FIRST SEMESTER

ACTUS REUS

INTRODUCTION
The fundamental principle governing criminal liability in the English
jurisdiction is embodied in the phrase ‘actus non facit reum nisi men sit
rea’, which means that the act in itself does not constitute guilt unless
done with a guilty mind. This means that the prosecution must show that
the defendant had actually committed the offense in question and had
done so with the requisite mental element required by the law, sometimes
referred to as the guilty mind. It is always important that the intent and the
act be present to constitute a crime. This is known as the coincidence and
concurrence of the actus Reus and the mens rea. An accused must
possess that mens rea when performing that act or omission in question
and it must relate to the particular act or omission committed. The
defendant’s mens rea need not last beyond the moment at which he
causes the actus reus to occur. The accused will not be excused merely
because he abandons it before the actus reus is complete or he repents of
the act.

In Jakeman (1983), Jakeman checked in suitcases containing drugs into a

series of flights heading for England. However, in transit in Paris she
abandoned the said suitcases allegedly claiming that she no longer
intended to import them but she did nothing to stop the said importation
and so the cases were sent to England where the drugs were discovered.
The Court held that Jakeman’s loss of mens rea came too late to prevent
her from being guilty of an importation of drugs offense. The major
implication of this doctrine was clearly stated by Lord Goddard CJ. In the
case of Harving v Price 1948, 1KB 695, it was stated that “It is of the
utmost importance for the… liberty of the subject that a Court should
always bear in mind that unless a statute either clearly or by necessary
implication rules out mens rea as a constitute part of a crime, the Court
shall not find the man guilty of an offense against the criminal law unless
he has a guilty mind.”

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Before an accused in a particular crime is convicted, it is always
necessary for the prosecution to prove the following:

i. The course of action brought about a certain act, omission, or

state of affairs.

ii. This act if not a strict liability offense was accompanied by

criminal intent.

iii. The prosecution must prove these elements beyond reasonable

doubt.

D EFINITION AND N ATURE OF A CTUS R EUS

The actus reus is basically the physically prohibited act but it is
sometimes called the fault element of the act. This means that the act
engaged in should not be engaged in or is prohibited by law. The actus
reus includes all the elements in the definition of a crime except the
mental element. The main reason why it is important for the prosecution
to establish the element of actus reus as a basis of criminal liability is that
the mere intention or wishes do not generally create criminal liability.
Granville Williams in his book titled ‘Criminal Law, the General Path of
1961’ quoted an English judge who said “the thought of man is not triable,
for the Court...knoweth not the thought of man”’ Lord Mansfield in the
case of Scoeffield (1784) said “so long as an act rests in bare intention it
is not punishable by law”. Therefore, as a general rule it requires a positive
act, that is, in the sense of a muscular movement as in the case where for
instance someone stabs another with a knife. Exceptionally, a proof of
omission will suffice as an actus reus when the law imposes obligations
referred to by the law which is legal and distinct from moral obligations.

P ROVING AN A CTUS R EUS

It is an established principle in criminal law that criminal law does not
seek to punish people for their evil thoughts, wishes or intentions.
Therefore, if an individual has the evil thought or intention for a particular
crime or particular offense but fails to bring about the actus reus, he is not

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guilty of committing that offense. The major case in line with that principle
is Deller 1952 36 CRAPPR 184. The facts are P wanted to sell a car to D
and accepted D’s car in part exchange, after D informed him that the car
was free from internal incumbencies. D believed that this representation
was false as she had previously executed the document with a financial
company which purported to be agreeable to a higher purchase
agreement of the car. Was the agreement valid? The car was not free from
incumbencies and D applied to P. However, the agreement which was in
reality a loan on the security of the car was not valid as it was not
registered as required by the Bill of Sale Act 1878 and therefore this
representation was in fact true. The Court of Appeal quashed this
conviction as the agreement was void and not legal and thus the car was
unencumbered. There were no false pretenses or false representations.

C ATEGORIES OF A CTUS R EUS

Actus reus is usually categorized into two types of offenses:

1. Result crime

2. Conduct crime

A result crime prohibits particular consequences not the conduct which

ensues from the conduct on the part of the accused. For instance, in the
case of murder, it must be shown that the defendant’s conduct caused the
death which is the result of conduct. The law is only interested in the
result, that is, the end product.

A conduct crime prohibits conduct regardless of consequence. Therefore,

the mere conduct of the accused may be enough to show that the actus
reus has been committed. A classic example of this is perjury that is, lying
under oath which is committed as soon as the defendant makes a
statement which he believes to be untrue. It does not matter whether he
wants the Court to believe him, or whether they will in fact believe him, or
whether or not the statement will help the case.

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TYPES OF CRIME

POSITIVE ACT: VOLUNTARY AND INVOLUNTARY ACT

A voluntary movement of my body or a movement which follows volition
is an act. An involuntary movement which is the consequence of certain
diseases is not an act. The human act is divided into two elements:
• The desire of a muscular movement
• The movement itself
Therefore, there can be no liability for a harm done in 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. Lord
Denning in the case of Bratty v Attorney General for Northern Ireland 1963
AC 386, stated as follows: “No act is punishable if it is involuntary and an
involuntary act means an act which is done by the muscle without any
control by the mind...Requirement that it should be a voluntary act is
essential not only in a murder case but in every criminal case.”

The vast majority of criminal offences require acts or omission on the part
of the accused and these acts or omission must be ordinarily willed. This
is not only because he may lack the requisite mens rea for that offence; it
is because involuntary movement cannot ordinarily constitute the actus
reus of any offense, not even one of strict liability. Ashworth in his book
'Principles of Criminal Law' states that “it is not merely a denial of fault; it
is more a denial of authorship...In these circumstances it is fair to say that
this was not thee's act but something which happened to thee”.

STATE OF AFFAIRS OFFENCES-STOP

In most cases, however, the requirement that there must be an act that
involves voluntary conduct has caused partial problems in the context
known as state of affairs offences. A crime in this respect is defined in
such a manner that no conduct is required, but the crime is committed

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when
o a certain state of affairs exist or
o simply being in a particular place where the state of affairs has been
declared to be wrong or
o the defendant is in a certain condition or is at a particular status not
by his will.
This means that voluntary conduct need not always be proved in cases
where there is charged an offense in which the actus reus takes the form
not of a prohibited positive act or omission but a prohibited state of affairs.

State of affairs offences are usually referred to as situational liability

offences or absolute liability offences or crimes committed, although
there is no voluntary act or omission. There may be no need for any will or
voluntary muscular movement but rather what is sufficient is that a
specified state of affairs is proved to exist. The main case in court is
Larsonneur (1933), 24 Criminal Appeal Reports 74. A French lady was
permitted to enter in to the United Kingdom subject to certain conditions
endorsed on her passport, which included a condition that required her to
depart the UK not later than a certain date. The police investigated and
concluded that she had visited the UK for the purposes of contracting a
marriage of convenience. They prevented this marriage and ordered her to
leave and never return to the country. She travelled to Ireland instead of
returning to France; she was however brought back to the UK and handed
over to the British police, detained, charged and later convicted under the
Aliens Order of 1920 for 'being an alien to whom 'leave to land' in the UK
had been refused'. It was argued on her behalf that she had returned to
the UK against her will but the Court of Appeal held that the
circumstances under which she was returned were immaterial. What
mattered was that she was found in the UK on the occasion in question.
The three elements to be present are:
• the alien must land in UK
• such landing must be contrary to the order
• the alien having so landed in the UK must be found therein
The prosecutor for the crown, J.F Eastwood, stated that “the whole point

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is whether the alien was found within the UK, how she got here makes no
difference”. The appeal was therefore dismissed.

Another case in regards state of affairs offences is Winzar v Chief

Constable of Kent (1983). The defendant was brought to the hospital by
an ambulance where the doctor discovered that he was merely drunk and
nothing more. He was therefore asked to leave the hospital. He however
failed to do so and he was found sleeping in the corridor. The police was
called, and they removed him from the hospital to the highway where their
vehicle was parked. They concluded that he was drunk and he was
arrested and charged with being found drunk on a highway contrary to the
Licensing Act 1872. Upholding the conviction, Goff LJ pointed out that the
position must be different if the police were to drag a drunken person from
his own bed and on to the street before charging him with being found
drunk on the highway that would undoubtedly involve an abuse of persons.
He stated that "In my judgment looking at the purpose of this particular
offense it is designed to deal with the nuisance which can be caused by
persons who are drunk in public places. This kind of offence is caused
quite when a person is found drunk in a public place or highway."

17th December 2013

OMISSION

I NTRODUCTION
Most cases are commissions, being a positive act rather than omission
which is quite unpopular. Under omission there are three elements:
o there must be a duty to act;
o there must be a breach of said duty; and
o a person suffered from the breach of duty.
In English law, there are particular persons with a duty to act; but in
French law, everyone has a duty to act as long as there is a need to act.
There are five areas where a person is under a duty to act and if a person

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breaches that duty to act and another person suffers as a result, the
person will be liable as if he committed the equivalent positive act. Duty to
act is imposed on you by the law and the performance of the duty has to
do with the person's capability to perform that duty.

Most crimes require the accused to engage in some positive act before it
can be held to be criminally liable. Therefore, the rule is that ordinarily
there can be no liability for failing to act. There are however limited
exceptions to this rule which the law imposes criminal culpability for
failing to act. This is done where the law specifically imposes a duty upon
an individual to act. This means that an actus reus may consist in a failure
to take action where action is required by the law. Thus criminal liability in
these cases is completely dependent upon the existence of a duty to act
and the effect when such duty is breached.

Various acts of parliament impose duties to act on individual in certain

circumstances. As a result of such duties, a person who finds himself in
such certain circumstances and fails to commit that duty will commit an
offense.

TYPES OF DUTY

D UTY A RISING O UT O F C ONTRACT A ND P UBLIC D UTY

An individual may in a way be criminally liable through failure to discharge

his official duties or contractual obligations. In the case of contractual
duties they may not only be owed to parties to the contract but to all other
persons involved. There may be a specific duty to act laid down in the
person's contract. See Pittwood (1902) 119TLR35 where P was a railway
employee who was employed to operate a level crossing on a railway. He
had failed to close the crossing gate when a train had signaled as he was
away from the control room. A passing train hit a vehicle crossing the
track and the driver of the vehicle was killed. The accused was found

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guilty and was convicted of gross negligence, man slaughter, after the
judge made it very clear that a man might incur criminal liability from a
duty arising out of contract. Therefore, the verdict was mainly based on
his breach of contractual duty to protect users of the crossing. His
argument that his contractual obligations were only to his employers and
therefore he had no duty to the public was dismissed as he was paid to
keep the gate shut and protect the public.

Also a failure to perform a public duty may make the accused criminally
liable as established by the Court of Appeal in the case of Dytham (1971)
QB722 where a police officer who was on duty in uniform close to a
nightclub stood by and watched as a man was dragged out of the club,
beaten to death. He left the crime scene telling onlookers that he was
going off duty without either stopping the incident, calling for civilian or
police help, or summoning an ambulance. He was charged with the
Common Law offense of neglecting to perform his duty in keeping the
peace and protecting the victims or arresting his killers and bringing them
to justice. His defense and grounds of appeal after conviction was that
there was no such offense without a positive act. The Court of Appeal in
upholding its conviction relied mainly on a passage in Stephan's Digest of
Criminal Law which stated as follows: “Every public officer commits a
misdemeanour, who willfully neglects to perform any duty which he is
bound to perform provided that the discharge of the duty as such is not
attended with greater danger”’.

D UTY A RISING O UT O F S PECIAL R ELATIONSHIP

The law imposes a duty on people who are in special relationship. The
most common example of a duty to act under this category is where there
is close personal relationship. They must act on behalf of the others to
protect them. For instance, parents are under a duty to protect their
children, husbands are under a duty to protect their wives. A case in point
is Gibbins & Proctor (1918) 13 Criminal Appeal Report 134, where G was
the father of several children including a seven year old daughter, Nellie.

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He had separated from his wife and was living with a mistress, P. They
kept Nellie away from the other children and deliberately starved her to
death by withholding food from her. They however framed up a story that
Nellie had gone away, when in actual fact they had buried her in the
backyard. They were charged and convicted of murder and the Court of
Appeal upheld their conviction. In the case of the man, he had breached
the duty parents owed to their children. On the other hand the mistress, P,
was convicted on the fact that she had undertaken duty by collecting
money to buy food and undertaken a duty as a mother towards the child.
In the case of Downs (1875) 13COXCC111, a parent being member of a
religious group called the ‘Peculiar People' who believed in prayer rather
than medicine, failed to call a doctor for his child who died.

D UTY A RISING F ROM T HE A SSUMPTION O F C ARE F OR A NOTHER

A duty will arise when a person undertakes to care for another who is
unable to care for themselves as a result of age, illness, mental illness or
infirmity. This duty overlaps with the duty imposed by special relationship
but is wider in that the law will impose liability in any case where the party
has relied upon the defendant to take care of him and the latter then fails
to help. Therefore if a party assumes responsibility towards another then
he or she becomes under a legal duty to act. This duty will remain and last
until he or she hands it over to someone else. This duty was recognized in
the case of Nichols (1874) 13 COXCC75. In the case of Instan (1893)
1QB450, the defendant lived with her 73 years old aunt who became very
ill and unable to take care of herself or summon help. Only the defendant
knew of her state but gave her aunt no food and refused to call for
medical help even though she continued to eat her aunt's food. D was
convicted of manslaughter on the basis that by continuing to live with her
aunt, an implied duty was imposed upon her to care for the aunt, of which
she had willfully and deliberately unperformed.

This principle laid down in the case of Instan was applied and extended in
the case of Stone & Dobinson (1977) 1QB354 where it was held that a

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duty to care may easily exist although difficult to execute. The facts are
Stone who was 67 years old was partially deaf, nearly blind and of no
intelligence. He was living with his housekeeper who was his mistress,
Dobinson, who was described as ineffective, inadequate and of low
intelligence.

7th January 2014

Stone's younger sister, Fanny came to live with them. Fanny was said to
be very obsessed with putting on weight, and becoming bed-bound she
therefore refused to eat and developed serious infections. She became
terribly sick and her condition was very bad; she was confined in bed. The
couple made a half-hearted attempt to obtain help but failed to obtain
proper medical aid. It was said that they were unable to use the telephone
and a neighbor was unsuccessful in getting a doctor. No one was
informed of Fanny’s condition and she died. The doctors’ reports indicated
that she had been in need of urgent medical treatment. Stone and
Dobinson were convicted of manslaughter. The decision was based on
the fact that they had taken Fanny into their home and assumed a duty of
care for her and had been grossly negligent in their performance of that
duty, and when they were incapable failed to relinquish that duty. Lord
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:
o The defendant undertook the care of a person who by reason
of age or infirmity was unable to care for himself or herself.
o The defendants were grossly negligent with regards to their
duty of care.
o By reason of such negligence, the person died.”

D UTY A RISING F ROM T HE C REATION O F A D ANGEROUS S ITUATION

It is possible under a positive act as well as under omission to create a

dangerous situation. What is important when done as a positive act is that
it must be done with the requisite mens rea. In omission, there is no mens

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rea, the act is totally an accident.

An individual who without the necessary or requisite mens rea does an act
which creates a dangerous situation through his own fault is under a duty
to take reasonable steps to avert that danger and if it fails may be
criminally liable. In the case of Miller 1983, a vagrant squatter went to
sleep in an abandoned house. He had fallen asleep whiles smoking and
his cigarette set fire to the mattress. The flames woke him but instead of
putting out the fire, Miller merely moved to another room and went back to
sleep. The house caught fire and 800 pounds sterling damage was caused.
Dismissing his appeal against conviction, the House of Lords held that a
person could commit the actus reus of arson, 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 powers to prevent or reduce the damage to the
said property. Therefore, he would be in breach of duty to take such steps
which resulted from his accidental act. Lord Diplock stated as follows:”I
see no rational ground for excluding from conduct giving risk to criminal
liability, conduct which consists of failing to take measures that lie within
one’s power to counteract a danger that one has oneself created if at the
time of such conduct one’s state of mind is such as constitutes a
necessary ingredient of the offense.” In the case of Fagan v Metropolitan
Police Commissioner (1969) 1QB439, the defendant accidentally parked
his car with a wheel resting on a policeman’s foot. He then came out of
the vehicle and went into a nightclub without getting his car off the
policeman’s foot. It was held that the defendant had assumed a
responsibility to get off the foot; he was therefore under a duty to act. In
the case of Khan 1988, the Court of Appeal applied the Miller principle in
the context of manslaughter. The appellant supplied a girl with heroin on
which she accidentally overdosed, but he then left her to die.

D UTY T O P ROVIDE M EDICAL T REATMENT

Doctors and hospital authorities have a duty to provide medical care for

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their patients and failure to discharge that duty may sometimes lead to
culpability. Although this duty may in most cases be terminated if the
patient refuse to accept medical attention. Refusal of treatment is not
always decisive in such cases. In a case wherein a patient is incapable of
giving consent, treatment may be provided if it is in his best interests. In
the same vein, it must be discontinued if discontinuing is in his best
interests. Even in the case of adults the Court may sometimes hold that a
refusal of consent to treatment is based on a lack of capacity. In the case
of Re: T(adult refusal of treatment) 1993, it was held that public doctors
must provide treatment in accordance with the patients best interests. In
the case where there are acute emergencies, and the doctors have no time
to be directed by the Court, they may need to act without consent or Court
order. Therefore, the general rule is that if a patient is not communicating
his wishes, the doctor’s normal view is to do everything reasonable to
keep the patient alive; where he is in doubt, he needs clarification from the
Court which makes it possible in certain circumstances for a doctor to be
released from this duty as was established by the House of Lords in the
case of Airedale NH Trust v Bland 1993. In this case a patient had
survived for three years in a persistent vegetative state after suffering a
terrible brain damage with no prospect of recovery ever or even slight
improvement. He was able to breathe normally but was kept alive only by
being fed through tubes. The NH Trust sought a declaration from the
Court on whether it was lawful for doctors to stop giving life supporting
medical treatment including artificial feeding, when it was certain that by
discontinuing the treatment it will cause the death of the patient within a
matter of days. The House of Lords held that treatment could properly be
stopped in such circumstances because the best interests of the patient
did not involve him being kept alive at all costs and therefore the doctor
would not be acting unlawfully in so doing.

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9th January 2013

CAUSATION

INTRODUCTION
The doctrine of causation in criminal law comes into play when the
definition of an actus reus requires the occurrence of certain
consequence or result. Therefore, in order to establish whether an
accused is guilty of result crime, it is pivotal and always necessary that it
was the conduct of the accused whether by his act or omission, that
caused those consequences to occur.

Against this backdrop, the prosecution cannot succeed if they fail to prove
that it was the conduct of the accused that brought about those
consequences. For example, a prosecution dealing with a murder case
must always prove that the act (for example, stabbing) caused the death
of the victim. If the death came about solely or independently through
some other intervening cause, then the crime is not committed even
though all the other elements of the actus reus and mens rea of the crime
are present. The accused, however, may be guilty of some other offenses
such as attempt. On the other hand, when the original act of the accused
was still operating and it is a substantial cause of death, the accused is
said to be criminally liable. This is what is known as the chain of
causation.
In the case of strict liability offenses which are conduct crimes, causation
may be established even though the accused did not intend to or have
knowledge of the act or was negligent thereto. Simply put, in order to
establish whether a defendant can be guilty of a given result crime, the
prosecution must first establish a factual link (factual causation) between
his conduct and the result or consequence he is alleged to have caused.
Once this has been established, a second and more important, technical
and difficult question must be considered which is whether that conduct
was a sufficient cause in law to lead to culpability. This is usually referred
to as the question of imputability or legal causation; it is said to be the

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allocation of responsibility of what has occurred.

TYPES OF CAUSATION

F ACTUAL C AUSATION
Factual causation is most times referred to as the ‘but-for’ principle; the
conduct of the accused must be the cause of the prohibited consequence.
Therefore, what is needed in a criminal case under factual causation is
simply to establish a proposition that the defendant’s conduct must have
been a cause of the prohibited consequence in the sense that without it
the ultimate harm would not have occurred; this is known as the ‘sine qua
non’ rule or the ‘but-for’ causation. As a result it must be established that
the alleged result would not have occurred at the time or in the way it did
but for the act or culpable omission of the accused. If the consequence or
result occurred because of some other cause, then the offense would not
be said to have been committed even though all the other elements of the
actus reus are present and the accused had the necessary or requisite
mens rea.

In the case of White 1910 2 KB, W put poison in his mother’s drink with the
intention of killing her. In the morning she was discovered dead with the
glass containing the poisoned drink and having drunk one-fourth of it. The
medical evidence adduced showed that she had died not out of poison but
out of heart failure. W was acquitted of murder and convicted of
attempted murder.

The only qualification to this basic rule involves complicity or joint venture
under which a defendant may be liable for encouraging or assisting the
principal offender even where it is proved that his conduct made no
difference to the outcome; it did not matter whether or not he was present
at the scene.

L EGAL C AUSATION
The fact that factual causation has been established does not in any way

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mean that legal causation has been established. Therefore, it is a principle
of law that not every cause in fact is a cause in law. As a result not all ‘but-
for’ causes are legal causes of an event. Legal causation which is a
narrower concept is closely connected to issues such as responsibility
and culpability. It must be noted that after establishing factual causation,
the prosecution must establish legal causation before an accused can be
convicted. It is possible that there can be a wide range of ‘but-for’ causers,
however, the law in selecting those who are mainly responsible compels
the prosecution to prove that the conduct of the accused was

o ‘operative’ as was laid down in the case of R v Malcherek & Steel

1981;

o ‘substantial’ as was held in the case of Smith v Mitchell(1983);

o beyond the ‘de minimus range’ as was held in the case of

CATO(1976) or be a ‘proximate cause of the prohibited
consequence’; and must,
o as was held in the case of Pagett (1983), contribute ‘significantly’ to
the results.

CONDITIONS FOR THE ATTRIBUTION OF LEGAL CAUSATION

1. T HE C ONSEQUENCE M UST B E A TTRIBUTED T O A C ULPABLE A CT .
The culpable act must be responsible for or contribute to the
consequence. In the case where the culpable act of the accused to be
alleged to have done, did not in any way contribute the consequence, the
legal causation will not be established. For instance, a person may have
been grossly negligent in doing an act, he will not be held responsible for a
prohibited consequence which would have occurred in any way whether
or not he was negligent. In Dalloway 1847, the accused was driving a
horse and car without holding the reins which dropped, and in the course
of events an accident occurred which killed a girl. The judge directed the
jury that they could only convict the accused if they were satisfied that the

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accused could have avoided the accident had he been holding the reins
correctly. However, if they were satisfied that he could not have saved the
child by pulling it, they must acquit him. The jury acquitted him on the
basis that they were of the opinion the child’s death could not have been
avoided in any way and thus death of the child was not attributable to the
negligence of the accused.

2. T HE C ULPABLE A CT M UST B E M ORE T HAN A M INIMAL C AUSE O F T HE

C ONSEQUENCE .
It is always necessary for the prosecution to prove that the act of the
accused is more than a minimal cause of the consequence. For instance,
in a murder trial it is always necessary to prove that the act of the accused
caused significantly the death of the victim. It must however be noted
than this can be, even if it only accelerate the victim’s death. As a result,
an accused cannot put up a defense that the victim was dying from a fatal
visit or injury and would have died within a short time had the accused not
hastened his death. In the case of Adams 1957, Devlin J directed the jury
that it did not matter that the victim’s death was inevitable and that her
days were numbered. However, if the act of the accused caused only a
very trivial acceleration of the death of the victim, it may be ignored under
the ‘De Minimus’ principle, established in the case of Henningan 1971. In
this case H put up a defense that he was not guilty of causing death by
dangerous driving because another driver was to be blamed more than
him. The Court of appeal was of the view that as long as his contribution
was substantial, he could be held accountable. They then laid down in the
rule that even if just 20% of the blame could be attributed to H that will be
sufficient; it was therefore held that anymore than a diminished
contribution will suffice.

3. T HE C ULPABLE A CT N EED N OT B E T HE S OLE C AUSE .

The culpable act of the accused need not be the sole, direct or main cause

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of the crime. There can be other causes contributing to the consequence
by the acts of others or the victims themselves. In the case of McKennic
1992, the accused hit the victim over the head with a television set; these
injuries prevented doctors operating on the victim’s ulcer; the medical
cause of death was a bust ulcer. The accused was nevertheless held to
have caused the death of the victim.

i) The Act of Third Party: In the case of Benge 1865, the act of third
parties contributed significantly to the death of the victim. The
accused who was a foreman of a track laying crew misread the
railway timetable which resulted in the track being up at a time when
a train was due. The accused stationed a signal man with a flag 540
yards up the line although the rules provided for 1000 yards. The
driver was not keeping a good lookout and several people were killed
from the ensuing accident. The accused relied on the defense that if
the signal man had been in the correct distance and the driver had
kept proper lookout, there would have been no accident. The accused
was convicted of manslaughter on the basis that his conduct mainly
or substantially caused the accident; it mattered not that if the others
had not been negligent the accident would have been avoided.

ii) The Act of the Victim: The victim by his own negligence or fear may
cause or contribute to his own death. See Longbottom (1849) 3COX
CC439. Under fear, the victim’s response should be within the range
of responses which might be expected from a reasonable person
placed in the situation which he was. It must be proportionate to the
threat, that is within the ambit of reasonableness and the victim
must not be so daft as to make it his own voluntary act which will
amount to a novus actus interveniens and consequently break the
chain of causation. In the case of Watson 1989, a burglar entered a
house and verbally abused the elderly house owner who died of a
heart attack shortly afterwards. The burglar was held to have caused
the death of the house owner.

P a g e 17 | 17
 4. T HE A CCUSED M UST T AKE T HE V ICTIM A S H E F INDS T HEM :
This is also known as the eggshell skull rule. In criminal law, an accused
must ordinarily take his victim as he finds him. There have been cases
where the victim has refused medical treatment and consequently died.
Such cases have been treated as manifestations of the principle that one
must take one’s victim as one finds him in mind as well as body. For
instance, if the victim of the defendant’s assault is unusually vulnerable to
physical injury, as a result of an existing medical condition or old age, the
accused must accept liability for any unusually serious consequences
which would not have been fatal or grievous in a person of sound health.
It will still be attributable to the accused. In other words, if a victim has a
physical weakness or health condition which hastens death following
from, for instance in an assault the accused cannot claim a break in
causation merely because a healthy victim might not have died. In the
case of Martin 1832, Parke J stated as follows: ”it is said that the
deceased was in a bad state of health but that is perfectly immaterial as if
the prisoner was so unfortunate as to accelerate her death, he must
answer for it.”
The accused can be liable in a case where even though he does not
physically assault the victim, he so frightens him that a preexisting
condition exacerbated resulting in death. In the case of Hayward 1908, H
who was in a state of violent excitement was heard saying he would give
his wife something when she returns home. When she returned home, H
chased his wife into the road, threatening to kill her. She then collapsed
and died as a result of a long standing heart condition. Medical evidence
adduced states that she was suffering from an abnormal condition such
that an excess fear of violence against her might cause death, and the
husband’s exhibition of violence was enough to kill her. The presiding
judge stated: ”no proof of actual physical violence was necessary but that
death from fright alone caused by an illegal act such as threat of violence
would be sufficient”. H was convicted for manslaughter.

P a g e 18 | 18
This principle was extended in the case of Blaue 1975 1 WLR 1411, where
it was held that the principle was not limited to consequences following
from preexisting medical or physical conditions but also the victim’s
mental or psychological conditions or even religious beliefs. The facts of
the case are the accused stabbed a young girl piercing one of her lungs.
At the hospital, the doctor recommended blood transfusion and advised
that without a blood transfusion she would die. She refused to have a
blood transfusion as it was contrary to her religious beliefs as a Jehovah’s
Witness. Medical evidence indicated that she would not have died if she
had accepted the blood transfusion. The accused was convicted of
manslaughter, he appealed on the grounds that refusal by the girl to have
a blood transfusion was very unreasonable and had broken the chain of
causation. The Court of Appeal strongly rejected this argument and
upheld his conviction. Lawton LJ stated as follows: “he who inflicted an
injury which resulted in death could not excuse himself by pleading that
his victim could have avoided death by taking greater care of himself…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 the victim’s religious beliefs which
inhibited him from accepting certain types of treatment were
unreasonable. The question for decision is what caused her death; the
answer is the stab wound. The fact that the victim refused to stop this end
coming about did not break the causal connection between the act and
death.”
5. Novus Actus Interveniens
A novus actus interveniens known as a new intervening act is an
intervening act or event that takes over as the new operative or
substantial cause, relegating the original actions of the accused to the
status of mere historical background. This means that after the act of the
accused there was some act or event that occurred which had the
potential to break the chain of causation. Therefore, the accused would
not be liable for the substantive offense, if the new intervening act is so

P a g e 19 | 19
sufficient to break the chain of causation between the original act of the
accused and the eventual consequence. This can be even when his
original act still remains a factual cause, but for which the consequence
would never have occurred,as the intervening act may supplant it as the
legal cause for the purposes of criminal culpability. This intervening act
can be the act of a third party, an act of the victim or an unforeseeable
natural event known as the Act of God. There is however always a
problem with whether this new intervening act or event is self sufficient or
significant as to become the operative or substantial cause of the
consequence. It must be noted that no such new intervening act can break
the chain of causation if it merely complements or aggravates the ongoing
effect of the initial conduct of the accused.

a) Act Of Third Party

i. Deliberate And Informed Unforeseeable Act: The intervention of the
third party rather than a person acting in concert with the accused may
break the chain of causation if it is free, deliberate and informed. The
issue then is one of determining the circumstances in which the
voluntary act of the third party will be so significant as to break the
chain of causation. In the case of Latif 1996, L and S were involved in a
plan to smuggle drugs into Britain. The drugs were delivered to a
supposed accomplice in Pakistan who was in fact an under-cover
operative of the US drug enforcement agency. The drugs were then
flown into Britain by a British customs officer, technically without
lawful authority and without knowledge of L and S but with knowledge
that they were unlawful drugs while L and S were deceived to enter a
business meeting in London where they were arrested. It was held that
the importation by the customs officer unlawfully was a deliberate third
party act for which L and S were not responsible, although L and S
could still be convicted for attempt. There was a break in the chain of
causation. In contrast the actions of an innocent agent who is unaware
of the true fact cannot break the chain of causation. For instance, if the
cases containing the drugs had been forwarded by airline officials, as
lost luggage of L and S as in the case of Jakeman.

P a g e 20 | 20
 In the case of Pagett 1983, P shot at police officers who were
attempting to arrest him for various offences. He then used his
pregnant girlfriend V, against her will as a human shield. V was shot
and killed by bullets from officers returning his fire. He was convicted
of manslaughter. The Court of Appeal held that the officers had not
acted freely and had acted involuntarily in taking reasonable measures
for the purpose of taking self-defense and in the performance of their
legal duty to arrest P, and this did not break the chain of causation as it
was foreseeable

ii. Medical Intervention: In the case where a victim of an attack is

inflicted an injury or injuries which may require medical treatment, it is
always foreseeable that his injuries maybe misdiagnosed or receive
improper, wrong or negligent treatment. This is a major reason why
improper or incorrect medical treatment is hardly ever categorized by
the Courts as amounting to a novus actus interveniens. It will only
require a ‘most extraordinary and unusual case’ for this to occur as
was held in the case of Cheshire 1991, 1 WLR 144.

Another justification in most cases is that failure to provide proper

treatment hardly amounts to an independent cause of death. It is far
more likely that such failure will merely aggravate the original injury to
take its natural course. Even where incorrect treatment leads to death,
it will only break the chain of causation, if it is

o unforeseeably bad and

o the sole significant cause of death with which the accused

is charged.

An exceptional case in which palpably wrong medical treatment was

said to have broken the chain of causation was the case of Jordan
(1956) 40CRAPPR152, J stabbed V who was taken to the hospital and

P a g e 21 | 21
the wound was stitched. Eight days later, V died. J was convicted of
murder in the High Court. On appeal J sought to adduce medical
evidence to the effect that the wound had almost totally healed at the
time of V’s death and the wound was not the cause of death as he had
died as a result of a mix-up in which he was giving heavy antibiotics to
which he had already proved highly allergic and the administration of
large quantities of which had caused his lungs to become waterlogged.
The Court of Appeal was of the view that if the jury had considered this
new evidence, they would have concluded that it was the medical
treatment that had caused death and not the stab wound. They
described it as ‘palpably wrong’ and quashed the conviction.

Treatment which is said to be not normal however is not necessarily

palpably wrong. This was so held in the case of Smith 1959, which was
clearly distinguishable from that of Jordan. S, a soldier, had stabbed
his comrade twice with a bayonet during a barrack’s fight. Another
soldier who carried V to the medical station dropped him twice on the
way, and an overworked medical staff failed to notice that one of V’s
lungs had been pierced which was described as thoroughly bad, it
might well have affected his chance of recovery. V died and S was
convicted of murder. At his appeal S argued that the treatment V
received was abnormal and that if the treatment affected his chances
of recovery then death did not result from the wound. The appeal was
dismissed that this did not break the chain of causation. Lord Parker
stated as follows: “if at the time of death, the original wound is still an
operating cause and a substantial cause then the death can be properly
be said to be the result of the wound…only if it can be said that the
original wounding is merely the setting in which another cause
operates can it be said that death did not occur 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
the death does not follow from the wound.” As a result, it was clear that
V’s death was a case of death by multiple causes and the stab wound

P a g e 22 | 22
was one of them and it was still operating and a substantial cause. In
contrast the wound inflicted in Jordan had largely healed and so the
hospital treatment was in effect the sole cause of V’s death.
Furthermore, the treatment was so bizarre as to be unforeseeable. Had
V died as a first routine doze of antibiotics, J’s murder conviction will
almost certainly have been upheld.

This was seen clearly in the case of Cheshire 1991 in which C shot V in
the leg and stomach, and later died as a result of unfortunate medical
complications during emergency treatments. C was convicted. Beldam
J stated as follows: “…when the victim of a criminal act is treated for
wounds or injuries by doctors or medical staff attempting to repair the
harm done, it will only be in the most extraordinary and unusual case
that such treatment was said to be so independent of the act of the
defendant that it could be regarded in law as a cause of the victim’s
death to the exclusion of the defendant’s act…even though negligence
in the treatment of the victim was the immediate cause of his death, the
jury should not regard it as excluding the responsibility of the accused
unless the negligent treatment was so independent of his act and itself
so potent in causing death that they regard the contribution made by
his act as insignificant.”

The case of Cheshire was followed by the court of Appeal in the case
of Mellor 1996, where the appellant was charged with the murder of an
elderly man who after being attacked died in the hospital two days
later. It was alleged that negligence by the hospital staff broke the
chain of causation. The appellant was convicted. It was held that if the
act of the accused contributed significantly to the victim’s death, it
mattered not whether the medical treatment was incompetent or
mistaken.

P a g e 23 | 23
 b) Act of The Victim
In many cases, the actus reus of a crime is committed not by the act of
the offender or a third party but by an act of his victim. A case in point is
Roberts 1971 where a girl who was a passenger in the defendant’s car
injured herself by jumping out of the car whiles it was in motion after the
defendant had sexually assaulted her in the car.

In the case of DPP v Daley 1979, the accused threw stones at the
deceased who ran away from them, tripped, fell and died. The court held
that causation for manslaughter would be established if the following
essential ingredients were present:

(1) ‘that the victim immediately before he sustained the injuries

was in fear of being hurt physically
(2)that this fear was such that it caused him to try to escape
(3)that while he was trying to escape and because he was trying
to escape he met his death
(4)that his fear of being hurt there and then was reasonable and
was caused by the conduct of the defendant’
A victim’s aggravation or neglect of his injuries caused by the accused is
most unlikely to affect the chain of causation and will not prevent legal
attribution of culpability to the accused.

In the case of Wall 1802, W a governor of a colony was found guilty of the
murder of a soldier, S, whom he had subjected to an illegal flogging of 800
lashes. Although, S subsequently aggravated his condition by drinking
heavy spirits in the hospital to ease the pain, MacDonald LJ directed the
jury that “there is no apology for a man if he puts another in so dangerous
and hazardous a situation by his treatment of him that some degree of
unskillfulness and mistaken treatment of himself may possibly accelerate
the fatal catastrophe…”
In the case of Holland 1841, H cut V severely on the finger. The wound

P a g e 24 | 24
became infected and V ignored medical advice that he should amputate
his finger or his life might be in danger. The wound caused death, the
judge directed the jury that it made no difference whether the wound was
instantly fatal or whether it became so by reason of the deceased not
having adopted the best mode of treatment, as the real question is
whether in the end the wound inflicted by the accused was the cause of
death. He was convicted of murder. In the case of Williams 1992, it was
held that the question is whether ‘this reaction was within a range of
responses which might be anticipated from a victim in his position’ or
whether he was ‘so daft as to make it his own voluntary act which
amounted to his novus actus interveniens’. Therefore, the jury should not
be invited to make allowance, for example, for the age or inexperience of
the accused. The inability of the accused to foresee this reaction may be
relevant to the question of mens rea but as far as causation is concerned
under this ambit, the test is subjective. It was therefore pointed by the
judge that the jury must be directed ‘to bear in mind any particular
characteristic of the victim and the fact that in the agony of the moment, a
victim may act without thought and deliberation’

c) Unforeseeable Natural Event or Act of God

This may break the chain of causation leading from the initial act of the
accused if it was not reasonably foreseeable and if it was also the sole
immediate cause of the consequence in question. It was held in the case
of Southern Water Authority v Pegrum 1989 that the event must be “of so
powerful in nature that the conduct of the defendant was not a cause at all
but was merely a part of the surrounding circumstances.”

P a g e 25 | 25
Mens rea (mental element)

INTRODUCTION
In addition to proving that the actus reus exists or in establishing the
definition of the actus reus of a particular offense charged. The
prosecution must also prove mens rea which means that the accused has
the necessary mental state or degree of fault at the relevant time the act
was done. There is however an exception to this, the strict liability
offenses.

Mens rea is the mental element necessary for a particular crime.

Technically, it is the criminal intent with which the prohibited act is
performed. It is a very complex concept encompassing a wide variety of
mental states including mainly intention, recklessness and negligence.
There are certain words used in statutes that imply mens rea; they are
intention, recklessness, willfulness, maliciously, knowledge etc. In this
respect criminal offenses vary, in that some require intention as the mens
rea, some require only recklessness; some are even satisfied by
negligence. In a nutshell, mens rea aims at proving culpability or blame
worthiness on the part of the accused.

Intention embraces the two levels of culpability, that is:

o Acting purposely

o Acting knowingly

A person acts purposely when he has the desire to cause the result. This
mental stage is referred to as specific intent or direct intention. A person
acts knowingly when he is aware of the nature of his act that he is
practically certain that his conduct will cause a particular result.

Recklessness and negligence are the two lowest level forms of culpability.
The distinction between the two is based on a very thin line. An individual
acts recklessly when he consciously disregards a substantial and
unjustified risk that the result may occur. An individual acts negligently
when he should be aware that the substantial and unjustifiable risk exists

P a g e 26 | 26
or will exist from his conduct.

INTENTION

I NTRODUCTION
There exist various crimes which are so defined or created as to require
proof of intention to bring about various consequences. Therefore, the
mens rea required is one of intention to cause the culpable act. Intention
is the highest form of mens rea as it implies deliberate act on the part of
the accused. It is a word that is usually used in relation to consequences.
That is in a case where a person clearly intends a consequence if he
wants that consequence to follow from his action. This is so whether the
consequence is very likely or unlikely to result. Therefore, a person who
shoots at another person wanting to kill him intends to kill him whether
the intended party is just very close to him and an easy target or standing
one mile away and it will take an exceptionally good shot to kill him. In
either case, the intention is the same and even if he misses, he would be
liable for a crime requiring intention.

There is no clear agreement in English law as to the meaning of the word

intention, therefore, the meaning of intention is not very clear but what is
clear is that it falls under two limbs:

o A consequence is intended when it is the aim or the objective of the

accused that is a result when he acts to bring it about. This is known
as direct intention.

o A consequence is intended when it is the aim or objective of the

accused to commit an act which is foreseen as virtual practical
certainty to cause another act being aware that the other act which
is not his aim or objective will occur in the ordinary course of events.
This is known as the indirect intention.

Put in another way

P a g e 27 | 27
 o it is his purpose to cause it and

o although it is not is purpose to cause it, he knows that it will occur in

the ordinary course of events if he were to succeed in the purpose of
causing another result.

D EVELOPMENT OF I NTENTION

Statutes of Parliament do not generally define intention but the Courts

have over the years tried to do so. In as much as they’ve tried in many
cases to come up with a definition and level of standard of intention, they
have not been very clear.

It started mainly in the case of Hyam 1975 where the House of Lords was
involved in deciding the mens rea for murder. Here, the House of Lord
decided that the accused had the mens rea, if at the time the killing took
place it was highly probable that his actions would cause death or
grievous bodily harm. The facts of the case are the defendant had become
very jealous when another woman had taken a man. In the early morning,
therefore, she poured petrol in the letter box of the house of her lover’s
girlfriend and set fire to it knowing full well that people were asleep in the
house. In the resulting blaze, two children died. She claimed that she had
not meant to kill but had foreseen that death or grievous bodily harm was
a highly probable result of her actions and she was fully aware of it, but
argued that she had only intended to frighten the other woman. The House
of Lords rejected her appeal on the grounds that her state of mind
amounted to an intention to kill or cause grievous bodily harm. The judges
varied in their reasons for dismissing the appeal but strongly held that
intention was established if it was shown that the defendant foresaw the
result as highly probable.

Judges in other cases did not apply this rule and the ruling was picked up
by judges in the Court of Appeal in two cases, Mohan (1976) and Belfon
(1976). These judges decided that mere foresight that death or personal
injury was highly probable was not the same as having the intention to
cause the act in question but a question of recklessness. Instead, it was

P a g e 28 | 28
merely evidence for the jury to look at when deciding whether the intention
was present or not. In the case of Mohan 1976, intention was defined as a
decision to bring about, in so far as it lies in the power of the accused, the
prohibited consequence no matter whether the accused desired that
consequence of his act or not. The facts of the case are D was charged
with attempting to cause grievous bodily harm with intent having driven a
car at the police man to escape. D may not have desired to injure the
police man as an end in itself but was prepared to do it anyway as a
precondition to escaping which was his ultimate aim or purpose.

The question of what constitutes intention will surface in the case

Moloney (1985). The facts are the defendant and his stepfather both of
whom had been drinking heavily together late at night engaged in a
contest to ascertain which of them could load a shotgun in the fastest
time. The defendant won this argument and then claimed that his
stepfather had teased him to pull the trigger. He did so and the stepfather
was killed. His version was that ‘I didn’t aim the gun, I just pulled the
trigger and he was dead’. Evidence showed that the parties were on good
terms when the others left them. Moloney was convicted of murder but
the House of Lords changed the verdict to manslaughter. Lord Bridge
made it clear that it was the jury’s duty to decide on the matter of intention.
He stated thus: “the golden rule should be that when directing a jury on
the mental element necessary in a crime of specific intent, the judge
should avoid any elaboration or paraphrase of what is meant by intent and
leave it to the jury to decide whether they acted with the necessary intent…”
he went on to say that the jury should be asked to decide on two matters:
first ”was death or serious injury…a natural consequence of the
defendant’s act; secondly, did the defendant foresee that consequence as
being a natural consequence of his act. The jury should then be told that if
they answered yes to both questions, it is a proper inference for them to
draw that he intended that consequence.”
These guidelines were however questioned in the case of Hancock v
Shankland (1986). The facts are that the defendants, two striking miners
were angered when another miner had gone back to work. They had

P a g e 29 | 29
pushed a large number of concrete from a bridge unto a convoy of cars
below carrying this miner to work. A convoy driver was killed. The
defendants claimed that they had not meant to kill or cause serious injury;
their plan was to drop the concrete in the middle of a carriage lane while
the convoy was in a mere side lane. Their aim was to frighten the miner or
block the road in order to frighten him or prevent him from getting to work.
The trial judge diligently recited the Moloney guidelines to the jury and the
defendant were convicted of murder. The Court of Appeal quashed the
conviction and this was confirmed by the House of Lords. It was argued
by the Court of Appeal that the Moloney’s guidelines were deficient; they
seemed to imply that any natural consequence would be enough to attract
liability. In the House of Lords, Lord Scarman, agreed with the view of the
Court of Appeal and agreed and stated that the Moloney guidelines were
‘unsafe and misleading’ and that they require a reference to probability.
Therefore, it was established that the Moloney guidelines should no longer
be used. Both appeal courts also stresses that even where there is a belief
that the defendant must have known that the consequences of his act
were virtually certain, this is not the same as saying such as intention if it
as the level of highly of probable.

The matter came up in the case of Nedrick 1986 where the defendant
poured petrol through a letter box and set it alight which resulted in the
death of a child. The jury convicted the defendant of murder; the trial at
first instance was heard before the case of Moloney reached the House of
Lords and was of course before the case of the modification in the case of
Hancock and Shankland. The judge therefore directed the jury in such a
way that followed the House of Lords decision. They appealed against the
conviction of murder and the matter of misdirection occasioned by the
changes in the law. Lord Lane directed that the correct direction to the
jurors should now be to tell them that: “if they are satisfied that at the
material time, the defendant recognized that death or serious injury will be
virtually certain…to result from his voluntary act then that is a fact from
which they may find it easy to infer that he intended to kill or do serious
bodily harm even though he may not have any desire to achieve that

P a g e 30 | 30
result”. This seemed to have clarified the matter to some extent; the cases
which followed however, continued to complicate the issue. In the case of
Walker 1990, the Court stated that in directing the jury it is always better to
use the words ‘virtually certain’ even though the judge had used ‘highly
probable’.
This issue was again brought up in the case of Woolin 1996, where the
accused lost his temper with his three-month old son and threw him with
great force across the room to the wall. The baby died. Woolin admitted
that the baby had hit the wall and floor very hard but did not think it will kill
him although he had accepted that there was high risk of injury. The trial
judge had directed the jury that they may infer intention if they were
satisfied that when the accused threw the child, he appreciated that there
was a substantive risk that he will cause serious harm to him. The
accused was convicted of murder and on his appeal he claimed that such
a direction might therefore have served to confuse or mislead the jury as
to the degree of foresight required. He argued that the judge should not
have used the phrase ‘substantial risk’ which is the test of recklessness
but should have used the phrase ‘virtual certainty’. The Court of Appeal
referred back to Lord Scarman’s judgment in Hancock and Shankland and
stated that he did not suggest that the jury could only be directed that they
could only infer intention in respect of those consequences of those
action of the accused which were classed as virtual certainties but said
that where there is other evidence, the judge should also remind the jury
that the probability, however, high of a consequence is only a factor
though it may in some cases be a very significant factor to be considered
with all the other evidence. The Court, therefore, held as follows: “we
accept that such a direction that the death or serious injury was a virtual
certainty as a result of the defendant’s actions and that the defendant
appreciated this should be given in cases.”

Intention, Desire & Motive

The Courts have made it very clear that the word intention should not be

P a g e 31 | 31
equated with the word ‘desire’ or the word ‘motive’. There are many times
when people have the desire to do something provided that this remains
as mere thought; they cannot be brought before the court no matter how
strong the word desire may be. It was stated in the case Cunliffe v
Goodman 1950 that intention is said to be that the person does more than
merely contemplate or more than desire. Intention must also not be
confused with motive. The motive for committing the crime in question
may be a good one but if the intention is present, the mens rea will have
been established and the defendant will have to hope that his motive is
taken into account in the sentencing process. In the case of Chandler v
DPP, the defendant was very much opposed to the use of nuclear
weapons and had been involved in a sit-in at a military base with the
purpose of preventing aircraft such as missiles from taking off. He was
charged with breaking into a prohibited place with a purpose against the
safety and interest of the state. He argued that he did not have the
necessary mens rea for this offense. He claimed that his purpose or
motive was to save the state and other states from danger. The case
reached the House of Lords where it was established that the defendant’s
motive was relevant, and that the immediate intention (purpose) of the
offender was to break into the airfield and cause an obstruction.
HP HP-VC VC VC/HP
Hyam Hancock Walker Woolin
Mohan Nedrick
Moloney

January 30, 2014

RECKLESSNESS
I NTRODUCTION
Some crimes such as attempt and murder can only be committed
intentionally and it is therefore very vital to distinguish intention from
recklessness. This line of distinction is based on the degree of foresight

P a g e 32 | 32
whether it is ‘virtually certain’ or ‘unjustified risk taken’. Recklessness is
basically concerned with’ unjustified risk taken’. In this sense in all cases
where the mens rea needs to be shown, it is essential to establish that the
accused took an unjustifiable risk.

However, not all risks come into this category; for instance, a doctor may
perform a delicate operation on a patient which only has a thirty percent
chance of success but is one which may well give him a much better
quality of life if it succeeds. There is obvious social utility in allowing the
doctor to proceed without the fear of criminal culpability if the operation is
a failure. In the case of Reid (1992) 1WLR793, their lordship commented
that taking a high risk to avert an emergency or danger will not amount to
criminal culpability.

Over the years there has been a great deal of controversy in providing a
proper definition for the word ‘recklessness’. The major reason for this is
that recklessness has come to be the touchstone of criminal
responsibility for a large number of criminal offenses. For instance, if an
accused threw a stone which damaged V’s window and his charged for
malicious damage, he may be able to put up a defense that he was aiming
at the dog in front of the window and that he did not intend to damage the
window.

There has also been great confusion over the years in respect of the test
of recklessness due to the different opinions as to the degree of
recklessness to be shown. The first test or major argument is that an
accused should only be liable if he alone had foreseen that he was taking
an unjustifiable risk whereas others are of the belief that he should be
liable if he ought to have foreseen such a risk. These two tests of
recklessness are known respectively as the Cunningham (subjective) test
and the Caldwell (objective) test.

D EVELOPMENT OF R ECKLESSNESS
The Courts in their early decisions on the meaning and scope of
recklessness gave it a subjective meaning. This means that an accused

P a g e 33 | 33
can only be held to be reckless where he had foreseen the possibility of
the culpable act occurring or the particular circumstance existing and he
had carried on regardless. This is what is referred to as subjective
recklessness. The leading authority on subjective recklessness is the
case of Cunningham (1957) 2QB396. In the 1970’s several case adopted
and applied the subjective test including the case of Parker (1977)
WLR600 where it was held that it has to be proved that the accused
recognized the risk.

The facts of the case of Cunningham are as follows. The accused

removed a gas meter from an unoccupied house with the intention of
stealing the money it contained. In doing this, he damaged the pipe from
which gas was escaping. The gas escaped into a neighbouring house and
affected the woman living there. D was convicted of maliciously
administering gas so as to endanger life. The conviction was quashed and
the subjective test was established. The Court of appeal stated that when
the word malicious was used in a statute, it was necessary to establish
that the accused either intended to cause the harm in question or should
have as an individual foreseen that such an event would occur. On this
test Cunningham could only be convicted if he knew of the risk from the
gas but nevertheless went on to take it. It was not enough that he ought to
have foreseen such a risk. The test therefore was subjective.

This view was also followed in the case of Stephanson (1979) where the
accused had lit a fire which caused 300 pounds sterling damage where it
was so obvious that it would have been foreseen by an ordinary
reasonable man. The High Court judge had directed the jury that a person
who without lawful excuse destroys or damages another’s property was
reckless as to whether any such property would be destroyed or damaged
if he closed his mind to the obvious fact of risk. The jury returned a verdict
of guilty and the accused was convicted. He appealed against his
conviction on the major ground of misdirection by the judge on what
constituted recklessness. The Court of appeal quashed the conviction.
Lord Lane vehemently held that the test on recklessness was subjective.
He stated as follows: “the problem is not difficult to state: does the word

P a g e 34 | 34
‘reckless’ require 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 (the subjective test) 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)? In our
view it is the subjective test which is correct. What then must the
prosecution prove in order to bring home the charge of arson in
circumstances such as the present? They must prove that … the
defendant either:
a) intended to cause the damage to the property or
b) was reckless as to whether the property was damaged or not
a man is reckless when he carries out the deliberate act appreciating that
there is a risk that damage to property may result from his act…we wish to
make it clear that the test remains subjective, that the knowledge or
appreciation of risk of some damage must have entered the defendant’s
mind even though he may have suppressed it”

1st February 2014

This then was the position until the cases of Caldwell and Lawrence in
1982. The two cases were decided by the House of Lords on the same day
and together they introduced a high degree of uncertainty into this area of
law. However, the House of Lords played a pivotal role in transforming the
meaning and scope of recklessness from subjective to objective test.

In the case of Metropolitan Police Commissioner v Caldwell 1982 AC341,

the House of Lord established the point that is not sufficient for an
accused to say that he was not aware of the relevant risk because it had
never occurred to him. The facts of the case are the accused had been
engaged to work for the owner of a hotel but had been dismissed.
Caldwell got very drunk, broke a window in the hotel and started a fire on
the ground floor. Fortunately, this was discovered and put out quite
quickly and no serious harm was done, either in the form of personal
injury to the ten people residing in the hotel or in the form of property

P a g e 35 | 35
damage. From evidence it was clear that there was no intention to cause
the fire. Caldwell pleaded not guilty to the more serious charge of causing
criminal damage with intent to endanger life or being reckless as to
whether life would be endangered. However, the jury found him guilty and
he was sentenced to three years imprisonment. This case eventually
reached the House of Lords where Lord Diplock took a wider view of
recklessness as having an objective test. Caldwell’s appeal therefore was
dismissed. In Lawrence 1982, the House of Lords in a reckless driving
case upheld the wider definition of recklessness laid down in Caldwell.
The facts are the accused riding a motorcycle had collided with and killed
a man and the House of Lords held that there had been an obvious
serious risk to which the accused Lawrence had failed to avert. His
conviction therefore was upheld.

Latter cases followed the new approach. In Reid 1992, the defendant was
driving in the center of London and tried to overtake on an inside lane.
This narrowed considerably near a junction to allow for a taxi driver’s haut.
Reid struck this haut and his passenger was killed. He appealed against
his conviction for causing death by dangerous driving. The case reached
the House of Lords and he held as follows: “absence of something from a
person’s state of mind is as much part of his state of mind as it is its
presence”.

Lord Diplock’s test of objectivity attracted great criticism from both judges
and academics. Professor Glanville Williams said the change in the law
was ‘regrettable’ and Lord Brown Wilkinson stated that the test was not
‘very helpful’. The test therefore was attacked from the beginning and it
use has been increasingly restricted. It was applied in a strain way in the
case of Piggg 1982, an attempted rape case, but later abandoned in
similar cases where it was decided that a more subjective approach had
to be taken in such cases. The Court of Apppeal in some cases endorsed
by the House of Lords that the Cunningham recklessness was still
necessary for offenses containing the words ‘malicious’. In W (Minor)
(1983), a fifteen year old boy pointed an air gun belonging to his brother at
a man on a farm and when told to put it down fired it instead, wounding

P a g e 36 | 36
the man in question. The boy argued that he thought the gun was
unloaded. His conviction for unlawful wounding was quashed because the
more objective test had been applied and this was held to be incorrect for
this type of offense. In Parmenter (1991), the House of Lords also argued
that Cunningham recklessness was necessary for cases of assault.

It can be seen therefore, that Cunningham rather than Caldwell

recklessness must be shown for rape and for any case where the word
malicious appears in the definition of the offence. In a few other areas for
instance offences of damage, the Caldwell test is strictly applied
sometimes with unjust result. In the case of Elliot v C (a minor) (1983), the
defendant was of only fourteen and of low intelligence, she stayed out all
night without sleep and entered a garden shed where she poured white
spirits over a carpet and set fire to it and the whole shed was destroyed.
The Court reluctantly upheld her conviction for aggravated criminal
damage because the Court was bound by the precedent set in Caldwell
concerning the test of recklessness. Goff LJ stated however, “I will be
lacking in candor if I were to conceal my unhappiness about the
conclusion which I feel compelled to reach.” In a nutshell since the case
of Caldwell in 1982, there are two types of recklessness in English law.

NEGLIGENCE
Negligence occurs where a person acts in a way that falls below the
standard of the reasonable person in the same situation as the accused.
Such carelessness often attracts liability in civil law but in addition there
are certain situations where a person would also be liable under the
criminal law. In other words, the person is negligent if he fails to exercise
such care, skill or foresight as a reasonable man in his situation will
exercise. Negligence is not so much a state of mind but is rather a failure
to comply with the standards of the reasonable man.

The main distinction between recklessness and negligence is that the

P a g e 37 | 37
former is the taking of an unjustifiable risk while the latter is an
inadvertent risk taken. Negligence is a type of legal fault which sets an
objective standard to which a person’s conduct must conform. The
standard set is that of the reasonable or prudent man. Therefore, if a
reasonable man would have recognized the risk of the consequence
occurring or a circumstance existing in the situation in which the accused
acted or omitted to act, the accused would be liable whether or not he
gave any thought to the possibility of there being a risk involved in his
conduct.

The Caldwell recklessness test overlaps to some degree with negligence

as under the Caldwell test an accused may be liable where he failed to
give thought to an obvious risk. Negligence, however, is concerned with an
area which Caldwell does not cover. If a person gives thought to a risk but
concludes that there is no risk, he will not be liable under Caldwell. The
concept of negligence however includes the individual who may have
given thought to the possibility of the risk existing and unreasonably
concluded that it does not exist.

Traditionally the Common law did not impose criminal sanction for
negligence save that of manslaughter where gross negligence is a ground
of liability. However, there are a few crimes under statute law where
negligence is the sole basis of liability. For instance, under the road traffic
act of 2007; in the case of McCrone (1938), the Lords stated that the
standard of driving should be as follows: “that standard is an objective
standard, impersonal and universal, fixed in relation to other users of the
highway. It is in no way related to the degree of proficiency or degree of
experience to be attained by the individual driver”. This standard therefore,
applies to all drivers even the inexperienced drivers. The standard set is
that of the reasonable, prudent and skillful driver. The facts of the case are
that the defendant was a learner driver but nonetheless it was decided
that he could be convicted of careless driving if his standard of driving fell
below that of a reasonable competent driver. If the accused has some
special knowledge or skills which the ordinary man will not possess, the
standard against which he will be judged is that of the reasonable man

P a g e 38 | 38
possessing that special knowledge or skill as was held in the case of
Lamb 1967.

P a g e 39 | 39
STRICT LIABILITY OFFENCES
Strict liability offences are offences where the element of mens rea need
not be proved in respect of one or more element of the actus reus of an
offence. Therefore, strict liability offences are normally those where there
are no fault elements in relation to one or more element of the actus reus.
The effect of such an approach is that an accused may be found guilty of
a particular crime irrespective of whether his conduct was intentional,
purposeful, knowing, reckless or negligent.

The modern type of strict liability offence was first established in the case
of Woodrow (1846) where the defendant was convicted of having in his
possession adulterated tobacco even though he did not know it was
adulterated. The judge, Park J, ruled that he was guilty even if it needed a
nice chemical analysis to discover that the tobacco was adulterated. The
concept of strict liability, therefore, appears to contradict the basis of
criminal law. Normally, criminal law is thought to be based on culpability
of the accused. In strict liability offences there may be no blame
worthiness on the part of the defendant. The defendant as in Woodrow is
guilty because he has done a prohibited act. With offences of strict
liability, the prosecution only needs to prove that the actus reus was
committed by the accused which must involve establishing that the
conduct of the accused was voluntary.

A major case is that of Prince (1875), where the accused was convicted of
taking a girl under the age of sixteen out of the possession and against
the will of her father. A more modern example of strict liability cases is
that of Pharmaceutical Society of Great Britain v Storkwain Ltd (1986).
This case involved Section 58 (2) of the Medicines Act 1968 which
provides that no person shall supply specified medicinal product except in
accordance with a prescription given by an appropriate medical
practitioner. D had supplied drugs on prescriptions which were later found
to be forged. There was no finding that D had acted dishonestly,
improperly or even negligently. The forgery was sufficient to deceive the
pharmacists. Despite this, the House of Lords held that the divisional
court was right to direct the magistrate to convict D. The pharmacists had

P a g e 40 | 40
supplied the drug without a genuine prescription and this was enough to
make them guilty of the offence.

For all strict liability offences, it must be proved that the defendant did the
relevant actus reus. In the case of Woodrow, this meant proving that he
was in possession of the adulterated tobacco and nothing more. For
Storkwain, this meant proving that they had supplied specified medicinal
product not in accordance with the prescription given by an appropriate
medical practitioner. In these cases, it also had to be proved that the doing
of the actus reus was voluntary. An accused might not be found guilty of a
strict liability offence in a case where his conduct was involuntary
(absolute liability).

However, he may be convicted even though he caused the prohibited

consequence inadvertently and in a totally blameless way. In the case of
Callow v Tillstone 1900, D, a butcher asked a vet to examine a carcass to
check that it was fit for human consumption. Relying on the assurance of
the vet, he offered it for sale. D was convicted of exposing unsound meat
for sale as the meat was in fact unfit for human consumption. In this case,
it can be seen that D had exercised good care and taken reasonable steps
to avoid committing the offence. His conduct was quite blameless. The
offence was however one of strict liability as mens rea was not required in
respect of the unsoundness of the meat even when the vet had negligently
performed his examination.

It has long been settled in Sierra Leone that when a statute creates an
offence of strict liability, effect must be given to such a legislative intent.
In the case of Controller of Customs v Bassman 1920-1936 ALRSL428,
the then Supreme Court, now High Court, addresses this issue. The
respondent was charged in the Magistrate court with importing a bale of
fabric that had not been stamped as required under Section 2 of the
Folded Woven Goods Ordinance, Ordinance 1893. The respondent as
agent for a firm of importers alleged that the imported bale had not been
specifically ordered by him but had been included without his knowledge
in a consignment of other goods and that he did not know that it had not

P a g e 41 | 41
been properly marked. He contended that the offence with which he was
charged required proof of mens rea. The Magistrate ruled that he could
not lawfully be convicted without proof of knowledge and accordingly
acquitted him. the Contractor of Customs appealed on inter-alia the
following grounds:

a. The acquittal was wrong in law and

b. The ordinance under which the respondent was charged was

prohibitive and did not require proof of knowledge on the part of the
respondent.

Upholding the appeal on these grounds, Weber CJ ruled that the

prohibition under Section 2 of the Ordinance did not require proof of mens
rea. The Court held that in order to determine whether mens rea is an
ingredient of an offence, it is necessary:

a. To look at the object of the statute, to see whether and how far the
accused’s knowledge is of the essence of the offence and

b. To see whether the operative verb of the prescribed offence in a

case not covered by authority is controlled by such a word as
‘knowingly’ if mens rea is required.

P a g e 42 | 42
Identifying Offences of Strict Liability
In most cases if mens rea is required, it could be expressly stated by
using words such as intentionally, knowingly, knowledge or willfully in an
Act of Parliament. On the other hand, if the offence is intended to be one
of strict liability, it could be expressly stated. However, most statutory
provisions remain silent and the Courts are left to determine their nature,
which can be done in a process called statutory interpretation whereby
they try to discover the intention of Parliament.

It must be noted that the absence of expressed words imposing a

requirement of proving a mental state of mind is not conclusive that the
offence is one of strict liability. In the case of Sweet v Parsley 1970 AC132,
the House of Lords held clearly that if a statute clearly expressed that an
offence is to be one of strict liability, the Court will carry out the will of
Parliament. However, in the case where it is silent, Lord Reid stated the
position as follows: “In such cases, there has for centuries been a
presumption that Parliament did not intend to make criminals of persons
who were in no way blame worthy in what they did. That means that
whenever a Section is silent as to mens rea, there is a presumption that in
order to give effect to the will of Parliament, we must read in words
appropriate to require mens rea…in the absence of a clear indication in the
Act that an offence is intended to be an absolute offence, it is necessary
to go outside the Act and examine all relevant circumstances in order to
establish that this must have been the intention of Parliament. I say must
have been because it is a universal principle that if a penal provision is
reasonably capable of two interpretations, that interpretation which is
most favourable to the accused must be adopted.” It must also be noted
that if words which impose the requirement of mens rea are present in the
Section, there will be no room for confusion as the intention of Parliament
would have been clearly expressed.

P a g e 43 | 43
TRANSFERRED MALICE
Transferred malice is where a person intends to harm one victim but
instead harms another out of mistake. Therefore, if an accused has the
mens rea for an offence to be committed on a person, this may be
transferred to another if it is the same. Transferred Malice is also referred
to as transferred mens rea and transferred intent.

This principle was mainly established in the case of Latima 1886 which
was concerned with malicious wounding under Section 20 of the Offence
Against the Person Act 1861. The facts of the case are the accused struck
his belt at C but missed and accidentally cut open the face of a woman.
The Court of Appeal upheld the conviction of D of unlawfully and
maliciously wounding the woman. The Court applied the doctrine of
transferred malice which underlines the point that it is a question of
interpreting the particular offence. The identity of the victim is not a
material detail and, therefore, the intention of the accused can be
transferred so as to make the accused liable for an injury accidentally
inflicted on the woman. Lord Coleridge stated as follows: “it is common
knowledge that a man who has an unlawful and malicious intent against
another and in attempting to carry it out injures a third person is guilty of
what the law deems malice against the person injured because the
offender is doing an unlawful act and has that which the judges call
general malice and that is enough.” This principle was applied to the
offence of manslaughter in Mitchell 1983 where the accused assaulted A,
aged 72, causing him to fall on the even more elderly B, aged 81,
ultimately causing her death. The Court of Appeal upheld the conviction
for her manslaughter. The presiding judge stated that: “we can see no
reason of policy for holding that an act calculated to harm A cannot be
manslaughter if it in fact kills B.”
A more restrictive approach to the doctrine of transferred malice was
taken by the House of Lords in the case of AG Reference No.3 of 1994
(1996) where the applicant stabbed the pregnant woman intending to
cause her grievous bodily harm as a result her child was born prematurely
and 121 days later died because of the prematurity of the birth. The judge

P a g e 44 | 44
directed the jury to acquit the appellant of both murder and manslaughter
because the foetus at the time of the attack was not a living person. The
doctrine of transferred malice was not applicable because the intent to
stab the mother, a living person, could not be transferred to the foetus not
a living person. Therefore, the House of Lords held that the judge was
right to direct an acquittal on the count of murder.

It should be noted of the rule that mens rea for one offence cannot be
transferred so as to make an accused liable for a different offence even in
if the two offences happened to share similar terminology in their
definition. This was illustrated by the case of Pembliton 1874 where the
accused threw a stone at a crowd of people but missed and broke a glass
window behind them. The jury found that he intended to hit the people but
not the window although he could have been convicted of malicious
wounding had he injured someone, his conviction was quashed for
malicious damage since that was a separate offence with its own
separate mens rea requiring foresight of damage to property rather than
foresight of injury to a person. However, this would have been different if
the accused had thrown the stone recklessly knowing that there was a
window glass.

If two separate offences have precisely the same mens rea, then the
problem disappears. Proof of the mens rea of one automatically involves
proof of the mens rea of the other. This principle was applied in the case
of Ellis 1986 in which it was held that an intention to import a prohibited
substance is the mens rea sufficient both for importing a controlled drug
of Class A and also for the separate offence of importing a controlled drug
of Class B. Thus, if an accused believed he was importing a Class B drug
but was in fact importing a Class A drug, he can be convicted of the latter
offence since he had the necessary mens rea of an intention to import a
prohibited substance.

In the case of Dogbowu v R 1950-1956 ARL SL 232, the appellant was

charged in the Supreme (now High) court with murder. The facts of the
case are that the accused had aimed a blow with a machete at a woman

P a g e 45 | 45
who was carrying a child strapped to her back with the intention of
causing her death or grievous bodily harm. The blow missed the woman
but killed the child. He was convicted of murder. The West African Court
of Appeal dismissed his appeal on the grounds that there was no merit in
his contention that he did not intend to kill the child. The Court held that an
accused is not free of responsibility for the crime of murder by the fact
that the blow which caused the death of the victim was intended to cause
death or grievous bodily harm to another.

P a g e 46 | 46
DEFENCES

Generally, to establish criminal liability the prosecution must prove that

the accused did the act and that he had the requisite mental state, with the
exception of strict liability. However, this does not mean that criminal
liability will automatically be attached to the accused once the two
elements have been established by the prosecution. The conduct of the
accused may well have been in the eyes of the law justifiable or excusable.
The notion of justification and excuse in this sense is what is known as
defences to criminal liability. This means that an accused may commit the
actus reus of an offence with the requisite mens rea and yet escape
liability because he has a defence which is a separate third element. A
defence, therefore, is an answer or response put forward by the accused
to negate or defeat a criminal accusation.

Justification in this sense is simply a lawful explanation for acting in

contravention of the law or for failing to act where the law imposes a duty
to act. Excuse is simply an answer to a criminal charge where the accused
admits that he did commit the offence charged but that under the
circumstances he could not in law be held accountable or responsible for
it. With exception to the defence of alibi, the defendant may admit the
offence but argue that there was some reason why she should be
acquitted or receive lenient sentence. The effect of a substantive defence,
however, is usually to assert that although the accused may have
committed the actus reus, there is a legal reason why he should not be
liable.

COMPLETE & PARTIAL DEFENCE

In criminal law there are certain defences such as self defence which are
known as complete defence and may lead one to an acquittal. Other
defences can lead to conviction for a lesser offence. For instance,
successfully pleading provocation on a charge of murder leads to
manslaughter. These defences are known as partial defences.

P a g e 47 | 47
GENERAL & SPECIFIC DEFENCE

Defences may be either general or specific. Specific defences are

associated with particular crimes and cannot be applied to other offences.
Provocation is a defence only to murder and no other offence. General
defence on the other hand can be used for a range of different crimes.

INFANCY
Infancy in respect of the law refers to a person who is under the age of
legal majority. In English law, it is under 18 years. This is a system which
provides for immunity from criminal responsibility for persons designated
by law as infants, minors, children, or young persons. In essence, infancy
can excuse criminal liability. The liability of children and young persons
has been divided into three categories:
(i) those under the age of 10;
(ii) those between the ages of 10 and 14;
(iii) and those between 14 and 17.
Children under the age of 10 cannot be criminally liable, and therefore
cannot be prosecuted. This is so because it is irrefutably presumed that
no child under the age of 10 years can be guilty of an offence. Such a
child is said to be doli incapax (not capable of crime). This is based on the
recognition of the maturity of children below 10, who will not have a fully
developed understanding of what is right or wrong nor the ability to
appreciate the consequence of their act fully, however terrible the
circumstance. There can be in rare cases that such a young child will be
subjected to care homes or care proceedings if the crime is a serious one.
Where the most serious offences are concerned, the child will not be
released back into the community until it is decided that he no longer
poses a threat to society. Therefore, if a child is charged with an offence

P a g e 48 | 48
and it is proved that he was under the age of 10 at the time the alleged
offence was committed, the case against him would be dismissed without
any inquiry as to whether he understood or appreciated his act. The
implication here is that despite convincing evidence that the said child
committed a crime knowingly, no criminal liability will be imposed in light
of further evidence that the child had not at the material time attained the
age of 10 years.

When a child is between the ages of 10 and 14, then there is the
presumption of doli incapax. However, this presumption could be rebutted
if the prosecution can prove that the child had ‘mischievous discretion’,
knowledge at the material time that what he was doing was seriously
wrong. Thus, the child could be convicted only if the prosecution proved
beyond reasonable doubt not simply that he committed the actus reus
with mens rea but also that he knew that he was doing something
seriously wrong. In the case of C v DPP 1996, the House of Lords stated
that the rebuttable presumption gave rise to abnormalities and absurdities
and presented the prosecution with difficulty in rebutting it.

The prosecution has to prove that the child knew that the act he was
performing was wrong; in law ‘mere naughtiness’ as the law put is not
enough. It was held in the case of Gorrie 1919 that there had to be very
clear and complete evidence of knowledge of wrong doing before the
presumption could be rebutted.

The child’s knowledge of wrong doing will be deduced from the child’s

o Background;

o Behaviour after the act;

o Mental capacity;

o Reply under police questioning; and

o Attitude in Court.

In the case of Kershan 1902, the jury found enough evidence of

P a g e 49 | 49
knowledge of wrong doing and a boy of 13 was sentenced to ten years
imprisonment with hard labour for manslaughter. Also in the case of JM
(a minor) 1984, the conviction of a 13 year old girl for actual bodily harm
was upheld after she had stabbed another young girl with a broken bottle.
Therefore, until the mid-1990s the law on this area was clear. A
presumption of lack of capacity for children between the ages of 10 and
14 existed and the prosecution had to rebut this claim. That is, the
prosecution must prove that the accused child was at the material time
able to discern between good and evil as was held in the case of R v
Gorrie 1919.

However, in the case of C (a minor) v DPP 1995, the Court held that the
presumption against criminal liability for children in this category no
longer existed on the grounds that with compulsory education, children
matured much more quickly than in the past. The case involved a twelve
year old boy who was accused of stealing a motorcycle; the boy ran away
when he was challenged but he was caught. He appealed on the grounds
that the prosecution had not rebutted the presumption that he lacked
criminal liability. The divisional court refused to entertain this argument.
On appeal to the House of Lords, their Lordships firmly upheld the
existence of the presumption deciding that it came from a long and
uncontradicted line of authority making it very clear that the presumption
did exist. Therefore, if such an important and drastic change in the law
were to be made; it should come from Parliament.

A child aged 14 or over has always been considered as responsible for his
actions entirely as if he were an adult. This comment was made in the
case of Smith 1845 and the position is still the same today. The Court may
however take into cognizance the age of the offender when it comes to
the choice of the Court to be used for its trial and at the end of the case in
a matter of sentencing him if he has been found guilty. See Child Rights
Act 2007.

In the case where the alleged offence was instigated by another person
who is an adult that person rather than being a secondary party becomes

P a g e 50 | 50
the principal acting through an innocent agent. He is then said to have
committed the crime.

- First category- 0-10 years

- Second category: 10-14

years

- Third Category: 14-18 years

P a g e 51 | 51
CRIMINAL LAW

INSANITY
The defence of insanity is mainly concerned with the mental condition of the
accused at the time of the alleged offence. At that time the accused must have
been suffering a permanent or an occasional mental malfunction. It would be
irrelevant that the mental condition of the accused is perfectly normal at the time
of the trial. The defence of insanity is based on the legal responsibility of the
accused at the time of the alleged offence and not simply with whether the
accused was medically insane at that time. The defence actually has little to do
with madness or with any medical definition of insanity. The concept is given a
purely legal definition and not a medical one. Therefore what the law regards as
insanity may be far removed from what a medical doctor will regard as insanity.
That is why it includes conditions such as sleepwalking and epilepsy despite the
fact that medical doctors would never label such conditions as forms of insanity.

In the case where the defence of insanity is successful, that is, it is proved that
the accused was insane at the time he did the act, a special verdict would be
given of ‘not guilty by reason of insanity’. In order for this verdict to be given the
prosecution must have proved the actus reus of the of the offence or must be
able to prove the actus reus of the offence but not the existence of the mens rea.
It was held in the case of Attorney General’s Reference No. 3 of 1998 (2000)
QB401 that if the prosecution fails or is unable to prove that the accused did the
act or made the omission charged, the accused is entitled to a complete acquittal
and discharge on the ground of lack of actus reus despite insanity.

Where the defence of insanity is raised at a trial and is successful, the procedure
under SL law is regulated by Section 73(1) of the Criminal Procedure Act 1965
which provided as follows: “when any act is charged against any person as an
offence and it is given in evidence on the trial of such person for that offence so
as not to be responsible for his action at the time when the act was done, then if
it appears to the Court before whom such person is tried he did the act but was
insane as aforesaid at the time when he did it, the Court shall make a special
finding to the effect that the accused or defendant is not guilty by reason of
insanity. When such special finding is made, the Court shall order the accused or
defendant to be kept in custody as a criminal lunatic in such place and in such
manner as the Court shall direct…”
When the defence of insanity is pleaded by an accused, the persuasive burden of

52
OJJ
CRIMINAL LAW

proof is exceptionally on the accused. This means that if the accused is to raise
the defence of insanity the burden of proving it is upon him. Usually it is for the
prosecution to prove the guilt of the accused beyond reasonable doubt and to
disprove any defence he may raise. In the case of insanity the accused must not
only raise the defence, he bears the burden of proving it. However, he is not
required to prove it beyond reasonable doubt but he must adduce evidence which
satisfies the Court on the balance of probabilities that he was insane at the time
of the alleged offence. It should be noted that it is not only the defence that can
put forward a defence of insanity; this can be raised by the prosecution if the
accused makes his mental state an issue on the case, for instance if the accused
raise a defence of automatism. In such situation the prosecution will then have
to prove that the accused was insane when he committed the act rather than
suffering from automatism. In the case of Bratty v AG for Northern Ireland 1963
Lord Denning stated as follows: “…when it is asserted that the accused did an
involuntary act in the state of automatism, the defence necessarily put in issue
the state of mind of the accused man: and thereupon it is open to the
prosecution to show what his true state of mind was. The old notion that only the
defence can raise a defence of insanity is now gone. The prosecution are entitled
to raise it and it is their duty to do so rather than allow a dangerous person to be
at large.” In such circumstances the burden of proving insanity will be on the
prosecution. Also, in rare cases, the judge may raise the issue of insanity but
must only do this where it is extremely necessary and supported by evidence. In
the case of Dicky 1984, an accused was charged with arson and produced
evidence of hyperactivity. The judge held that this evidence required a direction
to the jury on insanity. The Court of Appeal allowed the appeal against the verdict
on the grounds that the judge should only interfere if all the evidence suggested
insanity and the defence were deliberately evading the issue.

THE M’NAGHTEN RULE

The rules relating to the defence of insanity to were laid down in the case of the
Queen v Daniel M’Naghten 1843 10CQ SF 200 known as the M’Naghten case.
The facts are the accused had tried to kill the then Prime Minister, Sir Robert Peel,
but instead shot and killed the Prime Minister’s secretary. M’Naghten was found
not guilty of murder on the grounds that he was insane. This resulted into huge
public disapproval. In deciding this case, however, the House of Lords outlined

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their reasoning on insanity as a defence establishing what became known as the

M’Naghten rules. These rules were summed up by Tindal CJ as follows: “…the
jurors ought to be told in all cases that every man is to be presumed to be sane,
and to possess a sufficient degree of reason to be responsible for his crimes,
until the contrary be proved to their satisfaction; and that to establish a defence
on the grounds of insanity, it must be clearly proved that, at the time of
committing of the act, the party accused was labouring under such a defect of
reason, from disease of the mind, as not to know the nature and quality of act he
was doing, or if he did know it, that he did not know he was doing what was
wrong…”

Every man is to be presumed to be sane…until the contrary be proved to their

satisfaction
This is normally the general principle, and the basis for which exceptionally the
burden of proving insanity is on the party raising the defence of insanity, which
can be rebutted by the other side.

…At the time of the committing of the act…

The M'Naghten rules are concerned with the state of mind of the accused at the
time of the alleged offence and no other time. The sanity or insanity of the
accused at other times may be relevant in other ways not by way of defence but
for instance in respect of whether he is fit to plead or in respect of sentence or
order to be passed. Such issues relating to the sanity of the accused at the time
of the trial or the time of sentencing have nothing to do with whether or not the
accused was sane or not at the time of the alleged offence.

…Defect of reason…
In order for the defence of insanity to succeed, the accused must have suffered a
defect of reason, that is, the disease of the mind must give rise to a defect of
reason. Simply put, it means that the power of reasoning must be impaired. The
Courts have decided this means a complete loss of the power of reasoning, not
mere confusion or absent-mindedness. Therefore, if a person fails due to
confusion or absent mindedness to use the power of reasoning which he has, he
will not be able to plead under the M’Naghten rule.

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In the case of Clarke (1972), the defendant was accused of shop lifting and
argued that she had been acting absent-mindedly because she was suffering
from depression. She adduced medical evidence to establish that her absent-
mindedness was due to depression. The judge held that this was a defence of
insanity. The Court of Appeal confirmed later by the House of Lords, however,
held that the defendant was not someone deprived of her powers of reasoning by
disease of the mind but simply someone who was momentarily absent minded or
confused. The Court held that the evidence meant she was denied mens rea
rather than raising the defence of insanity.

It does not matter whether the defect of reason was temporary or permanent.
Thus in R v Sullivan 1984 the defence was treated as suffering from a defect of
reason when he suffered from an epileptic fit which is indeed a temporary state.

In order for the defence of insanity to be successful the accused’s defect of

reason must affect his legal responsibility for his conduct in that:

(a)he must prove that he did not know the nature and conduct of his act.

(b)If he did know this he did not know he was doing something wrong

…From disease of the mind…

The defect of reason must be caused by the disease of the mind. The disease of
the mind has a legal definition and not a medical one and covers state of mind
which doctors would be highly unlikely to characterise as disease of the mind. In
legal terms, it means a malfunctioning of the mind. Over the years, it has been
decided that the term ‘disease of the mind’ is not merely confined to diseases of
the brain alone. Any malfunctioning of the mind would be included.

This position was made clear in the case of Kemp 1957 where the Court of
Appeal stated that the law is not concerned with the brain but with the mind, in
the sense that the mind is ordinarily used to mean the mental faculty of
reasoning, memory and understanding. In this case the accused hit his wife with
a hammer for no apparent reason causing her grievous bodily harm. Evidence
had been adduced to show that he was normally a mild-tempered man and a
devoted husband and could not remember picking up the hammer and attacking
her. He claimed that he had lost consciousness because he was suffering from a
disease which had caused a congestion of blood in his brain. The prosecution
argued that the defect of reason had been caused by a physical illness not a

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mental one and was therefore not caused by a disease of the mind and therefore
not within the definition of M’Naghten rules. The presiding judge did not agree
with this view and upheld the trial judge’s finding of insanity on the grounds that
the mind means the ordinary mental faculties of reason, memory and
understanding rather than the brain in the physical sense.

The Courts have also included epilepsy, diabetes and effects of a brain tumour to
lead to a finding of legal insanity. This will occur if it is shown that these
diseases have caused a defect of reasoning resulting in the commission of a
crime. In the case of Bratty v Attorney General for Northern Ireland 1963, Lord
Denning agreed that conditions such as epilepsy could come under the definition
of diseases of the mind. He stated firmly that “any mental disorder which had
manifested itself in violence and is prone to recur is a disease for the mind”.
In the case of Sullivan 1984, the House of Lords addressed the issue when it
looked at the position in regards to epilepsy. The facts of the case are that the
appellant had kicked and injured a friend during an epileptic fit and was charged
with inflicting grievous bodily harm. Evidence adduced suggested that he would
not have been aware that he was injuring any one. The House of Lords held that
epilepsy was a disease of the mind because during a fit, mental faculties would
be impaired to the extent of causing defect of reason.

In R v Hennessy 1989, the accused was charged with driving while disqualified.
He gave evidence that at the time of the offence he had failed to take his usual
doze of insulin due to stress and depression and as a result was suffering from
hyper-glycaemia which it was argued put him in a state of automatism.
Hennessy then pleaded guilty since successfully pleading insanity will lead to
committal to a mental institution and then appealed against his conviction. His
appeal was dismissed.

This case was contrasted with the case of Quick 1973, an earlier Court of Appeal
decision where the defence of automatism was allowed and entitled the possibly
unworthy defendant in question to a full acquittal. The diabetic accused was a
nurse at a psychiatric hospital who attacked a patient. The defendant claimed
that the attack had occurred while he was suffering from hypo-glycaemia caused
by low blood sugar in his blood after he had taking insulin without eating and so
he had acted without knowing what he was doing. He, therefore, argued that the
defence of automatism should be available for him. The trial judge held that

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automatism cannot come in and only the defence of insanity. On appeals, the
Court of Appeal held that Quick’s mental condition was not caused by his
diabetes but by his use of insulin which was an outside source, therefore, the
defence of automatism should have been allowed.

In the case of R v Burgess 1991, the accused and his friend Ms. Curtis had spent
the evening watching videos at her flat and whiles sleeping the accused hit her
over the head with a bottle and the video recorder and then attempted to strangle
her. When she cried out, he appeared to come to his senses and he voluntarily
called an ambulance for her. Having been charged with wounding with intent
under Section 18 of the Offences against the person Act 1861, he argued that he
fell within the defence of automatism. The judge held that the correct defence on
the fact was insanity. The accused was found ‘not guilty by reason of insanity’
and ordered to be detained in secure hospital. His appeal was dismissed on the
grounds that as his sleep walking was caused by an internal factor, the judge had
given the correct direction.

Nature and Quality of the Act

This is the case where the accused because of his defect of reason caused by
the disease of the mind does not understand the physical nature and quality of
his act. In Kemp 1957, the defendants attack occurred when he had lost
consciousness and in Burgess 1991, the man claimed that he was asleep.
Neither, therefore, knew the nature and quality of their act.

In the case of Codere 1916, the nature and quality of the act was held to mean
the physical rather than the moral nature of the act. A classic example of an act
is where the defendant cut the victim’s throat under the delusion of slicing a loaf
of bread it. It is not that they do not realize cutting someone’s throat is wrong but
that they do not know that they are cutting someone’s throat

Knowledge that the Act was wrong:

This covers the person who is aware of what he is doing but does not realise that
he is doing something wrong. This had been held to mean legally rather than
morally wrong. This however can be difficult to prove. In Codere 1916, the Appeal
Court made it clear that an accused would not be able to rely on such a
contention just because he feels that he is not doing anything morally wrong, if

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he does know that his act is legally wrong. In the case of Windle 1952, the
accused killed his wife with an overdose of aspirin. When giving himself up to the
police he said: “I suppose they will hang me for this”. There was medical
evidence that though he was suffering from a mental illness, he knew that
poisoning his wife was legally wrong. The Court of Appeal upheld his conviction
and he was hanged.

AUTOMATISM
The defence of automatism comes into play where the conduct of the accused
lacks the basic requirement of being voluntary. It is a principle of law that where
the actus reus of an offence requires conduct on the part of the accused, liability
would only arise where the conduct is willed. In other words, the basic
requirement for criminal liability is that the actus reus of an offence must have
been committed voluntarily. Therefore, an accused would have a complete
defence if they can show that at the time the alleged offence was committed he
was not in control of his bodily movement, rendering his conduct involuntary.
The accused can bring up a defence of automatism whereby in a state of
unconsciousness he committed the act.

The defence is limited to cases where there is a total destruction of voluntary

control. Impaired or reduced control is not enough as was laid down in the case
of AG Reference No.2 of 1992 (1994 QB1991). In such a situation, the movement
of a person’s body or limbs are involuntary. In the case of Bratty v AG for
Northern Ireland 1963, Lord Denning defined automatism and stated as follows:
“No act is punishable if it is done involuntarily and an involuntary act in this
context, some people nowadays prefer to speak of it as automatism, means an
act which is done by the muscles without any control by the mind…or an act done
by a person who is not conscious of what he is doing. However, to prevent
confusion, it is to be observed that in criminal law an act is not to be regarded as
an involuntary act simply because the actor does not remember it. Nor is an act
to be regarded as an involuntary act simply because the doer could not control
his impulse to do it.”
The law gives the defence a very narrow interpretation emphasizing that there
must be a total loss of voluntary control. In the case of Broome v Perkins (1987),

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this was clearly shown. The facts are the accused got himself into
hypoglycaemia (low blood sugar state) and during this period drove home in a
very erratic manner from work hitting another car at one point. Afterwards, he
could remember nothing about the journey but seeing the damage to his car
reported himself to the police. Medical evidence suggested that it was possible
to complete a familiar journey without being conscious of doing so and although
his awareness of what was going on around him could be imperfect he would be
able to react sufficiently to steer and operate the car even though not very well.
The Court held that since the accused was able to exercise some voluntary
control over his movement, he had not been acting in an entirely involuntary
manner and therefore the defence was not available. This decision was strongly
criticized as being very harsh. However, it was followed in the case of AG
Reference No. 2 of 1992 where while driving a lorry down a motorway the
accused crashed in to a car parked on the way killing two people. Expert
evidence showed that while he had not fallen asleep at the wheel, he had been
put into a trance-like state by the repetitive vision of the long flat road which
reduced but did not eliminate awareness of what he was doing. The Court held
that his state did not amount to automatism, again implying that reduced
awareness cannot amount to the defence.

Therefore, what is required is that the mind of the accused is not controlling his
body or his limbs at all. It is not sufficient if the mind of the accused is acting
imperfectly in the case where he’s reacting to stimuli and so acts in a purposive
way. In the case of Isitt (1978), the defendant was involved in a road accident
and it was clear that he was drunk; he returned to his van and then drove off at a
very high speed pursued by a police car. He evaded the pursuing car; he evaded
a police road block and ran off through fields. When he was questioned at home,
he claimed that he did not remember the incident and during his trial for
dangerous driving, he adduced psychiatric evidence to show that the original
accident had caused him memory loss. It was claimed that his subconscious
mind had taken over so that he did not appreciate what he was doing when he
was driving and although he knew he was trying to get away from the scene of
an accident he was totally unaware of legal restrictions and moral concerns. He
was convicted and his appeal to the Court of Appeal was dismissed. Lawton LJ
stated as follows: “It is matter of human experience that the mind does not
always operate in top gear, there may be some difficulty in functioning. If the
difficulty does not amount in law to either insanity or automatism, is the accused

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entitled to say ‘I am not guilty because my mind was not working in top gear’? In
our judgement he is not. In our judgement of the psychiatric evidence, it is clear
that he was accepting that the appellant’s mind was working to some extent. The
driving was purposeful driving, which was to get away from the scene of an
accident. It may well be that because of panic or stress or alcohol the appellant’s
mind was shut to the moral inhibitions which control the lives of most of us. For
the fact that his moral inhibitions were not working properly, in our judgement
does not mean that the mind was not working at all.”
EXTERNAL CAUSE (THE CAUSES OF AUTOMATISM)
The inability to control one’s act must be caused by an external factor such as a
bang or blow to the head with a hammer causing concussion or the
administration of an anaesthetic. If it is due to an internal factor, the defence of
automatism will fail. It was against this back drop that the Court distinguished
between the case of Quinn and Hennessy stating that Hennessy’s
hyperglycaemia was triggered by an internal factor, his diabetes, and was
therefore within the legal definition of insanity but the causes of Quick’s
hypoglycaemia were the insulin he had taken, and the fact that he had drank
alcohol and not eaten were all external factors which fall under the defence of
automatism. The lawyers in the Hennessy case argued that the hyperglycaemia
was caused by the failure of the accused to take insulin which in turn was
caused by stress and depression which he suggested were external factors but
in the Court of Appeal Lord Lane stated thus: “In our judgement, stress, anxiety
and depression can no doubt be the result of the operation of the external factors
but they are not it seems to us in themselves separately or together external
factors of the kind capable in law of causing or contributing to a state of
automatism.”

SELF-INDUCED AUTOMATISM
Automatism can be said to be self induced where it results from something
which the accused had done or failed to do. The defence of automatism may not
be available if the automatism was caused by the fault of the accused. For
instance, where a person loses control of his action through drinking too much
alcohol or taking illegal drugs, the defence is unavailable.

In the case of Bailey 1983, the accused was a diabetic who attacked and injured

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his ex-girlfriend’s new boyfriend during an attack of hypoglycaemia. Feeling sick

before the incident, he had taken insulin but with no food. The Court of Appeal
held that self-induced automatism other than that caused by alcohol or illegal
drugs can provide a defence, if the conduct of the accused does not amount to
recklessness, taking into account his knowledge of the likely result of anything
he has done or failed to do. In Bailey’s case, this meant that he would have a
defence if he did not realize failing to eat would put him into a state in which he
might attack someone without realizing it. If he was aware of this and still failed
to eat he was reckless and the defence ought not to be available to him.

In the case where the defendant takes drugs which have sedative effect and then
commits a crime involuntarily, the defence of automatism may only be available
if his reaction to the drug was unexpected. In the case of Hardie 1984, it was held
that the person whose condition of automatism was due to taking valium could
rely on the defence if he did not expect such reaction even though the drug had
not been prescribed by a doctor.

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INTOXICATION
As a general rule intoxication caused by the defendant’s own voluntary act does
not of itself excuse him from criminal liability but where the primary cause of
intoxication is involuntary conduct he may be exempted from criminal liability.
Intoxication generally can be caused by alcohol or drugs or a combination of
both; the same legal principle applies whichever the cause.

The defence of intoxication poses a very serious problem for criminal law. On the
one hand, it can be argued that intoxicated people are not in full control of
themselves and so do not think rationally. So, they should not be held as liable
for their actions as when they know exactly what they are doing. On the other
hand, there are obvious policy reasons for not allowing people to use intoxication
to excuse their criminal behaviour. Against this backdrop, the defence of
intoxication is only allowed in a limited number of circumstances and only where
it is clear that the defendant lacked the mens rea of the offence. Intoxication
cannot be a defence which may be pleaded in answer to a charge when done
voluntarily and so does not operate to excuse the defendant’s conduct. The
defendant cannot put up an excuse by saying he would never have done such act
if he was sober as was held in the case DPP v Majewski 1977. The only
relevance of voluntary intoxication is in respect of the question whether the
defendant had the mens rea required for the offence. Therefore, the most
important point is that if the defendant did actually have the mens rea of the
crime then intoxication cannot be a defence even if it was involuntary. This was
so held in the case of R v Kingston 1994 by the House of Lords.

SPECIFIC AND BASIC INTENT

The principal restriction imposed on defences based on intoxication is that

voluntary intoxication can only give rise to a defence to crimes of specific rather
than basic intent. It is the case that any offence for which only intention would
suffice as the mental element can be regarded as an offence of specific intent.
Thus murder, wounding with intent, etc would all appear to be crimes of specific
intent and it is open to the accused to adduce evidence that he lacked the
specific intent required by these offences due to voluntary intoxication. All
offences other than those of specific intent can be regarded as crimes of basic
intent and the accused would not be allowed to show that he lacked the mens rea
or was in a state of automatism due to voluntary intoxication. Crimes of basic
intent clearly include manslaughter, malicious wounding, rape, etc. Thus, in these

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cases, even the fact that the accused had completely ‘blacked out’ as was
alleged in the leading House of Lords case of DPP V Majewski is not a defence.

The leading case in the defence of intoxication is DPP V Majewski where the
accused had spent 24 hours getting drunk and taking drugs and then smashed
windows and attacked a police officer. Majewski argued that he had been so
intoxicated that he could not remember the incident at all and therefore could not
have formed the necessary mens rea. The trial judge ruled that intoxication was
only a defence to crimes of specific intent and since the accused was charged
with offences of basic intent, his intoxication gave him no defence.

INVOLUNTARY INTOXICATION
If the defendant is regarded as being involuntary intoxicated, then intoxication
may be a defence to any crime whether one of basic or specific intent, provided
the defendant lacks mens rea.

There are three ways where a person would be treated as involuntary intoxicated:

 Prescribed drugs- Taking drugs on prescription from a doctor can lead to

involuntary intoxication and will not be regarded by the Court as reckless.
Therefore, intoxication as a result of taking them will be a defence to
negative mens rea whether the offence be one of specific or basic intent.
This is only in the case where he had taken the drugs in accordance with
the instructions. However, if the accused had formed the requisite mens
rea for the offence he will be convicted.

 Soporific Drugs- This is a situation where the accused had taken a non-
dangerous drug that normally has a soporific effect, making a person
relaxed or sleepy. They will be treated as involuntarily intoxicated and that
would be a defence provided the defendant was not reckless in taking the
drug. In the case of Hardie 1985, the accused had been living with a woman
at her flat but the relationship broke down and she asked him to leave. Very
upset the accused tried to calm his nerves by taking valium, a tranquilizer
which had been prescribed for the woman. He then started a fire in the bed
room while the woman and her daughter were in the living room. He was
charged with and prosecuted for damaging property with intent to
endanger the life of another or being reckless as to whether another life

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was endangered. He was convicted. On appeal, the Court of Appeal

confirmed that as a general rule, self-induced intoxication from alcohol or a
dangerous drug could not be a defence to ordinary crimes involving
recklessness, since the excessive taking of alcohol or dangerous drug was
itself a reckless behaviour. The Court, therefore, held that Majewski did not
apply. Unlike alcohol and other dangerous drugs which are liable to cause
unpredictability or aggressiveness and thus give rise to the conclusive
presumption of recklessness it was not known that taking valium will be
liable to render a person aggressive or incapable of appreciating risks or
have other side effects such that its self administration would itself have
an element of recklessness. In this vein, the Court held that where the
normal effect of a drug was merely sedative, different rules would apply.
The issue according to the Court as whether the taking of valium had itself
been reckless taking into account

 the fact that the valium was not unlawful in prescribed quantities,

 that the accused did not know the drug was likely to make him behave
as he did,

 that he had been told it would do him no harm and that the normal effect
of the drug was soporific or sedative,

the Court of Appeal quashed his conviction as Hardie was held to have a defence.

 Laced Drinks- Involuntary intoxication may also arise where the defendant
was unaware that they were consuming the intoxicant. It may for instance
arise where the accused had his drink laced with alcohol as in the case of
Kingston. (However, in this case the drink of the accused was laced but he
could not rely on the defence as he had the requisite mens rea of the
offence) or the accused is drugged by others.

THE DUTCH COURAGE RULE

This rule refers to where a person gets himself intoxicated by taking drink or drug
or both in order to summon up the courage to commit a crime. If this is the case,
intoxication would not even be a defence to any offence of specific intent.

This was so held in the case of AG for Northern Ireland v Gallagher 1963 where

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the accused had wanted to kill his wife. He bought a knife and a bottle of whisky
which he drank to give himself Dutch courage; he then killed his wife with the
knife. The House of Lords held that drunkenness was no defence for a sane and
sober man who being capable of forming an intention to kill and knowing it will
be legally wrong to do so forms the intention to kill and then gets so drunk that
when he does carry out the attack he is incapable of forming that intention. Lord
Denning stated thus: “If a man whiles sane and sober forms an intention to kill
and makes preparation for it knowing it is a wrong thing to do and then gets
himself to drunk so as to give himself Dutch-courage to do the killing and whiles
drunk carries out his intention, he cannot rely on this 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…the wickedness of his mind before he got drunk is enough to
condemn him coupled with the act which he intended to do and did do.”

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SELF DEFENCE
Self defence is considered to be a general defence in which the accused will
accept that he did commit the actus reus and that he intended to bring it about
but insists that he should not be held liable for doing so based on justification.
Self defence is a basic right of a person to use force or threaten to use force in
order to repel an attack by another that could result in death or grievous bodily
harm to him, other persons and loss of property. However, as Bankole
Thompson in his book ‘The Criminal Law of Sierra Leone’ says, self defence “…is
not a legal license to kill. Generally, it will only avail an accused relying on it who
can show that he was unjustifiably attacked. However, in exceptional cases, it
may avail an attacker who after initiating the physical encounter withdraws in
good faith evidencing no intention of restarting it and then is pursued by the
victim now the attacker and threatened with deadly force. In order to succeed on
a self-defence defence, an accused must satisfy each of the following
requirements:

1. That he did not initiate or instigate the attack;

2. That he was threatened with either death or grievous bodily harm;

3. That the threat was immediate and not future;

4. That he honestly and reasonably believed he was in danger of death or

grievous bodily harm or loss of property; and

5. That the force used in repelling the attack was reasonable and necessary in
the circumstance.

A person can only rely on self defence if his action was necessary because of a
threat of unjustified harm to himself, someone else or to property. The
contemporary rule of self defence is that it renders permissible the defence of
other persons. In such case, one can legitimately act in self defence of one’s
spouse, parent, siblings, other relations, a friend or even a stranger. This position
transcends the old common rule which limited the defence to only those with
whom the defendant had a special relationship.

IMMINENT THREAT AND PRE-EMPTIVE STRIKE

A defendant will only be justified in reacting to a threat which is imminent. This

does not mean that the defendant has to wait before he is attacked or hit, before

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attacking or hitting back but it does mean that there must be some imminent
danger or threat before/about the attack. Therefore, the person can use force to
ward off an anticipated attack provided it is anticipated as imminent. In the case
of AG Reference No. 2 of 1983 where D’s shop had been attacked and damaged
by rioters, fearing further attacks he made some petrol bombs which he intended
to use to protect himself and his property. He was charged with making an
exclusive substance in such situation or circumstances as to give rise to a
reasonable suspicion that he had not made it for a lawful object contrary to
Section 4 of the Explosive Substances Act 1883. He pleaded that his lawful
object was self defence and he was acquitted. See the case of Mallick v DPP
1989.

SELF-DEFENCE & RETREAT

Before it was believed that in order for self-defence to apply the accused must
have retreated as far as possible from the situation before using force. Therefore
if a person had a chance to run away from an attacker but instead chose to fight
back, he might not be covered by the defence. However, this is not the case now.
It was first watered down in the case of Julien 1969 where it was said that what
is necessary is that he must demonstrate by his action that he does not want to
fight. In the case of MCinnes 1971 it was held that in order for force to be
considered reasonable in the circumstances, the defendant’s behaviour should
clearly have demonstrated that he did not want to fight but simply failing to take
an opportunity to run away did not in itself make the defence unavailable. In a
latter case Bird 1985, it was held that it was not necessary to demonstrate by
ones actions an unwillingness to fight.

In the case of Kargbo v R ALRSL 1968,69, the appellant was charged in the then
Supreme Court (now High Court) with murder. The facts are that in the course of
a quarrel over the ownership of a cup the deceased struck the appellant, his
brother, several times. The appellant did not retaliate and tried to leave but his
brother knocked him to the ground and sat on him. While the two men were
struggling on the ground, the appellant saw a machete which was lying nearby
and struck his brother with it, inflicting injuries on him and from which he died. At
the trial, the appellant admitted the fight but denied that he had killed his brother
wilfully. The appellant was convicted on three grounds. One of the prosecution’s

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contentions in the appeal was that the appellant was in a position of retreat when
he inflicted the fatal blow and was therefore rightly convicted of murder. The
Court of Appeal held that “when a person defends himself, he is not obliged to
retreat, he can attack his assailant until he is out of danger.” If there was a duty
to retreat, a person would never be able to use pre-emptive force.

The position in respect to property was established in the case Hussey 1924,
where it was held that in defending your home, a person need not retreat giving
up his home to the attacker.

THE DEGREE OF FORCE PERMITTED

What will constitute reasonable force is a matter for the judge or jury to decide
balancing the amount of force used against the harm the accused sought to
prevent. In the case of AG for Northern Ireland’s Reference No. 1 of 1975, a
soldier in Northern Ireland stopped a man who started to run away. Mistakenly
thinking that the man was a member of the IRA, the soldier shot and killed him.
He was charged with murder and argued that he had both the public and private
defences. The House of Lords said it was a question for the jury whether the
force used by the soldier was reasonable or excessive and in deciding this they
had take into account the limited time for reflection in these types of
circumstances. In this case they would have to balance the high risk of death or
serious injury to the man running away against the harm which could be avoided
by preventing the man’s escape if he was a terrorist.

In the case of Palmer 1971, Lord Morris stated as follows “there are no
prescribed words which must be employed in or adopted in summing up, all that
is needed is a clear exposition in relation to the particular fact of the case of the
conception of necessary self defence…if there has been an attack so that
defence is reasonably necessary, it would be recognized that a person defending
himself cannot weigh to a nicety the exact measure of his necessary defensive
action”. Therefore, the personal beliefs of the accused, in the situation are also
pertinent to the issue.

However, it has now been made abundantly clear that an objective view is taken
when assessing whether the defendant has used reasonable or excessive force.
Should the force be found to be excessive by this standard, the defence will fail

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and the defendant will be guilty of whatever crime that has been committed. This
was made clear in the case of Clegg 1995 where the accused was on duty at a
Northern Ireland check point when a car containing joyriders failed to stop.
Although the accused admitted he did not think the car contained terrorists, he
shot at the car four times killing one of the passengers. He was convicted of
murder. His argument was that he had shot because the car was driving towards
a soldier and he thought that the soldier’s life needed protection. The soldier in
question was found to have an injured foot after the incident and it was
suggested that the car had driven over it; in fact the soldier’s injury was later
discovered to be caused by someone stamping on his foot; in an attempt to
fabricate evidence to support his defence, the defendant had lied. In light of this
evidence was that he had used excessive force in shooting.

MISTAKE AS TO THE DEGREE OF FORCE (PROPORTIONALITY)

If it is clear that the defence of force which the accused used in the circumstance
as he believed them to be was excessive, that is such that no reasonable person
making all due allowance for the pressure under which the accused was
operating could consider justified, that use of force will be unlawful. However,
this area of the law has been subject to so much confusion. The original position
laid down in the position of Williams 1987 was that the matter had to be decided
objectively. A dramatic change was however brought about by the case of
Scarlett 1993. Scarlett was the licensee of a bar in which the victim came into
extremely drunk. The accused asked him to leave. He refused to go and a
struggle ensued. In such a situation, licensees are usually entitled to use
reasonable force to eject such persons. The accused pushed a man out through
a swing door into a lobby which gave on to some stairs of which the victim fell
down the stairs and died. The accused was convicted of constructive
manslaughter. His appeal was allowed on the basis that he could rely on the
private defence. At the trial he had given evidence that he had thought that he
was behaving reasonably and he had not believed there had been any risk of the
victim falling down the stairs. Beldam LJ stated that the jury should be told to
acquit “unless they were satisfied that the degree of force used was plainly more
than was called for by the circumstances as the defendant believed them to be
and provided that he believed the circumstances called for the degree of force
used, he is not to be convicted even if his belief was unreasonable”. See the
cases of R v Owino 1995 & Anthony Martin 2001.

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MISTAKE
Generally, making a mistake about the law will not provide the defence. Lord
Bridge in 1982 stated that a fundamental principle existed that ignorance of the
law is no defence in criminal law. If for instance, the defendant does not know of
the existence of a law, he would have no defence to the crime of such offence
even though he may have been unaware that such an offence existed. With some
cases falling under mistake of fact, however, there could be a defence if the
mistake is such that it prevents the accused forming the mens rea necessary for
the crime in question. Therefore, a defendant’s mistake may mean that he lacks
the mens rea of the offence.

The mistake must be one of fact not of law and the mistaken belief that your
conduct is not illegal will not suffice as a defence. In the case of R v Reid 1973, a
motorist had been asked to take a risk test for alcohol; mistakenly believing that
the police officer had no legal right to take the test in the particular
circumstances, he refused to do so. The Court held that a mistake as to the law
was no defence against a charge of refusing to provide the specimen.

For offences of strict liability, there is no mens rea to negative, so mistake would
be irrelevant in this context and not serve as a defence.

For many years it was considered that mistake could only be relied on as a
defence if it was a reasonable mistake to make but this was to change in the
1970s. In the case Tolson 1889, the accused was able to satisfy the Court that a
mistake was a bold and honest mistake and a reasonable one to make in the
circumstance. The defendant’s husband had deserted her and she later heard
from people close to her husband that he had been killed from drowning. Six
years later, therefore, she went through a ceremony of marriage with another
man. The first husband then turned up again. Mrs. Thompson was convicted of
bigamy but this was quashed by the appeal court. Stephan J states as follow “the
conduct of the woman convicted was not in the smallest degree immoral, it was
perfectly natural and legitimate assuming the fact to be as she supposed, the
infliction of more than a nominal punishment on her would have been a scandal,
why then should the legislature be held to have wished to subject her to
punishment at all?”. In the case of B (a minor) v DPP, the House of Lords have
ruled Tolson was bad law and it was not necessary for a mistake to be
reasonable. What mattered was whether the mistake prevented the defendant
from having the mens rea of the offence. This would be the case where the mens

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rea of the offence is subjective but where it is objective the mistake is only likely
to prevent the existence of the mens rea if it was reasonable.

The case of Morgan 1972 which concerned the offence of rape requires a
subjective form of mens rea. Morgan had been drinking with some colleagues
and during the evening invited them to have sexual intercourse with his wife
saying that if she resisted or screamed they should ignore this as it was only her
way of adding to her sexual pleasure. The men duly ignored the woman’s
protests and had sexual intercourse with her; they were charged with rape and
pleaded not guilty on the grounds that they had believed she was consenting but
they were convicted and appealed. The House of Lords stated that if the accused
honestly believed their victim was consenting, they did not have the mens rea for
rape even though they were mistaken in belief and their mistake could not even
be said to be reasonable one. On the facts of the case their Lordships held that
their convictions were correct and were allowed to stand. The men must have
realised that the woman was not consenting and had not made any mistake at all.

It was established in the case of Kimber 1983 that the rule in Morgan concerning
unreasonable mistakes applied not just to rape but to all offences requiring a
subjective mens rea. Thus where an offence requires intention or Cunningham
recklessness, an honest mistake however unreasonable will be a defence.

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NECESSITY
The defence of necessity essentially applies to situations in which the person is
faced with the choice of committing a crime or allowing himself or someone else
to suffer or be deprived in some way. In so far as its application within the
domain of the criminal law is concerned, necessity has always been seen as a
choice between two evils. One of which involves contravening the law and the
other infliction of some serious harm on the person or other person, violating the
law always being perceived as the lesser and justifiable option. In the case of
Moore v Hussey 1609, it was held that the law can admit certain cases of just
excuse when they are offended in the letter and where the offender is under
necessity either of compulsion or inconvenience. In Johnson v Philips 1976, it
was stated that a police officer would be entitled to direct motorists to disobey
traffic regulations if this was reasonably necessary for the protection of life or
property.

However, there has been a fear that the defence might go too far towards
providing excuses for law breaking and so it has many restrictions. The fear was
seen in the case of Dudley & Stephens 1884. The facts are that the two
defendants, another man and a seventeen year old cabin boy had been adrift in
the ocean in an open boat, 1600 miles from land. They had eaten no food for
eight days, they, therefore decided to kill and eat the cabin boy who had become
very weak. Four days later, a passing ship discovered them. The men were
charged with murder. The jurors obviously had some sympathy for the plight of
the shipwrecked crew because although they found that the defendants had
indeed killed the boy, they wished to record a special verdict. This recognized the
fact that the men had little hope of an early rescue and would probably have died
if they had not committed the act. It was also acknowledged that the boy was
likely to have died anyway, although it was stressed that there was no greater
necessity to kill him rather than one of the men. The divisional Court was not
prepared to allow a defence in these circumstances. Lord Coleridge had
sympathy with the suffering of the defendants and appreciated the difficulties of
resisting temptation in such a dreadful situation but stated that the judges were
“often compelled to set up standards…it is therefore our duty to declare that the
prisoners’ act in this act was wilful murder, that the fact are stated in the verdict
are no legal justification of the homicide and to say that in our…opinion are upon
this special verdict guilty of murder”. The men were sentenced to be hanged but
on appeal it was reduced to manslaughter and were sentenced to six months

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imprisonment. This restrictive approach was again seen in the case of

Southwark 1971 which involved a homeless family who had squatted in an
empty council flat. The defendant gave evidence that it did not want to squat but
saw no other way to find a home for his family. While expressing sympathy the
Court granted the Council the order to evict them from the home. Lord Denning
stated that while a defence of necessity had always been available in case of
imminent danger in order to preserve life such a defence had to be carefully
examined otherwise he said “necessity would open a door which no man could
shut…if hunger were once allowed to be an excuse for stealing, it would open a
way through which all kinds of disorder and lawlessness would pass. If
homelessness were admitted as a defence to trespass, no man’s house would be
safe. The pleas would be an excuse for all sorts of wrong doing so the Courts
must for the sake of law and order take a firm stand. They must refuse to admit
the plea of necessity to the hungry and the homeless and trust that their distress
would be relieved by the charitable and the good.”
As a result in the past some legal academics have asserted that English law did
not recognize a defence of necessity at all. Largely on the ground that if it was
not allowed as a defence to a crime in the desperate circumstances of Dudley &
Stephens, the Court will be unlikely to allow it in any other circumstances.
However, in the case of Richards 1986, Lord Goff commented that there was no
doubt that a defence of necessity existed even though its scope was not well
established. In the high profile case of Re A (children) 2000, involving the
medical separation of twins, the Court of Appeal paved the way for an
established defence of necessity. It expressly stated that a defence of necessity
existed at common law.

Lord J Brooke stated that there were three requirements for the application of the
defence of necessity:

- The act was needed to avoid inevitable and irreparable evil

- No more was done than was reasonably necessary for the purpose to be
achieved.

- The evil inflicted was not disproportionate to the evil avoided.

A further criterion was added following the judgement of R v Shayler 2001, which
is

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- The evil must be directed towards the defendant or the persons for whom
he had responsibility.

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