Developments in Criminal Law

1. Developments in Criminal Law David Ormerod

2. Sources of Criminal Law • Pepper v Hart (that a Govt Minister’s statements may be used to assist interpretation) • Should not be applied in construing an ambiguous criminal provision to enlarge the scope of liability: Thet v DPP • May be prayed in aid by the defence: R v Tabnak

3. Interpretation • No defence of “de minimis” in criminal law: Scott (2008) • Partnership - possible for partnership to be criminally liable in its own right separately from individuals

4. Manslaughter & drugs • D prepares syringe, V self injects – what liability for D? HL • If V is fully informed responsible adult there is never any liability on D (apart from supply) • D has not administered the drug • Principle that V’s voluntary act breaks the chain is “fundamental” • D not liable for s 23 OAPA as V’s act breaks chain of causation. • No unlawful act manslaughter charge.

5. Kennedy No 2 in House of Lords • Crown could not establish that D administered (that requires actual injection) • D holding tourniquet for V will not render D liable – Rogers wrongly decided. • NB Burgess [2008] – D liable if he assisted in finding V’s vein. • Nothing said casts doubt on gross negligence manslaughter – still available if D leaves V in difficulty • Empress Cars – restricted to environmental crimes.

6. Mens Rea • G (2003) HL – subjective test of recklessness being widely applied. • G is not to be restricted so as to require D to have foreseen an “obvious and serious” risk : Brady

7. G, strict liability & Article 6 • Art 12 Sexual Offences NI (Order) 2008 • Penile penetration of a child under 13 a strict liability offence, and belief in consent or the age of V has no application. • Even where D reasonably believed that the child was over 16 he commits the offence.

8. Duress • Duress is tested almost exclusively by objective standards: Hasan • Duress is no defence to murder even if killer is acting as a secondary party and is a child: Wilson • Law Comm - recommend that ‘it should be possible for the jury to acquit of homicide if D proves that he took part in a killing only in response to an imminent threat of death or life-threatening injury (‘duress’).

9. Voluntary exposure to threats • Ali [2008] EWCA Crim 716 • Robbery by D who pleaded duress • D had “got in with bad company” • D was denied the defence if he had or ought to have realised that he was exposing himself to the risk of threats of violence. • No need to prove D was joining a criminal gang

10. Doli Incapax: DPP v P • Presumption that child 10-14 has no mischievous discretion abolished by Art 3 of the Crim Justice NI Order 1998 • Is the defence itself still available for D (10-14) who raises some evidence that he did not know what he was doing was seriously wrong. Crown must disprove defence. • NO ! – R v T (2008)

11. Intoxication: R v Heard • Section 3 of the Sexual Offences Act 2003 (E & W) / Art 7 Sexual Offences (NI) Order 2008 • creates an offence of “intentional sexual touching” • Voluntary intoxication is no defence to s 3 SOA 2003 (intentional touching) • Wide impact as most SOA cases are intentional touching/penetration etc

12. Heard – not so basic? Majewski • Problematical case • Not clear that all cases can be divided into pure recklessness or intent • Specific intent is a crime where the intent goes beyond the immediate actus reus (eg criminal damage with intent to endanger life). • Look to whether a bolt on/further actus reus element is present

13. Heard – the limits • Person who flails around when drunk and touches V does so “accidentally” • Consider liability of : • D who is on LSD trip and touches V ? • D who makes a drunken error about how close he will come to touching V? • Does Heard undermine Majewski?

14. Private defence • D can plead a genuine mistake as to the need to use force in expelling what he thinks is a burglar. The amount of force used must be reasonable: Faraj (2007)

15. Insanity: Johnson • If D knows his act is legally wrong he cannot plead insanity • CA rejects argument for extending the scope of the defence of insanity to include acts D knew to be legally wrong, but thought were morally justified. • The law remains as settled in R v Windle [1952] 2 Q.B. 826.

16. Joint Enterprise Liability Powell and Daniels, English (1999) D, secondary party, liable for murder if: • realised that the principal might kill with intent to do so, or • realised there was a risk that the principal might cause gbh with intent. • If fundamentally different acts by P, D not liable: English

17. Joint enterprise - issues to resolve (i) When does the fundamentally different rule bite? Is it only when D has not foreseen that P might kill? • What does fundamentally different mean? • What effect has a change of mens rea by P?

18. Murder if D intended that P would kill V intending to kill him OR D realised that P might kill V with intent to kill him 2. Did D realise that P might kill V with intent to cause gbh? OR Did D intend that gbh would be caused to V; OR Did D realise that P might cause gbh to V intending to cause him such harm 3. What was P's act which caused the death of V? 4. Did D realise P might do this act? If yes, murder. If no, go to Q 5. 5. What act or acts did D realise that P might do to cause V gbh? 6. Are you sure that the act which D realised P might do is not fundamentally different to P's act which caused V’s death? If yes, guilty of murder. If no, not guilty of murder.

19. Incitement • D by text message incites V to engage in sexual activity. • V is undercover officer so not under 13 • D thinks and intends V is under 13 • D has committed the act of incitement • But offence entirely in D’s mind? • D denied defence under s 10 because undercover officer claims to be under 13

20. Incitement • Serious Crime Act 2007 Part 2 • Abolishes common law incitement • Replaces with three new offences • Incredible complexity and technicality • Very strange overriding defence of reasonableness • Not yet in force • A sign of things to come?

21. Section 44 • Doing an act capable of encouraging or assisting the commission of an offence, with intent. • Actus reus • An act, capable of encouraging, includes hostile or friendly encouragement • Mens rea • D intends to assist or encourage • D reckless as to whether E will have mens rea • D believes or intends circumstance and consequences of the full offence

22. Section 44 • Defences • No defence of ignorance of criminal law • No defence that full crime not committed • Defence for D to prove he acted reasonably • Defence if D is the “victim” of the crime he intends E to commit • Procedure • Triable either way • D can be convicted under s44 even if D is principal offender

23. Section 45 • Doing an act capable of encouraging or assisting an offence, believing that the offence will be committed and act will encourage or assist. • Actus reus • An act, capable of encouraging.. • Mens rea • Belief acts will assist/encourage • Belief offence will be committed • Belief or recklessness as to E’s state of mind • Mens rea as to consequences and circumstances of the full offence

24. Section 46 Doing an act capable of encouraging or assisting the commission of one or more of a number of offences; believing one or more will be committed & that act will encourage or assist one or more of them. • Actus reus • Doing an act capable of encouraging … • Mens rea • Belief one offence will be committed • Belief D’s act will assist/encourage one offence • Belief or recklessness as to E’s mens rea for one of the offences • Belief or recklessness as to consequences or circumstances of one offence

25. Solicitation to Murder : Abu Hamza • Incitement or solicitation of murder triable here even if • V is foreigner • D is foreigner • Incitee is a foreigner • Proposed killing is to be committed abroad

26. Causing/allowing death of child etc • D must be member of same household as V in frequent contact with V (s.5(4)). • V must be at a significantrisk of serious physical harm (s.5(6)) “Significant” is an ordinary English word: Mujuru (i) Causing death: • Unlawful act (ie offence s.5(5)) (ii) Allowing death • Death from unlawful act • D aware of/ought to have been aware of risk • D failed to take such steps as he could reasonably have been expected to take to protect V from the risk

27. Infanticide • There is no requirement that all the ingredients of an offence of murder be proved before a defendant could be convicted of infanticide contrary to s.1(1) of the 1938 Act. /Art 1 Infanticide Act (NI) 1939 • "notwithstanding that the circumstances were such that but for this Act the offence would have amounted to murder", • “Notwithstanding” means “despite”, not “provided” • Gore (2007)

28. Corporate Manslaughter • Corporate Manslaughter and Corporate Homicide Act 2007 • Too late! • Too little – symbolic but will it work? • Senior managers ill defined • Duty concept unnecessary; exclusions too wide • Too complex • Duty, civil law, exclusions

29. Offences Against the Person • Meachen • D who causes abh/gbh will not be guilty if: • He has genuine belief that V consented to assault • D intends no harm greater than assault • D not reckless as to greater harm than assault • What level of harm was caused • what level of harm was intended/foreseen • does V consent in fact to the level intended foreseen? • Is consent to that level of harm in that activity valid?

30. Kidnap • Hendy Freegard • D who takes and carries V away by fraud not guilty of kidnap unless • D also deprived V of her liberty • [D’s fraud sufficient to vitiate consent?]

31. Art 10 Sexual Offences (NI) Order 2008 • Consent Bree • Where V is intoxicated and sexual activity occurs the question is whether V retained capacity to choose: H • “It was for the jury, not the judge, to decide, on the basis of the evidence called, whether, … the complainant had the capacity to consent and/or in fact consented to intercourse or not.

32. Frauds and consent to sex • Jheeta • Deception as to the reason for the act is not sufficient to trigger s 76 • Nature? • Purpose? • What does purpose mean in cases of sexual conduct? • Should parliament have distinguished penile penetration cases from others?

33. Deception as to purpose • Piper (2007) • V thought she was modelling; D thought otherwise • Devonald (2008) • D causes 16 year old to engage in sex on a webcam. V thinks D is a 20 year old busty blonde… D is a 31 year old vengeful father.

34. Obscenity • Hamilton • Outraging public decency can be committed even if no one saw what D was doing. • Provided there were indeed others present, and D’s conduct was capable of being seen by them.

35. Indecent child images • Protection of Children (NI) Order 1978 • Harrison • H possessed images if • he knew that any images he accessed would be copied — ‘made’ in terms of legislative language — and stored automatically and • knew the likelihood that in accessing certain sites, illegal material would in this way be accessed (ie pop up).

36. Dishonesty offences • Theft and dishonesty – rare example of a case in which no reasonable tribunal could conclude not dishonest: Gohill v DPP • Robbery does not require proof that V was actually put in fear. Otherwise the commission of the offence would turn on the courage of V. • But is it necessary for V to apprehend that force will be used? • Where the allegation is that D put any person in fear of being then and there subjected to force, in that form of the offence, it would seem to be a necessary element.

37. Money Laundering or handling • Rose • D acquired a child’s motor bike • D claims not criminal property since he does not have an “interest” in it if stolen • CA- thief acquires a limited interest in the property • Can be liable under s 329 for possession of criminal property.

38. Fraud Act – 2 glitches • Section 11 does not work in cases where D makes unauthorised use of a credit card to obtain services. • There must be a failure to pay • No transitional jurisdictional provisions seem to have been included. • If D commits a deception offence abroad before 1st Jan 2007 1993 Act seems not now to apply

39. Fraud Act – 2 glitches • Section 11 does not work in cases where D makes unauthorised use of a credit card to obtain services. • There must be a failure to pay • No transitional jurisdictional provisions seem to have been included. • If D commits a deception offence abroad before 1st Jan 2007 1993 Act seems not now to apply

40. Public Order • Police cell is not a home: R v Francis • Racially aggravated offences are: • (i) desirable to reflect the qualitatively distinct harm • (ii) capable of commission by use of the words “bloody foreigners” R v Rogers • Racial and Religious Hatred Act 2006 creates offences akin to inciting racial hatred

41. Blasphemy • The offence will be established only if what is done or said is such as to induce a reasonable reaction involving civil strife, damage to the fabric of society or their equivalent.

42. Weapons • Deyemi – Firearms Act • Rejected defence argument that D should be allowed to prove that he was not aware of the nature of the article he possessed. • Weaver • Prohibited weapon is necessarily a firearm though not necessarily a lethal barrelled weapon

43. Weapons • Salih • Possession for self defence • if D was acting in self-defence at the moment when he was alleged to be in possession of a firearm, then not guilty. • But if the possession with intent to endanger life was alleged to have occurred at some time before that moment and at a time when he or she was not in immediate fear of attack, then, the defence was not available.

44. Terrorism • New Protocol • Section 1 of the Terrorism Act2000 offences involving threat of action designed to influence a “government” of a country other than the United Kingdom (s.1(4)) • Includes dictatorships such as Libya

45. Road Safety Act 2006 • A person is to be regarded as driving without due care and attention if (and only if) the way he drives falls below what would be expected of a competent and careful driver. • regard shall be had not only to the circumstances of which he could be expected to be aware but also to any circumstances shown to have been within the knowledge of the accused.

46. Road Safety Act 2006 • S 20 - causing death by careless or inconsiderate driving (5 yr max). • 21(1) creates offences of causing death by driving when • unlicensed, • disqualified • uninsured (2 yrs max)

47. Computer Misuse • Denial of service attacks may be prosecuted under CMA 1990: DPP v Lennon • Computer Misuse Act extended by Police and Justice Act 2006 • Unauthorised act with intent/recklessness as to impairing operation of computer • Making or supplying articles for use in computer misuse offence