the degree of negligence resulting from ________ .
In R v. Lamp, Lamp had shot and killed a friend. Lamb pointed a loaded gun
at his friend, in jest. He did not intend to injure or alarm his friend. Because
they didn’t understand how a revolver works, both thought there was no
danger in pulling the trigger; but when Lamb did so, he shot his friend dead.
Lamb was convicted of manslaughter but this was later quashed. The
direction was that the accused had done an unlawful and dangerous crime.
The CA held that without an element of intent, there cannot be an assault.
Whether he could have been guilty of manslaughter by recklessness was not
decided.
In DPP v. Newbury & Jones, it was held that manslaughter is a crime of

basic intent which is an intention to do the acts which constitute the crime.
Refer to the following cases -
R v. Cato, R v. Dalby &
DPP for Jamaica v. Daley & McGie
Significantly, look at R v. Mitchell; Mitchell was found guilty of

manslaughter. The doctrine of transferred malice was applied to
constructive manslaughter. The accused had pushed in a queue, causing an
old woman to fall and later die.
Negligent Manslaughter
This is manslaughter by gross negligence.
Andrews v. DPP
R v. Bateman
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Gross negligence encompasses killings caused by omission or failure to act, as

was the case in R v. Stone & Dobson.
Until 1953 in England, it was generally accepted that two (2) forms of
involuntary manslaughter existed: Constructive Manslaughter and
Caldwell/Reckless Manslaughter. However, this general acceptance was
reconsidered in R v. Adomako. By virtue of this case, Cardwell/Reckless
manslaughter does not exist, leaving only Gross Negligence Manslaughter.
Adomako was an anesthetist whose patient died from a lack of breath when
a tube was inserted into him. Adomako didn’t realize why the patient was
turning blue. The HL said that for liability for gross negligence to arise,
there must be the common ingredient of all homicide offences -
1) Risk of Death.
2) Duty of Care.
3) Breach of Duty.
4) Gross Negligence as regards the
Larceny
The Larceny Act 1916 governs stealing and defines what ‘stealing’ is. The
definition is in S.1 -
Mens Rea of Larceny
You eliminate the actus reus contained in the definition in S.1.

Isolate “Fraudulently”, “Without a claim of right made in good faith”, “With
intent”.
Animus Firendi - Intent of the taker.
The mens rea is, therefore, “Fraudulently”, “Absence of a claim of right

made in good faith” and “With intent”.
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Even the temporary dispossession or taking away of somebody else’s

property is significant; R v. Manning; Somebody sold bags to A. A’s servant,
B, gave back those bags to the seller. The seller now presented the same
bags to the Master. “Permanently to deprive the owner thereof” is satisfied
even though it was only a temporary loss of possession because the seller,
even though only for a limited period, took and carried away property that
didn’t belong to him. It was held to be larceny when Manning took some of
his Master’s potato bags and placed them at the door to enable him to re-
sell the bags. So, there need therefore not be any permanent deprivation.
There must be the animus firendi at the time of such taking and carrying
away. It is plainly and explicitly stated that the guilty intent and intent to
deprive must coincide with the animus firendi.
If the original taking is a trespass and there is no intention at the time of

such taking to deprive the owner, there comes a point in time where the
intention is thrown back to constitute S.1 larceny.
When you first take the object, there is no intention, but at a subsequent
date you form the intention which is thrown back to constitute S.1 larceny -
“at the time of such taking”; R v. Riley.
“Claims of Right Made in Good Faith”
In built defence operating to negative the mens rea.
See R v. Hall
In Att-Gen v. Mammah, there was larceny of 800 pieces of bad valued 500
Leones.
See Ross v. Matt.
“Fraudulently”
There has been criticism that after “claim of right” etc., there is no need
for “fraudulently”. This was explained in R v. Williams, where Lord Goddard
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said that it does add something. It is necessary to prove that there was
intention.
“Receiving Stolen Goods”
S.33. Sever the elements of the actus reus from the elements of the mens
rea and then idenitify the elements of each.
These elements involve receiving and, thirdly, there must be guilty

knowledge of receiving; R v. Wiley.
The thing received must have been stolen at the time of the receiving;
R v. King.
See also R v. Villensky.
“Knowledge”
The accused must/ought to have known that the property must have been
stolen. For example, when the thing sold is sold by an unlikely vendor at an
unlikely price, at an unlikely place, at an unlikely hour.
In addition, all the elements are elements of the actus reus, so there must
be a mens rea that there was an intention by the receiver to take the goods
as his.
S.33(1) - Should intention to receive be “at the time”? In R v. Mathews, the

CA decided that this same requirement exists for receiving as it does for
larceny. If, at the time property was received, the person was innocent, that
innocent taking cannot be converted to a criminal taking.
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“Recent Possession”
Marsh & Others v. State
Abdul Muktar v. R
S.17 (1) (a) - Larceny by Clerk or Servant. Steals.
S.17 (1) (b) - Embezzlement
There is a distinction of stealing/taking (a) or receiving (b).
It must be done within the scope and course of the servant/clerk’s

employment.
In R v. Gale, checks were received on behalf of the employer etc.
In R v. Davenport, the defendant was wrongfully charged of larceny by

clerk or servant. Davenport was convicted but it was set aside and
substituted for embezzlement.
See Garber v. R.
S.32 (1) - False Pretences.
This is a false representation of an existing fact; a fact that exists or did

exist. It could be past or present but not future; false statement of
intention.
See R v. Lee.
In R v. Jennison, ____________________________.
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In R v. Gordon, the question asked was Can a mere state of mind or

intention be a sufficient fact? No, it cannot.
Would statements of free opinion or exaggeration amount to statement of

fact? In R v. John-Bryan, John-Bryan was convicted but on appeal, the
conviction was quashed. He had represented that certain spoons were the
equivalent of Elkington’s A. He then stamped the spoons with letter ‘A’. He
procured an advance of money but the spoons turned out to be of inferior
quality than originally represented. The money advanced exceeded the value
of the spoons. The CA said that the representation by the accused was an
exaggeration and not a matter of fact. Further, the court said that there is
no affirmation of a definite fact but more so, it is to opinion and so it does
not fall under S.32 (1) - False Pretences. The court said that if he had
represented that the spoons had been of Elkington’s A manufacture when he
knew that they were not, then he could have fallen under S.32 (1) - False
Pretences.
In R v. Ardley, it was established that distinctions may arise between

matters of fact and matters of opinion. Statements of specific facts and
mere exaggerated promise so it would be difficult to determine conclusively
what is a fact or opinion. What is a specific statement and an exaggerated
opinion on the facts and circumstances of each case as they arise.
In Rex v. Bernard, the question was, ‘Can a representation be made by

remaining silent, or by words which do not express but imply?’ Yes. In this
case, Bernard was charged for falsely pretending that he was an
undergraduate of the University of Oxford. So, by wearing an
undergraduate gown, he obtained a pair of bootstraps from a store
extending credit to Oxford students. It turned out that he did not belong to
Oxford University after all. Baron Boland said that if nothing had passed in
words (the gown and cap were sufficient), the fact he wore the cap and gown
would have been evidence that he belonged to Oxford.
In R v. Harelton, Harelton was convicted for obtaining goods by false

pretences. He received goods by issuing checks. One for 5 Pounds and
another for 8 Pounds. The check bounced and he was convicted. His
conviction was affirmed and these questions arose -
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1) Whether the accused had expressly or implicitly made a representation

upon which the goods were obtained?
2) Whether that representation was false?
It was held that the issuing of the checks implied -
(i) A representation that the drawer has an account with that bank.
(ii) He had the authority to draw the sum he drew.
(iii) The check, as drawn, is good and valid order for the payment of that
amount.
It does not imply any representation that the drawer had money in the bank
to the amount drawn for. The accused knew his account was virtually closed
and so he had no authority to issue that check.
“Obtaining” by False Pretence - The pretence must have followed an

obtaining; R v. Martin.
The obtaining must be caused by the pretence; R v. Mills.
There must be a right obtained; ownership title passes.
So, obtaining a mere right to possession would not suffice. This is distinct
from Larceny by Bailey (Possession). Ownership, not possession; R v. Ball.
The subject-matter is any chattel, money or valuable security.

It does not cover the fraudulent obtaining of a dog; R v. Robinson.
All these elements are elements of the actus reus; the physical element.
The mens rea is intent to defraud; S.40 (1). In Atkin v. R, the appellant was
convicted of obtaining money by false pretences.
S.20 (1) (IV) A & B - For Larceny by Bailey, he receives only possession and
not ownership of property converted by him. The clerk or servant receives
property on his master’s account. He receives possession.
False Pretences - A case by means of a false pretence that a fiduciary

ownership was obtained by the accused.
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So, in fraudulent conversion, you obtain ownership/possession of property

according to Smith & Hogan. If it is ownership, then it is necessary that the
accused received ownership of the property for which he is charged to have
fraudulently converted.
In R v. Yule, costs, including fees due to counsel and to shorthand writers,

were paid by a client to a solicitor into Yule’s account. He was convicted
under S.20 (1) (IV) (B) of the Larceny Act.
So, the crime of fraudulent conversion exactly fits the wide gap in law
through which so many people were slipping. E.g. the dishonest trustee or
agent etc.
In S.21 (4) (A), the term “Entrusted” means that the person trusted you; a
fiduciary element.
See R v. Hotine and R v. Grubb.
Distinguish Embezzlement from Fraudulent Conversion.

“Proceeds” - Money realized from property which is not money.
In R v. Hotine, it was held that a debt is not ‘proceeds’.
Fraudulent Conversion by servant - not because he is a servant but because

of a fiduciary duty imposed upon the servant to dispose of that property or
money as directed by the master.
The mens rea is intent to appropriate a benefit.
Intention to defraud.
How do you distinguish Larceny from Fraudulent Conversion?
Burglary
S.25 (1) and S.25 (2)
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“In The Night” - By S. 46 (1), to constitute a burglary, the breaking must

always take place between 9 p.m. - 6 a.m. and in the night; S.25.
Note that the “breaking out” must be in the night. If the “breaking in”
precedes the entering, both must take place in the night, although not
necessarily the same night.
If the “breaking in” is in the day, and the entry is in the night, it will not be
burglary. But if the entry precedes the breaking; I.e. a “breaking out” and
not a “breaking in”, the entry need not be at night.
The burglary can only be committed in a dwelling house; R v. Davies & co.
A dwelling house which though occupied but is not being slept in is not a
dwelling house; R v. Martin.
Temporary Absence (animo reveltendi) - This renders a place a dwelling

house, since you have the intention of coming back. It must be your home but
you are only temporarily absent. When the owner of the house has entered
into possession and occupation by himself or by some of his family, the house
will not cease to be a dwelling house on account of any occasional or
temporary absence.
So, if A and all of his family are absent for a night or more from a dwelling
house, then burglary will be committed in the house. But there must be an
intention of coming back; R v. Nutbrown.
A dwelling house, therefore, means a permanent structure, where some

person usually sleeps and which he regards as his home, even though he may
be temporarily absent. So a tent or movable caravan will not be sufficient to
qualify as a dwelling house.
Once the premises is established as a dwelling house, then any part of that
dwelling house can be burgled, provided (see S.46 (2) ) there is interval
communication between the dwelling house and the business part of the
house.
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Outbuildings are also included, provided they are permanent structures,

together with the dwelling house. There must be communication between the
outbuilding and the dwelling house.
The Breaking
If a man enters a house by a door or window which he finds already open; or

through a hole which was made there before he enters; or draws goods from
it with a stick, then that will not be a burglary. There must either be -
1) An Actual Breaking of some part of the house or
2) Constructive Breaking; i.e. entering the house by some fraud. E.g. a meter
reader.
Actual Breaking - See R v. Smith. This may be by making a hole in the wall,
forcing open a door or taking a pane out. But if a window or door is half-open,
then it will not be breaking of anything. It is sufficient to open a closed
door.
Constructive Breaking - This is to go through a chimney to enter a house.

Also, it is breaking to get into the house by deceit. E.g. plumber, meter
reader etc. You are allowed in to do a particular job; you can enter by some
conspiracy.
Entry - This means that apart from the breaking, some part of the body of
the burglar must also go into the house. If the breaking consists of breaking
a window with your hand and your hand goes through the window, then there
is breaking. But if you use an instrument, then it is not. However, if the
instrument is used to fish out goods/items, then there is a breaking.
See R v. Davies and R v. Hughes.
In R v. Rust & Fuan, it was held that if a man pushes a crowbar through a
window for the simple purpose of making a hole in the shutter, then there
will only be a breaking and no entering.
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Intent - “With Intent to commit a Felony” - There must be an intention to

commit a felony in the dwelling house. This intention must exist at the time
of the breaking and entering and not afterwards. But, if he breaks out after
having committed a felony inside, then this felonious intent is not necessary.
See R v. Gardiner.
House-Breaking
S.26
The definition of House-Breaking under S.26 is very much like that for
burglary. House-Breaking, however, differs from Burglary in that
1) House-Breaking can be committed by day or by night and
2) It is not restricted to a dwelling house.
S.26 (1) - “Breaks & Enters” - The building, in addition to a dwelling house,
also covers other structures.
The question that has been asked is, Would it include an unoccupied house, a
cinema or a dancehall?
3) In the case of “Breaking In” and committing a felony therein, it does not
matter that there was no previous intent. In other words, the felonious
intent need not exist at the time of breaking and entering.
4) In the case of ‘Breaking Out” (S.26 (2)) without having committed a

felony, would it be house-breaking under this section? No, it would not.
Even though there was a previous intent, if he had not committed a felony
therein, there’s no house-breaking.
5) The cases in Burglary which constitute a felony are applicable to House-

Breaking.
Blackmail - Demanding with Menaces
Sections 29, 30 & 31 of the Larceny Act 1916.
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These sections prohibit different kinds of blackmail.
See S.29 (1) - Utters, knowing the contents thereof, any letter, or writing
etc. Without any reasonable or probable cause.
Uttering - To put in circulation.
Menaces - The demand must be with menaces. However, the menace could
not be violence but could be something detrimental or unpleasant, without
any reasonable or probable cause.
S.30 - Demanding with menaces.
S.31 - Threatening to publish.
Rape
It is a felony and the maximum sentence is life imprisonment. A common law

offence, its punishment is statutory.
Rape is the unlawful carnal knowledge of a woman without her free and
conscious consent. Consent given by reason of force, fear or fraud cannot be
free and conscious consent.
“Consent” - A woman or a girl (15 and above) would not be deemed to be

consenting although there may be an appearance of consent. For example,
when she yields through fear of death or injury or threats of bodily injury;
either to herself or to some third person.
Secondly, it will not be free consent when the consent is obtained by fraud
or deceit. For example, as established in R v. Williams, a singing master
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induced a girl to have intercourse by pretending that the act was part of the
normal breathing exercise.
Thirdly, when a man has intercourse with a woman/girl while she’s asleep as
in R v. Mayers.
In R v. Young, it was held that it was rape carnally to know a married woman
when she is asleep.
What of a girl who is mentally incapacitated and you know that it is so? Or
where the woman is drunk? In R v. Camplin, the accused had intercourse
with a woman whom he had made drunk by giving her liquor to excite her. It
was held that it was not free and conscious consent.
In the rape of an idiot, would a defence of consent be tenable? In the case

of R v. Fletcher, it was held that a valid consent can be given by an idiot girl
through mere animal instinct to prevent the act from constituting rape.
There must be some evidence of a lack of consent to warrant a conviction
for rape.
It is also rape to have intercourse with a child too young to understand the
nature of the act.
Capacity
A boy under the age of fourteen (14) cannot be convicted of rape because
the law presumes irrebuttably that he is incapable of committing rape;
Re Brimillow.
This irrebuttable presumption also exempts a boy under 14 from being

convicted of assault with intent to commit rape; R v. Phillips.
But when a boy under 14 has done acts which, but for his age, would amount
to one of these offences, he may be convicted for indecent assault. Evidence
is not admissible to prove that the boy is in fact physically capable of
committing rape. This presumption proceeds upon the grounds of impotency
rather than want of discretion.
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However, the infant may be a principal in the 2nd degree, as aiding and
assisting in the offence. So too if he has a mischievous discretion; able to
know what is good from what is evil, especially at the time the offence is
committed.
Can a male under 14 be convicted of an attempt to commit rape? There is

conflicting dicta. See R v. Williams. But Smith & Hogan submit that, in
principle, he should not be so-convicted.
Can a woman commit rape? Only as a principal in the 2nd degree; Ram v. Ram;
aids and abets the commission of rape.
A woman can also be an accessory before the fact to the rape of another
woman.
Can a Husband be guilty of the rape of his Wife? As a general rule, a

husband cannot be guilty of the rape of his wife because, upon marriage, the
woman has given consent for sexual intercourse. In R v. Miller, it was held
that though the husband has a right to sexual intercourse, he was not
entitled to use force or violence in order to exercise that right. Any assault
is chargeable under S.47 of the Offences against the Person’s Act.
In R v. Morgan, it was held that a husband may be guilty as a principal in the

2nd degree by encouraging the rape of his wife. Equally, he may be convicted
of rape while she does not give her consent during the existence of a
separation order. Or when there is a decree nisii or when the marriage is a
nullity as pronounced by a court of competent jurisdiction.
Carnal Knowledge
To constitute the offence of rape, there must be a penetration; slightest

penetration is sufficient. Not essential to rupture the hymen. In the case of
R v. Russel, it was held that it is not necessary to prove the actual emission
of seed (semen) in order to constitute carnal knowledge. Carnal knowledge is
deemed to be complete on proof of penetration only; S.3 of the Offences
against the Person’s Act 1861. S.3 reads “whenever…it may be necessary to
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prove carnal knowledge, it shall not be necessary to prove the actual

emission of seed; the offence is complete if the penetration is complete.”
Abortion
Abortion is governed by S.58 of the Offences Against the Person Act 1861.
S.58 simply says that every woman being with child, who with intent to
procure her own miscarriage, shall unlawfully administer to herself any
poison or other noxious thing or shall unlawfully use any instrument or other
means whatsoever with like intent and whosoever will intend to procure the
miscarriage of any woman whether she be or be not with child shall
unlawfully administer to her, or cause to be taken by her, any poison or
noxious thing or shall unlawfully use any instrument or other means
whatsoever with the like intent, shall be guilty of a felony and being
convicted thereof, shall be liable to imprisonment for life.
The offence can be committed in 2 ways -
A) Where a pregnant woman who with intent to procure her own miscarriage,
unlawfully administers to herself, any poison or noxious thing or unlawfully
uses any instrument or other means.
B) Where any other person, with intent to procure the miscarriage of any
woman, whether or not she’s pregnant, unlawfully administers to her or
causes to be taken by her, any poison or noxious thing or unlawfully uses any
instrument or other means.
In neither case is miscarriage required to result from the conduct of the

accused. If you try and fail, the offence is made out.
Distinction between Woman and another Person
The woman who tries to procure her own abortion can only be guilty, if she is
in fact pregnant. If she is not but believes that she is, then the offence is
not made out.
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In the case of another person, it is irrelevant if the woman is pregnant or

she believes that she is provided the intent to procure the miscarriage can
be proved.
When someone else administers, the person can be guilty merely by causing
the substance to be taken by the woman.
For poison, it means any recognized poison, even if the quantity is small.
For noxious, thing, it is not a recognized poison but one which is harmful in
the dosage in which it is administered but is harmless when taken in small
quantities.
For any other, this is widely used meaning medical interference etc.
Spicer v Marlow; “It is irrelevant that unknown to the accused, that it was
incapable of procuring an abortion provided one of those things is
administered or used.”
Price; although in most cases, women use consenting parties, offense also
covers non-consensual conduct.
S.58 remains good law in Sierra Leone. It does not take into account medical
advances which may mean that an abortion may have to be performed to save
a life.
S.58 is very seldom used except for when the mother dies.
S.59 states that whosoever shall unlawfully supply or procure any poison or
other noxious thing, or any instrument or thing whatsoever, for the purpose
of being used with intent to procure the miscarriage of any woman shall be
guilty of a misdemeanor and being convicted thereof shall be liable to be
kept in penal servitude.
R v. Osbourne, (1919) Judgment of Justice Rowlett.
R v. Whitechurch, (1890) Conspiracy.
R v. Sockett, (1908).
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R v. Buck & Buck
R v. Bourne
Bigamy
S.57 of the Offences Against the Person Act 1861
S.57 is committed when a person (a) being married (b) goes through a legally
recognized marriage with another person and (c) where the original spouse is
still living. (d) Unless (i) the 1st marriage has been legally dissolved by divorce
or (ii) the 1st marriage has been declared void by a court of Competent
Jurisdiction or (iii) the original spouse has been continually absent for a
period of 7 years then last past from the person marrying a 2 nd time and
shall not have been known by such person to be living within that time.
(a) “Being Married” - The 1st marriage. For the offence of bigamy, the 1st
marriage must have been valid; not void ab initio, and that marriage was still
subsisting in the sense that the marriage has not been terminated by death,
divorce or by being declared a nullity.
The Marriage Itself - Is it confined to a monogamous marriage? Or in our

jurisdiction (monogamous, polygamous etc.), would such a provision be
applicable in Sierra Leone?
This arose in the case of Sarwan Singh; according to this case, a valid
polygamous marriage is not such a 1st marriage for the offence of bigamy.
So, therefore, a 1st marriage must be monogamous.
(b) The ceremony must have been legally recognized within the particular
laws of that country. It must be a form of marriage known to and recognized
by the laws of where that marriage was celebrated.
(C) The original spouse was still living at the time of the 2 nd marriage.
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Proviso - Unless the 1st marriage has been legally dissolved by divorce. So, it
is a good defence to bigamy that the 1st marriage has been dissolved by a
decree absolute; R v. Wheat & Stocks.
Absence for 7 Years etc. - it shall be conclusive that the original spouse has
(i) Been absent continuously from his/her spouse during the 7 years
preceding the 2nd marriage.
(ii) And had never been heard of for those 7 years; R v. Tolson.
It will be a defence if the marriage has been declared to be a nullity. E.g. if

you are unable to consummate the marriage.
Mens Rea - If you look at the case of Tolson, the question has been asked
whether this offence of bigamy is one of strict liability or one that requires
mens rea.
In the leading case of Tolson, D believed on reasonable grounds that her

husband had been drowned at sea and, more than five years later, married
again reasonably believing herself to be a widow. By a majority of nine to
five, the court held that she was not guilty, but only because her belief was
reasonable. The minority of five held that the offence was one of strict
liability, subject only to the statutory defence of 7 years absence.
This case can fairly be regarded as one of statutory construction, laying
down no general principle. The dicta - much cited in subsequent cases - that
the common law allowed a defence only if it was honest and reasonable must,
since Morgan, be regarded as unsound.
One unfortunate aspect of the discussion of the bigamy cases in Morgan is

that it suggests a very strict approach to the problem of the implication of
mens rea into statutory offences. The suggestion is that where a statute
uses no words expressly importing mens rea, the mental element which the
court will require the prosecution to prove will be minimal - to go through a
ceremony of marriage, to have sexual intercourse, etc. and that it will then
be for the accused to introduce evidence sufficient to raise a doubt
whether he did or not, on reasonable grounds, have a belief inconsistent with
some material element in the actus reus. This approach may work with
“quasi-criminal”, “regulatory” or “welfare” offences but it should have no
place in serious crimes.
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A better approach is that in Westminster City Council v. Croyalgrange Ltd,

where Goff LJ said, “The ordinary principle that, where it is required that
an offence should have been knowingly committed, the requisite knowledge
must embrace all the elements of the offence.” The ordinary principles of
mens rea require intention or recklessness as to all of the elements of the
actus reus unless that is excluded expressly or by implication; and the more
serious the crime, the more reluctant should the court be to find an implied
exclusion.
Forgery
Forgery is a misdemeanor at Common Law and became statutory in the

Forgery Act of 1913. By S.1 (1) of the Forgery Act 1913, Forgery is the
making of a false document in order that it may be used as genuine.
S.1 (2) See a, b, c
a) A document is false if the whole or any material part purports to be made

by or on behalf or on account of a person who did not make it, or who made it
or on account of a person on whose authority it purports to be made or in
case of any…is false therein.
S.1 (3) - For the purposes of this Act:

a) It is immaterial in what language the document is expressed or in what…
b) Forgery of a document may be complete even when the document when
forged is incomplete.
A document is false if it pretends to be made by someone who did not make

it or did not authorize it. In Mead v. Young, it was a forgery when a Bill of
Exchange made payable to one Henry Davies got into the hands of the wrong
person.
A document is also false if at the time when it was made or the place it was
made, if either is material, and it is false. In R v. Riley, a telegraph clerk,
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after learning the result of the horse race, stated falsely at the post office,
in a telegram, that it was handed in before the race.
A document is also false if material alterations have been made on the

document.
What is a Document? Since there is no definition in the Act itself, we can

look at decided cases. In R v. Closs, it was held that a painting is not a
document. A dealer had painted the name John Linnell on a painting which
was not by that artist. He was not guilty of Forgery, as the signature could
not be regarded as writing. Cockburn C.J. said, “A forgery must be some
document or writing but this was merely an indication of a mark put on the
painting.”
In R v. Smith, the accused had sold baking powder in packets wrapped in

printed papers designed like those used by well-known manufacturers. He
was held not guilty of forgery.
In substance, however, one would say that a document is anything in writing.

In order that writing should qualify as a document, it should communicate a
human statement from a human mind. E.g. the reading of a thermometer, or a
weighing machine, is not such a communication and, therefore, not writing.
So, not all writing will qualify as a document. E.g. a script written in an
examination. If somebody writes the exams for you, will that be a forgery?
It will merely be an expression of the person’s knowledge. However, the
signature of the candidate on the script is the work of the person whose
name is signed on that script, thus constituting a document for the purposes
of the Forgery Act.
The Forging/Forgery
It has been decided that it may be a forgery even merely to anti-date an

instrument. When an instrument is deemed to have been executed at a date
different from that which it was to be executed.
In R v. William Ratson & Samuel Ratson, on the 7th May, 1868, William
Ratson conveyed his land absolutely to one Mr. J. Gradiner. After the
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execution of the conveyance, Gradiner entered into possession of the land.

Subsequently, on April 26th, 1969, Samuel Ratson, the sone of William
Ratson, produced a deed dated 12th March, 1969, purporting to be a demise
of the same land for 999 years, with effect from the 12th March, 1968. It
was executed by William Ratson and Samuel Ratson but was executed in May
1968. The date was of the essence of this deed, as a fraudulent date was
inserted and so the deed was a false deed.
This principle has been followed in S.1 and this is the common law position.
In R v. Bateman, it was held that it may be a forgery to make a writing in

the name of an imaginary person.
R v. Lewis concerned the forgery of a Power of Attorney.
It may even be a forgery to write your own signature such that it may be
taken to be that of another person. See Mead v. Young.
In R v. Martin, it was held that to sign a cheque in a false name does not
make it a false document if one gives the cheque as one’s own and one is not
pretending to be some other person, the person who prepared the cheque.
The accused bought a pony and cart from a dealer to whom he was well-
known. In the dealer’s presence, the accused made out a cheque and signed it
in a false name - William Martin. He was called Robert Martin. The cheque
was dishonored at the bank. He was convicted but it was later quashed on
appeal. The CA said that the proper charge would have been Obtaining by
False Pretences.
Mens Rea of Forgery - Where the document is a private document, proof of

intent to defraud is required. But where the forgery is that of a public
document, the mens rea may simply be intent to defraud or deceive. The
terms ‘Intent to Defraud’ and ‘Intent to Deceive’ were defined by Buckley J.
in Re London Globe Financial Corporation on page 732.
Under S.6 (1) of the Forgery Act, it is an offence to utter a forged

document, meaning to cause a document to go into circulation.
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By S.6 (2), the person is regarded as ‘uttering’ when he uses, offers,

publishes, delivers, disposes of, tenders in payment or in exchange or puts
off the forged document.
There must be the mens rea of knowing it to be forged; the person must
know that the document is forged. See R v. Harris.
Would publishing a Photostat copy of a forged document amount to ‘uttering’

that document?
Perjury
S.1 of the Perjury Act 1911 is committed when any person lawfully sworn as a
witness or as an interpreter in a judicial proceeding willfully makes a
statement material in that proceeding which he knows to be false or does
not believe it to be true.
Lawfully Sworn - Sworn is not limited to religious oaths and may include a
legal affirmation or declaration; S.15 (2).
Is there any fixed age at which one can be legally sworn? Particularly in
respect to children? Can they give unsworn statements? The child must
understand the nature of telling the truth.
Can a child under the age of 7 commit perjury? No, because of the
presumption of doli incapax.
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Other elements of the actus reus - Judicial Proceedings - look at S.1 (2) of
the Perjury Act 1911; perjury can only be committed in judicial proceedings
and these judicial proceedings are not just confined to proceedings in a
formal court, there could be judicial proceedings where the person is
lawfully empowered to receive evidence on oath; S.1 (2).
The 3rd element of the actus reus is that the false statement must be
material to the proceedings. The statement may be a fact or opinion
evidence; evidence as to the speed of the car in a trial for breaking traffic
laws.
Note that the accused may be liable even though the statement he made was
true, provided that he believed it to be false or was reckless as to whether
it was true or false because the intention is to mislead.
The False Statement must be Material - A statement is only material if it is

so irrelevant that it is no longer made by the person in the character of a
witness in those proceedings. Statements are material if they relate to the
outcome of the proceedings or the credibility of the witness.
Mens Rea
“Willfully knows to be false or does not believe to be true” - Mens rea is

necessary which may be (i) an intention in making the false statement or (ii)
knowledge or belief that the statement, if false or is reckless as to whether
it is true or false.
Subornation of Perjury - S.7 provides that the successful procuring of

perjury is punishable as perjury.
Note the concept of corroboration which is required as a matter of law. By

S.13, a person shall not be liable to be convicted of perjury solely upon the
evidence of one witness as to the falsity of any statement alleged to be
false. I.e. there must be two (2) witnesses corroborating each other but it is
sufficient if the evidence of one witness is corroborated by the confession
of the accused or circumstantial evidence.
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Criminal Law LS - Law school lecture notes

criminal law (Fourah Bay College)

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While it is harmful for the individual to be assaulted or robbed, that

What Particular Conduct is Prohibited by the Criminal Law? - It all depends

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Why does the law insist on an actus reus as a prerequisite of Criminal

First, the requirement of a specific act provides some protection against

A mere agreement to commit a crime is regarded as a significant

Mere words of encouragement/instruction/command/incitement are

What exactly is an actus reus?

The actus reus of every crime is different.

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Conduct Crimes - The external elements require a prohibited conduct. E.g.

Conduct crimes provide a good illustration of the criminal law punishing

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E.g. in Larceny, it requires that the property belongs to another. In the

Result crimes require that an additional element is established; namely that

Such were the circumstances in the case of R v. White; it appeared that D

Putting these elements together, it is common to find an actus reus

Causation is part of the actus reus requirement. There may be a situation

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crimes of strict liability; where no mens rea need be proved as to one or

The act must be voluntary. A fundamental requirement for criminal liability

What constitutes a Voluntary Act?

The following academics and philosophers attempted to define a voluntary

John Austin, in his lecture on Jurisprudence, says an act is “A voluntary

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The following exclude voluntariness and give rise to the defence of

2) Reflex Actions - These are involuntary actions. In the case of

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3) Concussion - A blow to the head may cause blackout or confusion. A

4) Unconsciousness - Where the unconsciousness is normal, for example, a

Where the unconsciousness is said to result from what is termed a euro-

5) Hypnosis - There is much scientific uncertainty as to its effect. There

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Where there’s an Omission

Breach of Duty to Act - A crime can be committed by omission. But there

There are Four (4) Recognized situations:

1) Duty arising out of contract.

1) Duty arising out of contract - This was recognized in the case of

2) Duty arising out of a relationship - The existence of a close relationship

3) Duty arising out of the assumption of care of the helpless and

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4) Duty arising from the creation of a dangerous situation - In

e) What is the general principle for which Miller is the authority?

Status Offences (State of Affairs)

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In Winzar v. Chief Constable of Kent, the police had been called in to

In Strowger v. John, the defendant was convicted “for failure to display a

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was charged and convicted of contravening the Immigration Ordinance 1952

Another American case was that of Powell v. State of Texas, which

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impose criminal liability in the absence of conduct or thought and this is

What is objectionable about a conviction for status offences is that in such

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1) Where there is no physical participation by the accused person - In this