Criminal law case list | Law Study Club

Criminal law cases and statutes

General elements of liability

Actus reus and causation
Omissions as actus reus
Mens rea
Strict liability

Non-fatal offences

Assault
Battery
s 47 ABH
s 20 GBH
s 18 GBH

Fatal offences

Murder
Loss of control manslaughter
Diminished responsibility manslaughter
Unlawful act manslaughter
Gross negligence manslaughter

Property offences

Theft
Robbery
Burglary

Preliminary offences

Attempt

Defences

Insanity
Intoxication
Automatism
Self-defence
Duress
Duress of circumstances
Consent

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Actus reus and causation

Hill v Baxter (1958)

The defendant drove a long distance while part-conscious. He was charged with dangerous driving.

Held: D was liable for his crime because he was conscious enough to be controlling the vehicle so the actus reus was voluntary. The judge gave examples of when a driver would not be liable for driving offences, such as if a swarm of bees got into the vehicle and attacked the driver.

R v Mitchell (1983)

D punched a 72-year-old man during an argument in the queue at a Post Office. The elderly man staggered backwards and fell into an 89-year-old woman. The woman was knocked over and later died of her injuries.

Held: D was convicted of unlawful act manslaughter. The 72-year-old man was not convicted of any offence, as his act was involuntary.

R v Larsonneur (1933)

D was a French national who was ordered to leave the UK. She travelled to the Republic of Ireland, but Irish police detained her immediately on arrival in Ireland and forced her to return to the UK. When she arrived back in the UK, she was charged under the Aliens Order 1920, which dealt with illegal immigration.

Held: D was convicted, despite her presence in the UK being involuntary because the crime was one of absolute liability.

R v Pagett (1983)

D used his girlfriend as a human shield during a confrontation with armed police. Whilst holding his girlfriend in front of him, D shot at police officers. They returned fire and police bullets killed D’s girlfriend. D was prosecuted for manslaughter.

Held: D’s actions were the factual cause of his girlfriend’s death, because but for D holding her and shooting at the police, she would not have died.

The police shooting back at Pagett was a foreseeable reaction by a third party. Therefore, the act of the third party (the police) did not break the chain of causation.

R v White (1910)

D put poison into his mother’s evening drink, intending to kill her. She drank a few sips and fell asleep. She died in her sleep, but medical evidence said that she died from a heart attack and not from poisoning. D was prosecuted on a charge of murder.

Held: D was not liable for murder. The heart attack meant that, but for D putting poison in the drink, his mother would have died anyway. His actions were not the factual cause of her death.

R v Hughes (2013)

D was not insured and did not have a full driving licence. He was driving his camper van faultlessly along a road (on his side of the road and was within the speed limit). As he rounded a bend, a car came onto his side of the road and hit the camper van. The driver of the other car was under the influence of heroin and died as a result of the accident. D was prosecuted for causing death by driving without a licence. At trial, he was convicted.

Held: The Supreme Court overturned his conviction. While D driving without a licence satisfied the ‘but for’ test in relation to V’s death, it was not enough to be a ‘legally effective cause’.

“Where there are multiple legally effective causes, it suffices if the act or omission under consideration is a significant (or substantial) cause, in the sense that it is not de minimis or minimal. It need not be the only or the principal cause. It must, however, be a cause which is more than de minimis, more than minimal.”

R v Kimsey (1996)

D lost control of her car while racing her friend at high speed. She lost control of her car and the other driver was killed. At trial, the judge directed the jury that D’s conduct did not have to be ‘the principle, or a substantial cause of the death, as long as you are sure that it was a cause and that there must be something more than a slight or trifling link’. D was convicted of death by dangerous driving.

Held: The Court of Appeal upheld the conviction and the judge’s direction to the jury.

R v Blaue (1975)

D stabbed the victim. V was told she needed a blood transfusion to save her life. She refused on religious grounds, based on the teaching of Jehovah’s Witnesses against blood transfusions. V died as a result. D was charged with manslaughter.

Held: While V’s faith made the harm fatal, the defendant must ‘take his victim as he finds them’. The ‘thin-skull’ rule applied and D was convicted.

R v Roberts (1972)

D was a man driving home a young woman from a party. The victim rejected a sexual advance from Roberts, who continued to touch her. V leapt from the car while it was travelling at between 20 and 40mph. She suffered injuries and D was charged under s 47 (ABH).

Held: The Court of Appeal described the test as ‘was V’s reaction the natural result of what D said and did, in the sense that it was something that could reasonably have been foreseen as the consequence of what D was saying or doing?’ D was liable for V’s injuries. Her leaping from the car did not break the chain of causation.

R v Williams and Davis (1992)

V was a hitch-hiker who believed Williams and Davis were trying to steal his wallet. As a result, V jumped from the car while it was travelling at 30mph. He died from head injuries.

Held: The Court of Appeal asked whether V’s conduct was ‘within the ambit of reasonableness and not so daft as to make his own voluntary act one which amounted to a novus actus interveniens (a new intervening act) and consequently broke the chain of causation. Williams and Davis were not liable for the man’s death’.

R v Smith (1959)

D stabbed V in the lung. The stretcher carrying V was dropped, and then V was given CPR, which made the injury much worse and decreased V’s chance of survival by around 75%. V died. D was charged with murder.

Held: The poor medical treatment, even though it was extremely poor, did not break the chain of causation. D’s act (stabbing V) was still an operating and substantial cause of V’s death.

R v Cheshire (1991)

D shot V twice. During surgery, doctors gave V a tracheotomy. Two months later, V died from complications due to the tracheotomy. At the time of death, V’s gunshot wounds had almost completely healed and were no longer life-threatening. D was charged with murder.

Held: D was liable for V’s murder. It didn’t matter that the doctors’ treatment ‘fell short of the standard expected of a competent medical practitioner’. D shooting V was still a significant contributing factor to V’s death.

R v Jordan (1956)

D stabbed V. While in hospital, V was given an antibiotic to which he suffered an allergic reaction. One doctor stopped the use of the antibiotic, but another doctor failed to read the notes and administered a large dose of the same drug. V died from an allergic reaction.

Held: D was not liable for V’s death. The doctor’s actions were held to be an intervening act causing the death. The administration of the antibiotic was sufficiently independent and sufficiently serious to break the chain of causation.

R v Malcherek (1981)

D stabbed V (his wife). V was placed on life support. After tests revealed she was brain dead, doctors switched off the life support.

Held: The trial judge refused to allow issues of causation to be put to the jury by the defence, and this was upheld by the Court of Appeal. D was convicted. Doctors switching off life support did not break the chain of causation.

Teaching and revision resources on actus reus

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Omissions as actus reus

s 170 Road Traffic Act 1988

(1) This section applies in a case where, owing to the presence of a vehicle on a road, an accident occurs.

(2) The driver of the vehicle must stop and, if required to do so by any person having reasonable grounds for so requiring, give his name and address and also the name and address of the owner and the identification marks of the vehicle.”

R v Pittwood (1902)

D was a railway crossing keeper who failed to shut the gates, leading to someone being hit and killed by a train.

Held: D was convicted of manslaughter. His failure (omission) to shut the gates was enough for criminal liability because of his contractual duty to do so.

R v Gibbins and Proctor (1918)

D1 was the father of a 7-year-old girl and D2 was his partner. They kept the girl away from her half-siblings and deliberately starved her to death.

Held: Both were convicted of murder. Their failure (omission) to feed the child was enough to create criminal liability, because they had a duty as parents to feed their child.

R v Stone and Dobinson (1977)

Stone and Dobinson allowed Stone’s elderly sister to live with them. She became more frail, and eventually depended on them to feed her. They failed to do so and she died from malnutrition.

Held: Both were convicted of manslaughter. While Stone had a duty as a brother, Dobinson had voluntarily taken on a duty to care for the victim.

R v Evans (2007)

Evans provided her 16-year-old half-sister with heroin, to which she was addicted. V self-injected the heroin. Evans knew that V had overdosed but did not seek medical help. V died.

Held: Evans was convicted of gross negligence manslaughter. She had voluntarily taken on a duty to her half-sister when she provided the heroin.

R v Dytham (1979)

Dytham was a police officer on duty who witnessed a fight in which one man was kicked to death. He did not intervene or summon help, instead leaving the scene to go off duty.

Held: Dytham was convicted of misconduct in public office. He had a duty to intervene or summon help that came from his official position as a police officer on duty.

R v Miller (1983)

Miller fell asleep while smoking a cigarette in a flat in which he was squatting. He woke up to find his mattress on fire. He did not attempt to put out the fire and did not call for help, instead going into another room and going back to sleep.

Held: Miller was convicted of arson. The arson did not occur when the fire started, but when Miller noticed the fire and failed to call for help.

DPP v Santa-Bermudez (2003)

D told a police officer before he was searched that he did not have any needles in his pockets. The officer was then injured by a needle in D’s pocket.

Held: D was convicted of s 47 ABH for his failure to tell the police officer about the needle.

Airedale NHS Trust v Bland (1993)

Bland had been in a persistent vegetative state for 3 years after being crushed in the Hillsborough stadium disaster. Doctors asked the court to rule on whether withdrawing treatment could make them criminally liable for Bland’s death.

Held: Doctors removing food or life support in the best interests of a patient is not an omission that creates criminal liability.

Teaching and revision resources on omissions as actus reus

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Mens rea

R v Mohan (1975)

A police officer stood in the road and signalled for D to stop his car. D slowed down, but (when about ten yards from the officer) he accelerated and drove at the officer. The officer jumped out of the way to avoid being injured. D was charged with attempted GBH, which requires intent to be proven.

Held: Intention is defined as ‘a decision to bring about, in so far as it lies within the accused’s power, [the prohibited consequence], no matter whether the accused desired that consequence of his act or not.’

s 8 Criminal Justice Act 1967

A court or jury, in determining whether a person has committed an offence,—

(a) shall not be bound in law to infer that he intended or foresaw a result of his actions by reason only of its being a natural and probable consequence of those actions; but

(b) shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances.

R v Woollin (1998)

D threw his 3-month-old baby into his pram from a distance of several feet. The pram was against a wall. The baby hit the wall, suffered head injuries and died. D was found guilty at trial and appealed to the House of Lords.

Held: ‘The jury should be directed that they are not entitled to find the necessary intention unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant’s actions and that the defendant appreciated that such was the case.’

R v Matthews and Alleyne (2003)

Ds threw V from a bridge into a deep river. V had told Ds that he could not swim. Ds watched V attempt to get to the bank, but left before they saw whether he had made it. V drowned.

Held: The Court of Appeal held that the Woollin decision does not mean that foresight of consequences is the same as intention. Instead, they said foresight of consequences is a rule of evidence – it is evidence from which intention may be found.

Met Police Commissioner v Caldwell (1982)

D worked in a hotel and held a grudge against his employer. D got very drunk and started a fire in the hotel at a time when ten people were staying in it. The fire was quickly extinguished. D was charged under the Criminal Damage Act 1971 with aggravated criminal damage with intention or recklessness as to the endangerment of life. D claimed that he was so drunk he did not realise there was a risk of endangering life.

Held: D was convicted and his conviction was upheld by the Court of Appeal. The courts accepted that D did not realise there was a risk, but said there was an obvious risk of death that meant his conduct could still be considered reckless. This introduced a form of objective recklessness (or Caldwell recklessness) into law.

Elliott v C (1983)

D was a 14-year-old girl with learning difficulties. She spilled some flammable materials on the floor of a shed and dropped a lighted match onto the floor. The shed caught fire. Magistrates took the decision in Caldwell to mean that an ‘obvious risk’ means obvious to the defendant at the time. D was acquitted.

Held: On appeal, the decision was overturned and D was convicted of reckless arson. The Court of Appeal held that recklessness includes circumstances when the risk is obvious to a ‘reasonably prudent man’. The fact that D did not know the risk was held to be irrelevant.

R v G (2003)

D1 and D2 were two boys, aged 11 and 12. They set fire to piles of newspapers behind a shop. They threw the newspapers under a bin, assuming the fire would go out on its own. In fact, the fire spread to the shop and neighbouring buildings, causing £1 million worth of damage. The pair were convicted of reckless criminal damage and the conviction was upheld by the Court of Appeal.

Held: the House of Lords overturned the conviction and overturned the ruling in Caldwell. They said that the Caldwell ruling had pushed the definition of recklessness ‘beyond the range of feasible meanings’. This means that objective recklessness no longer exists – recklessness is always tested subjectively.

R v Cunningham (1957)

D was trying to steal money from a gas meter attached to an empty house. D tore the gas meter from the wall, which then caused poisonous gas to get into a nearby house, harming a woman in the property. D was charged under s 23 Offences Against the Person Act 1861 with maliciously administering a noxious thing.

Held: D was found not guilty because he did not know there was a risk of gas escaping from the meter. There was no subjective recklessness, so there was no liability.

R v Savage (1992)

D was trying to throw beer over her husband’s ex-girlfriend. The glass slipped from her hand, smashed and cut V’s wrist. D was charged under s 20 OAPA (maliciously wounding) At trial, the judge directed the jury that ‘maliciously wounding’ meant deliberately wounding and the jury acquitted D.

Held: The Court of Appeal held that ‘maliciously’ means recklessly wherever it appears in statute and that recklessness is tested subjectively. The Court of Appeal substituted the conviction for one of ABH under s 47 OAPA.

R v Latimer (1886)

D was fighting with another man in a pub. He tried to hit the other man with his belt, but the belt only grazed his intended victim and instead hit a nearby woman with some force. The woman was seriously injured. D was charged under s 20 OAPA 1861.

Held: the defendant’s intention or recklessness as to causing harm to his intended victim was enough to convict him for the actual harm caused to someone else. The malice is transferred between the intended victim and the actual victim.

R v Pembliton (1874)

D was involved in a fight outside of a pub. He picked up a stone and threw it at those he was fighting with, but the stone missed them all and instead broke a nearby window.

Held: the defendant’s intention or recklessness as to harming the other people could not be transferred to the window because it is an entirely different type of offence (i.e. a property offence, rather than an offence against the person).

R v Gnango (2011)

D and another man engaged in a shoot-out, shooting at each other. The other man hit an innocent bystander and killed her. The Court of Appeal quashed D’s conviction for murder.

Held: the Supreme Court reinstated the conviction. They held that D had been attempting to murder the other man and had been aiding and abetting the other man in the attempted murder of himself. They transferred this malice to the actual victim and convicted D of murder.

Attorney-General’s Reference (No. 3 of 1994) (1997)

D stabbed his pregnant girlfriend, who then gave birth to a child. The child was wounded in the incident and died 121 days after birth. D was charged with murder but acquitted on the basis that his intent could not be transferred to an unborn child.

Held: the House of Lords held that the mens rea for murder could not be transferred to the unborn child. But they held that D had committed unlawful act manslaughter against the child.

Thabo Meli v R (1954)

Four defendants planned to kill their victim. They beat him over the head and, believing him to be dead, pushed him over a cliff edge. V then died of exposure and not from the head injuries. Ds were convicted and then appealed on the basis that actus reus and mens rea didn’t coincide.

Held: The appeal was rejected. The House of Lords said it was ‘impossible to divide up what was really one transaction’. The defendant’s actions combined into a series of acts, meaning actus reus and mens rea did coincide.

R v Church (1966)

D and V were in a van when they began to fight. D knocked V out and spent 30 minutes trying and failing to revive her. Believing V was dead, D threw her into the river. V’s body was found and the cause of death was drowning.

Held: D was convicted of manslaughter and the conviction was upheld on appeal. The mens rea (recklessness) was present throughout a series of acts.

Fagan v Met Police Commissioner (1986)

D was told to park his car by a police officer. He accidentally stopped the car with a wheel on top of the officer’s foot. The officer told D what had happened and told him to move the car. D refused and swore at the officer instead. D was convicted of assault and appealed on the basis that the contemporaneity rule was not met.

Held: D’s conviction was upheld. While an omission cannot create liability for an assault, the Court of Appeal held that driving onto the foot and keeping it there was a continuing act. The assault was not committed when D stopped the car, but when he continued to keep it on the officer’s foot. At this point, both actus reus and mens rea were present at the same time.

Teaching and revision resources on mens rea

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Strict liability

Pharmaceutical Society of GB v Storkwain Ltd (1986)

D was a pharmacist who supplied prescription drugs based on prescriptions that later turned out to be very good forgeries. There was no evidence that D had known the prescriptions were forged. D was charged under s 58(2) Medicines act 1968, which makes it an offence to supply drugs without a doctor’s prescription.

Held: D was convicted and his conviction was upheld by the House of Lords. D had supplied drugs without a doctor’s prescription, even though he didn’t know the prescriptions were fake.

R v Prince (1875)

s 55 Offences Against the Person Act 1861 made it an offence to take an unmarried girl under the age of 16 ‘out of the possession and against the will of her father or mother’. D ‘took’ a girl he reasonably believed to be 14 ‘out of the possession’ of her father. He knew the girl was in her father’s possession, but believed her to be 18 years old. D was charged under s 55 OAPA.

Held: D was convicted. Mens rea was required for taking a girl ‘out of the possession’ of her parents (and D had this mens rea) but no mens rea was required for the age element of the offence.

R v Larsonneur (1933)

Held: D was convicted, despite her presence in the UK being involuntary because the crime was one of absolute liability.

Winzar v Chief Constable of Kent (1983)

D was taken to hospital, where doctors decided he was drunk and not ill. He was then found asleep in a chair at the hospital. Staff called the police, who then took D to the side of the road outside the hospital. There, police put him in their car and drove him to the police station, charging him with being ‘found drunk in any highway or other public place’ under s 12 Licensing Act 1872.

Held: D was convicted and his conviction was upheld on appeal.

Callow v Tillstone (1900)

Callow was a butcher. He asked a vet to examine an animal carcass to determine if it was fit for human consumption. The vet told him that it was, so Callow butchered the carcass and sold it to customers. The meat was found to be unfit to eat and Callow was charged with ‘exposing unsound meat for sale’.

Held: Callow was convicted. Despite having no fault and having taken due diligence to avoid selling unsound meat, the offence was one of strict liability.

Harrow LBC v Shah and Shah (1999)

D1 and D2 owned a newsagent. They had told their staff, with regular reminders, not to sell lottery tickets to people under 16. Ds told staff that, if there was any doubt, staff should refer the matter to them. One day, when D1 was in the back room and D2 was off the premises, one of their staff members sold a lottery ticket to a 13-year-old boy. Ds were charged under s 13(1)(c) National Lottery Act 1993.

Held: Shah and Shah were acquitted by magistrates, but the prosecution appealed and the pair were convicted.

Cundy v Le Cocq (1884)

D was charged with selling alcohol to a drunk person. The court accepted that the man had not behaved in any way that indicated he was drunk and that there was no reason the bar staff would have thought him to be drunk.

Held: D was convicted and the conviction was upheld on appeal. The fact that D had made an honest mistake was no defence, as the offence was one of strict liability.

Sweet v Parsley (1969)

D rented a house out to students. Cannabis was found in the house, though D didn’t know it was there. D was charged with ‘being concerned in the management of premises used for the purpose of smoking cannabis resin’.

Held: The courts always presume that an offence does need a mens rea (they presume the offence isn’t strict liability, unless there are good reasons to make it strict liability. “There has for centuries been a presumption that Parliament did not intend to make criminals of persons who were in no way blameworthy in what they did. That means that whenever a section is silent as to mens rea there is a presumption that… we must read in words appropriate to require mens rea.”

Gammon (Hong Kong) Ltd v Attorney-General of Hong Kong (1984)

Project managers for some building works in Hong Kong were charged with deviating from approved building plans in a way likely to cause risk of injury to any person or damage to any property, contrary to Hong Kong building regulations. A magistrate acquitted the defendants on the grounds that they didn’t know of the deviations.

Held: following Sweet v Parsley, the Privy Council agreed there is a presumption of mens rea, but laid out four factors that might allow this presumption to be displaced when interpreting statutes:

It is the clear meaning of the statute
The offence is not ‘truly criminal’ in character
The statute concerns an issue of social concern
Making the offence strict liability will help enforcement of the law

National Lottery Act 1993

13 Contravention of regulations an offence.

If any requirement or restriction imposed by regulations made under section 12 is contravened in relation to the promotion of a lottery that forms part of the National Lottery—

(a) the promoter of the lottery shall be guilty of an offence, except if the contravention occurred without the consent or connivance of the promoter and the promoter exercised all due diligence to prevent such a contravention,

Point of law: The offence in s 13(1)(c) is strict liability, because the earlier subsections mention mens rea – e.g. ‘consent’, ‘connivance’ – but (c) doesn’t. This is the offence that Shah and Shah were prosecuted for in Harrow v Shah and Shah.

B v DPP (2000)

D was a 15-year-old boy who asked a 13-year-old girl to have sex with him. D believed the girl was 14, but was charged with inciting a child under 14 to commit an act of gross indecency.

Held: D’s conviction was quashed by the House of Lords. Lord Nicholls said, “The more serious the offence, the greater was the weight to be attached to the presumption of mens rea, because the more severe was the punishment and the graver the stigma that accompanied a conviction.”

Teaching and revision resources on strict liability

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Assault

R v Constanza (1997)

D made numerous silent phone calls to an ex-colleague, wrote her hundreds of letters and repeatedly visited her house without invitation. He then sent two letters including threatening language. D never touched V. The victim was diagnosed with depression and anxiety as a result.

Held: the string of silent phone calls and threatening letters were enough for the actus reus of assault. Words alone are enough for an assault.

R v Ireland (1997)

D made silent phone calls to three separate women. He never spoke on the phone but breathed heavily down the line. All three suffered psychiatric harm as a result. D was convicted but appealed on the basis that an omission cannot create liability for assault and he had not spoken during the calls.

Held: D’s conviction was upheld, because D had acted in making the calls and D “intends his silence to cause fear and intimidation” (Lord Steyn).

R v Lamb (1967)

D was joking with his friend by pointing a gun at him that he believed was not loaded in a way that a bullet could fire. His friend played along, also believing the gun was not dangerous. D accidentally fired the gun and a bullet unexpectedly fired and killed V. D was convicted of unlawful act manslaughter (with assault as the unlawful act) and appealed.

Held: D’s conviction was overturned as no assault had taken place. V did not apprehend the infliction of immediate, unlawful force because he did not believe the gun to be loaded.

Smith v Chief Superintendent of Woking (1983)

D entered an enclosed garden at V’s house at 11pm. He looked through V’s bedroom window. When V saw D, she jumped and screamed through fear. She called the police.

Held: D was liable for assault, even though he couldn’t have inflicted instantaneous force. ‘Immediate’ force in the actus reus of assault simply means V fears violence “at some time not excluding the immediate future” [R v Lamb]

Tuberville v Savage (1669)

Savage had insulted Tuberville. Tuberville grabbed the handle of his sword and told Savage, “If it were not assize-time, I would not take such language from you.” Assize-time refers to the period visit of law courts to the area. Tuberville argued that he had not assaulted Savage because he explicitly told him that he wouldn’t attack due to the assizes.

Held: there was no assault. Tuberville’s conduct, in conjunction with his words, was not enough to make Savage fear immediate force.

R v Light (1857)

D raised a sword above his wife’s head and told her, “Were it not for the bloody policeman outside, I would split your head open.” D claimed that the precedent from Tuberville v Savage meant there was not assault.

Held: there was an assault. The court distinguished between the facts of the two cases, saying that raising the sword above his wife’s head was so threatening that his words did not stop it being an assault.

Teaching and revision resources on assault

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Battery

Collins v Wilcock (1984)

A police officer suspected that a woman, previously unknown to the police, was soliciting as a prostitute. When the officer asked her name, she refused and walked away. When she did the same again, the officer held her by the arm in order to prevent her from walking away. The woman swore at the officer and scratched his arm. She was charged with assaulting a police officer in the line of duty. She appealed on the basis that the officer was not acting in the line of his duty; he was acting unlawfully by taking her arm.

Held: The appeal was upheld. Even though the officer hadn’t been particularly forceful, taking hold of her arm was enough to be ‘force’ for the actus reus of battery. The court also ruled that battery depends on contact that goes beyond “generally acceptable standards of conduct”.

Marland v DPP (2023)

D thought his partner was drunk and needed to be taken home. He grabbed her by her shoulders and took her to the car, despite her making it clear that she did not want to go. D argued that, thinking she was drunk, he thought he was keeping his partner safe by taking her home. However, in taking her to the car against her will, his partner fell to the ground.

Held: D was liable for battery. “It would be contrary to public policy to hold that it is acceptable for a man, knowing that a woman did not consent to being touched, to say that he knew she was not consenting but he did what he did because he thought it was in her best interests.”

R v Thomas (1985)

Thomas was a school caretaker. For one of the counts, Thomas rubbed the bottom of the skirt of a student, without touching the student herself. He was charged with indecent assault, which requires there to be a technical battery that is indecent in nature.

Held: touching the victim’s skirt was enough to constitute a battery. The Court of Appeal held that, “There could be no dispute that if you touch a person’s clothes while he is wearing them that is equivalent to touching him.”

Fagan v Metropolitan Police Commissioner (1968)

The driver refused to move his car off the foot of the police officer after initially parking it on the officer’s foot accidentally.

Held: D committed the battery through a continuous act.

DPP v K (1990)

D was a 15-year-old boy. He took sulphuric acid from his science lesson without permission. He was planning to experiment with it, but heard footsteps and thought he was going to be caught. He panicked and hid the acid in the hand dryer. Before he could remove it, the dryer was used by another student, who was then sprayed with the acid. D was charged with s 47 ABH, on the basis of a battery that caused actual bodily harm. Magistrates acquitted D and the prosecution appealed.

Held: The appeal was successful. A battery can be committed even where the force between D and V is indirect.

DPP v Santa-Bermudez (2003)

D was being searched by a police officer, who asked him whether there were any sharp objects in his pockets. He said ‘no’. The officer was then cut during the search by a needle in the man’s pocket.

Held: D was convicted. An omission can create liability for battery.

DPP v Majewski (1976)

D drank a lot of alcohol and took drugs in a pub. When he was challenged by the landlord, he attacked the landlord. D then went on to attack the police officers who were called to the scene. D argued that he had been too intoxicated to know what he was doing. He was convicted of battery and appealed.

Held: The House of Lords upheld D’s conviction. They held that taking such large quantities of drugs and alcohol was reckless in itself, meaning D had met the mens rea requirements of assault and battery.

Teaching and revision resources on battery

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s 47 ABH

s 47 Offences Against the Person Act 1861

Whosoever shall be convicted upon an indictment of any assault occasioning actual bodily harm shall be liable to be kept in penal servitude.

R v Miller (1954)

Miller and his wife were separated but not divorced. Miller forced his wife to have sex with him and was charged with rape and a 47 ABH. The court held that he could not be convicted of raping his wife, but the question of what constituted ABH remained.

Held: D was convicted of ABH. It was held that actual bodily harm means “any hurt or injury calculated to interfere with the health or comfort of the victim”.

R v Chan Fook (1994)

D accused V of stealing an engagement ring. He hit the victim several times and locked him in a bedroom, causing both physical injuries and psychological suffering. However, the prosecution didn’t include the physical injuries in their case. The trial judge directed the jury that a “nervous and hysterical” condition could be enough for s 47 ABH and D was convicted.

Held: the Court of Appeal disagreed with the judge’s direction. It was held that “actual” has its usual meaning, which is “not so trivial as to be wholly insignificant”. The court also held that ABH “does not include mere emotions such as fear or distress nor panic nor does it include, as such, states of mind that are not themselves evidence of some identifiable clinical condition”.

T v DPP (2003)

D was part of a group of boys who approached V and began attacking him. When V fell over, D kicked him. Though V didn’t suffer any other injuries, he lost consciousness for a short time before being woken by a police officer. D was convicted at trial and appealed on the basis that he had not caused actual bodily harm.

Held: D’s conviction was upheld. The High Court held that losing consciousness for any amount of time amounts to ABH. The court also reaffirmed the decision in R v Chan Fook that “actual bodily harm” has its usual meaning and juries shouldn’t need any further direction on it.

DPP v Smith (Michael) (2006)

D was arguing with his girlfriend when he cut off her ponytail. He did not injure the victim in any other way. He was charged with s 47 ABH. Magistrates acquitted D, on the basis that cutting hair could not be considered ABH. The prosecution appealed.

Held: the appeal was successful. As hair is attached to the head, the court held that the ordinary meaning of “bodily” includes the hair and that cutting off a substantial amount of hair can constitute ABH. The court pointed out that only a substantial amount of hair would amount to ABH.

R v Roberts (1971)

D made sexual advances towards the passenger in his car and tried to remove her coat. V feared that D would continue to a more serious assault and jumped from the car as it travelled at 30 miles per hour. She was injured by her jump from the car. D argued that he had not intended or been subjectively reckless as to causing any injury.

Held: while D may not have realised the risk of injury, he intended to apply unlawful force when he touched her without consent. This satisfied the mens rea of s 47 ABH.

R v Savage (1991)

D threw beer over V in a pub, but the glass slipped from her hand and the glass cut V’s hand. D argued that she had not even been subjectively reckless as to causing harm. D was convicted of s 20 GBH, which was reduced to s 47 ABH by the Court of Appeal. D appealed to the House of Lords.

Held: the House of Lords rejected the appeal. They held that D had intended to subject V to unlawful force, and that this was enough for the mens rea of s 47.

Teaching and revision resources on s 47 ABH

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s 20 GBH

s 20 Offences Against the Person Act 1861

Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument, shall be guilty of a misdemeanour, and being convicted thereof shall be liable… to be kept in penal servitude

JJC v Eisenhower (1983)

D shot an air rifle towards a group of people. One of the pellets hit V in the face, causing blood vessels in her eye to rupture, with bruising around the eye but no cut on V’s face. The prosecution brought a charge under the “wounding” element of s 18 GBH (which has the same actus reus as s 20).

Held: D was found not guilty of wounding and the charge was reduced (on appeal) to one of actual bodily harm. The court held that “it is not enough that there has been a rupturing of a blood vessel or vessels internally for there to be a wound under the statute”.

CPS Charging Standards 2022

The severity of a wound is addressed in this approach: a wound requiring life-saving surgery would usually be charged contrary to section 20/18 whereas a more minor assault causing a minor cut would amount to a battery or ABH. Where a knife is used to wound, section 20/18 is almost always the appropriate charge.

Point of law: The wounding element of s 20 is rarely used on its own. If a minor wound is inflicted, it is usually charged as either battery or ABH. Wounds are only prosecuted under s 20 or s 18 if the wound is serious or is inflicted with a knife.

DPP v Smith (1961)

D was told by a police officer to stop his car, but D drove away instead. The officer jumped onto the car and was then thrown off it and killed when D swerved the car harshly. D was convicted of murder (which requires intent to cause GBH) and appealed on the basis that he did not intend to cause GBH.

Held: D’s conviction was reduced to manslaughter by the Court of Appeal. The court held that judges can direct juries that “grievous bodily harm” means “really serious harm”. This judgement has been upheld repeatedly since, including in R v Sidhu (2019).

R v Bollom (2004)

D was charged under s 20 for inflicting injuries on his partner’s 17-month-old child. The injuries consisted of bruising to the child’s abdomen, both arms and one leg. It was agreed at trial that the injuries were not, in themselves, really serious. But the judge directed the jury that they could take account of V’s age (or other vulnerabilities) in deciding whether the injuries were “really serious”. D was convicted under s 20 and appealed to have the conviction reduced to s 47 ABH.

Held: the Court of Appeal rejected the appeal, explaining that, “We have no doubt that in determining the gravity of these injuries, it was necessary to consider them in their real context.”

R v Dica (2004)

D had unprotected sex with two women. D knew that he had HIV, but didn’t tell this to either woman. Both women were infected with HIV. D was convicted under s 20 and appealed.

Held: the Court of Appeal quashed the conviction and ordered a retrial, holding that the women consented to unprotected sex and had therefore knowingly taken the risk of infection. However, the court also held that infection with a serious illness could amount to grievous bodily harm.

R v Lewis (1974)

D shouted multiple threats at his wife through the locked door of a second-floor flat. He then tried to break down the door. His wife was afraid and jumped from the window of the flat, breaking both of her legs in the fall. D was charged under s 20.

Held: D was convicted. Despite not touching the victim, he “inflicted” the GBH by a technical assault that led to her suffering really serious harm.

R v Burstow (1997)

D harassed a woman over a period of several months, with whom he had previously had a short relationship. The harassment included abusive phone calls, hate mail and stalking. As a result, V suffered from serious depression. D was convicted under s 20 and appealed the House of Lords.

Held: the House of Lords affirmed two important points…

Psychiatric harm – if really serious – can amount to GBH
There does not have to be a technical assault or battery for D to be liable for “inflicting” GBH.

R v Parmenter (1991)

D threw his 3-month-old child into the air, seriously injuring the child. D argued that he did not realise the risk of any injury because he had done this with other children before. At trial, he was convicted under s 20 and appealed to the House of Lords.

Held: the House of Lords quashed the conviction and substituted one of s 47 ABH. The Lords held that, for s 20, the defendant simply had to realise the risk of some harm, which Parmenter had not.

Teaching and revision resources on s 20 GBH

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s 18 GBH

s 18 Offences Against the Person Act 1861

Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause any grievous bodily harm to any person, with intent to do some grievous bodily harm to any person, or with intent to resist or prevent the lawful apprehension or detainer of any person, shall be guilty of felony, and being convicted thereof shall be liable to be kept in penal servitude for life.

R v Taylor (2009)

D was convicted under the wounding element of s 18 after scratching the victim with a fork and inflicting a minor stab wound to V’s back with a knife. The judge directed the jury, saying: If you are sure that an attack took place then you have to consider intention... You may think that if you found that the attack took place and that it was an attack with a knife, that finding an intention to cause a wound is not going to take you very long.’ D appealed on the basis that this was a misdirection.

Held: the Court of Appeal quashed the conviction. It was held that s 18 requires intent to cause GBH (or to prevent lawful arrest). Intent to wound is not enough.

R v Woollin (1998)

D threw his 3-month-old baby into his pram from a distance of a few feet. The pram was against a wall. The baby hit the wall, suffered head injuries and died. D was found guilty of murder at trial (which requires intent to kill or to cause GBH) and appealed to the House of Lords.

Held: intention can only be found if GBH was a ‘virtual certainty’ as a result of D’s actions and D knew that (or if D made a decision to bring about the GBH).

R v Morrison (1989)

A police officer entered a building to make an arrest, where she found the defendant hiding upstairs. The officer managed to grab the defendant’s clothes as he ran across the room and then jumped from the upstairs window. The officer suffered serious wounds and permanent scarring.

Held: D was convicted, because (despite not intending to cause GBH) he had intended to resist arrest and been reckless about causing GBH. (Though the conviction was overturned because the trial judge misdirected the jury that objective recklessness was sufficient.

Teaching and revision resources on s 18 GBH with intent

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Murder

R v Gibbins and Proctor (1918)

The father of a seven-year-old girl, along with his partner, kept the girl separate from her half-siblings and deliberately failed to feed her. The girl died from starvation.

Held: The failure to feed the girl was enough to constitute ‘killing’ for the actus reus of murder. An omission can create liability for murder.

R v Malcherek (1981)

D stabbed his wife. She was placed on life support. After tests revealed her to be brain dead, doctors switched off the life support machine. The defence argued that switching off life support broke the chain of causation and removed the defendant’s liability.

Held: Switching off life support did not break the chain of causation. When doctors remove life support, they are not ‘killing’.

Attorney-General’s Reference (No.3 of 1994) (1997)

The defendant stabbed his pregnant girlfriend, wounding the unborn child. The child was born prematurely and then died from the injuries 121 days after birth. The defendant was acquitted of both murder and manslaughter, but the case was referred to the House of Lords by the Attorney-General.

Held: The defendant was convicted of manslaughter. As part of the ruling, the House of Lords held that a ‘reasonable creature in being’ for the purposes of murder means a person who has taken a breath independently of their mother after birth. The defendant was not convicted of murder because he lacked the required mens rea.

R v Vickers (1957)

D broke into a sweet shop. He knew the owner of the shop was an elderly woman who was deaf. When he was interrupted by the owner, he punched her repeatedly and kicked her in the head. The woman died from her injuries. The defendant was convicted at trial and appealed on the basis that he lacked the required mens rea for murder.

Held: The Court of Appeal upheld the conviction. Despite not intending to kill the woman, the defendant had intended to cause grievous bodily harm. The court held that this has always been enough for the mens rea of murder.

R v Cunningham (1981)

D attacked the victim in a pub by repeatedly hitting him with a chair. The victim died from his injuries. D was convicted at trial and appealed on the basis that he did not have a high enough level of intention for the murder conviction.

Held: The House of Lords upheld his conviction on the basis that he intended to cause grievous bodily harm to the victim. However, in the ruling, Lord Davies wrote, ‘It is strange that a person can be convicted of murder if death results from, say, his intentional breaking of another’s arm, an action which, while undoubtedly involving the infliction of “really serious harm” and calling for severe punishment, would in most cases be unlikely to kill.’

DPP v Smith (1961)

D was told by a police officer to stop his car, but D drove away instead. The officer jumped onto the car and was then thrown off it and killed when D swerved the car harshly. D was convicted of murder and appealed on the basis that he did not intend to cause GBH.

Teaching and revision resources on murder

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Manslaughter by loss of control

s 54 Coroners and Justice Act 2009

(1) Where a person (“D”) kills or is a party to the killing of another (“V”), D is not to be convicted of murder if—

(a) D's acts and omissions in doing or being a party to the killing resulted from D's loss of self-control,

(b) the loss of self-control had a qualifying trigger, and

(c) a person of D's sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way to D.

(2) For the purposes of subsection (1)(a), it does not matter whether or not the loss of control was sudden.

(4) Subsection (1) does not apply if, in doing or being a party to the killing, D acted in a considered desire for revenge.

s 55 Coroners and Justice Act 2009

(3) This subsection applies if D's loss of self-control was attributable to D's fear of serious violence from V against D or another identified person.

(4) This subsection applies if D's loss of self-control was attributable to a thing or things done or said (or both) which

(a) constituted circumstances of an extremely grave character, and

(b) caused D to have a justifiable sense of being seriously wronged.

(6) In determining whether a loss of self-control had a qualifying trigger—

(a) D's fear of serious violence is to be disregarded to the extent that it was caused by a thing which D incited to be done or said for the purpose of providing an excuse to use violence;

(b) a sense of being seriously wronged by a thing done or said is not justifiable if D incited the thing to be done or said for the purpose of providing an excuse to use violence;

R v Ahluwalia (1992)

The defendant suffered years of abuse from her husband. One night, she went to bed but couldn’t sleep. She went downstairs, got some petrol and a candle and used them to set the room on fire in which her husband was sleeping. He died. She pleaded the defence of provocation.

Held: Because provocation required a ‘sudden’ loss of control, the defence failed. However, the case contributed to a Law Commission report in 2006 that recommended changing the defence. Under the new defence of loss of control, Ahluwalia would likely have been successful in her defence.

R v Jewell (2014)

The defendant was ill, sleep-deprived and depressed. He shot the victim at point-blank range with a shotgun. He was found in his car with weapons and a survival kit. He told the jury, “I did it because I lost control. I could not control my actions. I could not think straight. My head was fucked up. It was like an injection in the head, an explosion in my head.”

Held: The defence of loss of control failed and D was convicted of murder. On appeal, the Court of Appeal said there must be a total loss of self-control: “Has D lost his ability to maintain his actions in accordance with considered judgement or has he lost normal powers of reasoning?”

R v Turner (2023)

The defendant killed his wife by stabbing her 68 times. He was convicted of murder after the trial judge refused to allow loss of control to go to the jury, on the basis that 68 stabbings was sufficient evidence that he had not lost control. D appealed.

Held: The Court of Appeal quashed the conviction and ordered a retrial. It was held that a frenzied attack might provide some evidence that D had lost control, but doesn’t necessarily mean there either was or was not a loss of control.

R v Drake (2023)

Drake and another defendant stabbed a man to death. Drake gave evidence saying that he had lost control. The trial judge said this was not enough to allow the defence to go to the jury and refused to allow the jury to consider it. He was convicted and appealed.

Held: The Court of Appeal dismissed the appeal. D saying they lost control is not sufficient (on its own) to demonstrate loss of control, because saying “I lost control” might also be used to describe a general loss of temper.

R v Ogonowska (2023)

D was a woman who – after having previously been a victim of sexual violence – stabbed a man to death while he was sexually assaulting her. She was convicted on the basis that taking a knife to the scene removed the possibility of a defence of self-defence. On loss of control, D had explicitly said that she had not lost control of herself during the attack. D appealed her conviction.

Held: The appeal was dismissed. As part of the ruling, the Court of Appeal held that D saying they had not lost control is a “factor of significance in the overall assessment of the sufficiency of the evidence”, but is not necessarily a decisive factor.

R v Dawes (2013)

The defendant found his wife asleep on the sofa with the victim. The defendant attacked the man, who then retaliated. The defendant stabbed the victim, but argued loss of control on the grounds that he feared serious violence by the victim.

Held: The defence of loss of control failed and D was convicted of murder. The Court of Appeal held that, under s 55(3) CJA 2009, the defendant cannot rely on fear of serious violence if the defendant themselves incited the violence in the first place.

R v Doughty (1986)

The defendant was a new father whose baby son (aged 19 months) would not stop crying. D killed the child. The defendant tried to use the defence of provocation (under the old law) based on ‘things done or said’ by the baby that provoked the killing, but the trial judge refused to allow this to be put to the jury.

Held: The defence failed at first instance but the defendant’s conviction for murder was quashed because the trial judge should have allowed the ‘things done or said’ by the baby to be put to the jury as a defence.

R v Zebedee (2012)

The defendant lost control and killed his 94-year-old father, who was suffering from Alzheimer’s and repeatedly soiled himself. The defendant argued loss of control based on ‘things done or said’ by his father that caused him to lose control and kill him. The defence was put to the jury but failed. The defendant appealed.

Held: The defendant’s conviction for murder was upheld on appeal. The defence had been put to the jury, who had decided it did not meet the threshold of an ‘extremely grave character’ and a ‘justifiable sense of being seriously wronged’.

R v Clinton (2012)

D – who suffered from depression – found out that his wife was having several affairs. When she came home, she mocked him with details of what she had been doing. D’s wife also mocked him about having suicidal thoughts and told him he wasn’t brave enough to kill himself. D then killed her.

Held: The Court of Appeal held that, even though sexual infidelity is an ‘excluded matter’, the defence can still be used if sexual infidelity is just one part of a broader range of ‘things done or said’ that meet the threshold required.

R v Ibrams and Gregory (1981)

The defendants suffered a series of threats and harassment from the victim. They made a plan to attack the person who was threatening them and killed him two days later. Under the old law, they tried to use the defence of provocation.

Held: The defence failed because there had been no sudden loss of control (as required by the old law). But the defence would likely still fail under the new law, as their actions reflected a ‘considered desire for revenge’, which is an excluded matter under s 54(4) CJA 2009.

R v Rejmanski; R v Gassman (2017)

In a conjoined appeal from two defendants convicted of murder, the two defendants argued that they had been deprived of a loss of control defence by judges who refused to allow their mental disorders to be considered relevant to the standard of self-control for the purposes of loss of control manslaughter.

Held: The appeals failed. “In assessing the third component, the defendant is to be judged against the standard of a person with a normal degree, and not an abnormal degree, of tolerance and self-restraint. If a personality disorder reduced the defendant’s general capacity for tolerance or self-restraint, that would not be a relevant consideration.”

Teaching and revision resources on loss of control manslaughter

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Manslaughter by diminished responsibility

s 52 Coroners and Justice Act 2009

(1) A person who kills or is a party to the killing of another is not to be convicted of murder if D was suffering from an abnormality of mental functioning which—

(a) arose from a recognised medical condition,

(b) substantially impaired D's ability to do one or more of the things mentioned in subsection (1A), and

(1A) Those things are—

(a) to understand the nature of D's conduct;

(b) to form a rational judgment;

(1B) For the purposes of subsection (1)(c), an abnormality of mental functioning provides an explanation for D's conduct if it causes, or is a significant contributory factor in causing, D to carry out that conduct.

R v Byrne (1960)

The defendant suffered from sexual psychopathy. He strangled a woman to death in a youth hostel and then mutilated her body. At trial, he was convicted of murder. The defence appealed.

Held: the Court of Appeal upheld the appeal and substituted a conviction for voluntary manslaughter. The court held that “abnormality of mental functioning” means “a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal”. In their ruling the Court of Appeal held that “substantially impaired” is not a phrase that needs further explanation to a jury. It is for the jury to decide what is “substantial”.

R v Conroy (2017)

The defendant had autism and ADHD. He lived in a residential home, where he strangled a woman with the intention of having sex with her while unconscious. The victim died.

Held: the defendant was convicted of murder and the conviction was upheld by the Court of Appeal. However, the Court of Appeal did rule that autism and ADHD were recognised medical conditions that could form the basis of a diminished responsibility defence.

R v Lloyd (1967)

The defendant killed his wife during an episode of depression. There was evidence that his depression had, to some extent, impaired his ability to reason. At trial, the judge told the jury that “substantial” was a word for them to interpret themselves, but it does not mean total and does not mean trivial.

Held: on appeal, the Court of Appeal upheld the judge’s direction to the jury on the meaning of “substantially impaired”.

R v Golds (2016)

The defendant killed his partner, arguing that he was in a psychotic state at the time of the killing. The defendant was convicted of murder and appealed to the Supreme Court on the basis that the trial judge had not adequately explained “substantially impaired” to the jury.

Held: the Supreme Court held that the word “substantial” does not need any further explanation, unless there is a risk a jury won’t understand it. In that case, it should be explained as “important or weighty”. But the Supreme Court maintained that the directions given in Byrne and Lloyd were still good law.

R v Dietschmann (2003)

The defendant was suffering from an adjustment disorder following the death of his aunt. He believed the victim was behaving disrespectfully towards his aunt’s memory. After drinking a lot of alcohol, he killed the victim by repeatedly kicking and stamping on him. He was convicted of murder and appealed.

Held: the House of Lords held that the defence may be available if the D is intoxicated and has a pre-existing abnormality of mental functioning. The Lords gave a model direction to juries: “Has D satisfied you that, despite the drink, his mental abnormality substantially impaired his mental responsibility for his fatal acts, or has he failed to satisfy you of that?”

R v Dowds (2012)

The defendant killed his partner by inflicting sixty knife wounds on her. The defence argued that acute voluntary intoxication amounts to a “recognised medical condition” for the purposes of diminished responsibility. He was convicted of murder and appealed.

Held: the Court of Appeal upheld his conviction. They held that voluntary intoxication in itself is not a recognised medical condition and that, if Parliament had wished for it to be so, it would have been made explicit in the statute.

R v Wood (2008)

The defendant suffered from alcohol dependence syndrome (ADS). He drank heavily, then fell asleep at his friend’s flat. He claimed he was woken by the victim trying to perform a sex act on him. The defendant killed the victim with a meat cleaver.

Held: on appeal, the Court of Appeal held that ADS is a recognised medical condition. If ADS has caused long-term damage to the defendant’s brain, or if it meant that the intoxication wasn’t voluntary, the defence of diminished responsibility is available.

Teaching and revision resources on diminished responsibility manslaughter

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Unlawful act manslaughter

R v Franklin (1883)

The defendant threw a large box from Brighton Pier into the sea. It struck the victim, who was swimming beneath the pier. The defendant was charged with both unlawful act manslaughter and gross negligence manslaughter. The prosecution accepted that throwing the box into the sea was a civil wrong (a tort) and was not a crime.

Held: The defendant was not liable for unlawful act manslaughter. The court held unlawful act must be criminal to create liability for unlawful act manslaughter - a civil wrong (e.g. a tort or a breach of contract) is not enough.

R v Lamb (1967)

Held: D’s conviction was overturned as no assault had taken place. If there is no completed crime, there can be no liability for unlawful act manslaughter.

R v Grey (2024)

Grey was a woman who was partially blind and had cerebral palsy. She confronted an elderly cyclist who was cycling towards her on the pavement, waving and telling her to get off the pavement while cycling. At trial, no specific base offence was identified, but Grey was found guilty of unlawful act manslaughter.

Held: D’s conviction was overturned by the Court of Appeal. It was held that a base offence was essential and that the likely base offence (assault) couldn’t have been proven because of Grey’s lack of mens rea for the assault.

R v Lowe (1973)

The defendant wilfully neglected his baby son, who died as a result. The trial judge directed the jury that, as wilful neglect was a crime, it could be used as the basis of an unlawful act manslaughter. The defendant was convicted and appealed.

Held: On appeal, the conviction for unlawful act manslaughter was overturned. There must be a positive act (not an omission) to create liability for unlawful act manslaughter.

R v Church (1966)

Held: D was convicted of unlawful act manslaughter and the conviction was upheld on appeal. In the ruling, the court held that the test for the dangerous act is that “all sober and reasonable people would inevitably recognise… the risk of some harm, albeit not serious harm”.

R v Larkin (1943)

The defendant threatened a man with an open razor, at which point the man’s girlfriend intervened to protect him. As the girlfriend was drunk, she fell onto the open blade, which cut her throat and killed her.

Held: D was convicted of unlawful act manslaughter. Whether or not he thought the act of threatening the man was dangerous, it constituted a technical assault and the objective test of danger was met.

R v Mitchell (1983)

D punched a 72-year-old man during an argument in the queue at a Post Office. The elderly man staggered backwards and fell into an 89-year-old woman. The women was knocked over and later died of her injuries.

Held: D was convicted of unlawful act manslaughter. The fact that the dangerous unlawful act was directed against someone other than the eventual victim was irrelevant.

R v J M and S M (2012)

The two defendants started a fight with staff at a night club. During the fight, the victim (a bouncer) collapsed after suffering a ruptured renal artery. The rupture was not directly caused by an attack by either defendant, but it was considered to have likely been caused by the fight. The trial judge stopped the trial, arguing that no sober and reasonable person would recognise the risk of the ruptured artery. The prosecution appealed.

Held: The Court of Appeal upheld the appeal and convicted both defendants of unlawful act manslaughter. It does not matter whether a reasonable person would recognise the risk of the precise type of harm: sober and reasonable people would “readily have recognised that all the doormen… were at risk of some harm”.

R v Goodfellow (1986)

D set fire to the flat in which he lived to force the Council to rehouse his family. The fire spread, killing his wife, his son and another person. He was convicted of three counts of unlawful act manslaughter (with arson as the unlawful act) and appealed.

Held: The Court of Appeal upheld the conviction. It did not matter that the unlawful act was a crime against property (arson); it still met the objective test for danger.

R v Dawson (1985)

The defendant (along with two others) entered a petrol station armed with a weapon and with a mask covering his face, in an attempt to rob it. The staff member raised the alarm, but then died from a heart attack. D was convicted and appealed.

Held: On appeal, the conviction for unlawful act manslaughter was quashed. Although sober and reasonable people would recognise the risk of shock or fear, they would not recognise the risk of this leading to physical harm.

R v Watson (1989)

D broke entry into the house of an 87-year-old man. When the man came to confront the defendant, D physically abused him and then left. The man died from a heart attack 90 minutes later. D was convicted and appealed.

Held: The conviction was overturned. However, in the ruling it was held that burglary could be ‘dangerous’ for the purposes of unlawful act manslaughter.

R v Williams and Davis (1992)

V was a hitch-hiker who believed Williams and Davis were trying to steal his wallet. As a result, V jumped from the car while it was travelling at 30mph. He died from head injuries. The defendants were charged with unlawful act manslaughter.

Held: The defendants were acquitted. The victim’s act in jumping from the car broke the chain of causation, meaning that the alleged unlawful act (the theft) did not cause the death.

R v Kennedy (2007)

D prepared a heroin injection and handed it to the victim. The victim injected himself with the heroin, handed back the syringe and later died. Kennedy was convicted of unlawful act manslaughter (with s 23 OAPA – administering a noxious substance – as the unlawful act) and the Court of Appeal upheld the conviction. The case was referred to the House of Lords.

Held: The House of Lords overturned the conviction. They held that D had not ‘administered a noxious substance’ and that the victim self-injecting meant that D’s actions had not ‘caused the death’.

DPP v Newbury and Jones (1976)

The two defendants pushed a piece of paving stone from a railway bridge as a train approached. The stone hit the train guard and killed him. They were convicted of unlawful act manslaughter (with reckless criminal damage as the unlawful act) and appealed.

Held: The House of Lords upheld their conviction. That they didn’t recognise any risk of harm was irrelevant. The defendants had the mens rea for reckless criminal damage.

Teaching and revision resources on unlawful act manslaughter

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Gross negligence manslaughter

R v Adomako (1995)

D was a hospital anaesthetist. During an eye operation, D failed to notice that an oxygen supply tube had become detached. The patient died from a heart attack caused by the lack of oxygen. Expert witnesses at the trial described the failure to notice the tube as ‘abysmal’.

Held: D was convicted and the conviction was upheld on appeal in the House of Lords. Adomako became the key authority on GNM. In the judgement, Lord Mackay wrote, “the ordinary principles of the law of negligence apply to ascertain whether or not the defendant has been in breach of a duty of care towards the victim.”

R v Edwards (2001)

The defendants were parents who allowed their 7-year-old daughter and her friend to play near a railway line. They told the two children that they would warn of any oncoming trains. The two children were killed by a train the defendants failed to notice.

Held: under the ordinary rules of negligence, the defendants owed a duty of care to both children (through being parents and through setting in motion a chain of dangerous events) and breached that duty.

R v Finlay (2001)

The defendant was a scout leader who took a group of children mountaineering on Mount Snowdon. Safety procedures were not all in place and a 10-year-old child fell and died.

Held: as a scout leader (under the ordinary rules of negligence), the defendant owed a duty of care to the victim.

n.b. the defendant was not convicted because the breach was not considered serious enough to be grossly negligent.

R v Wacker (2002)

D was a lorry driver involved in a conspiracy to bring 60 people into the UK illegally. There was an air vent allowing air into the back of the lorry, but D closed it for several hours to avoid detection. 58 of the people in the lorry died from suffocation. D argued that, under the rules of civil law, the victims would not have been able to sue because they were complicit in an unlawful activity.

Held: D was convicted and the conviction was upheld on appeal. The Court of Appeal held that the joint unlawful activity was not relevant to a criminal conviction for GNM.

R v Evans (2009)

D provided heroin to her half-sister, who self-injected the heroin and then became ill. D failed to summon help and put the victim to bed, hoping she would recover, but the victim died.

Held: D was convicted of gross negligence manslaughter and the conviction was upheld on appeal. D owed a duty of care to V through having set in motion a chain of dangerous events.

R v Singh (1999)

D was the landlord of a property in which the victim lived as a tenant. D had left his son in charge of managing the property, and their failure to maintain a faulty gas fire led to the victim dying from carbon monoxide poisoning.

Held: D was convicted of gross negligence manslaughter and the conviction was upheld on appeal. In the ruling, it was confirmed that ‘the circumstances must be such that a reasonably prudent person would have foreseen a serious and obvious risk not merely of injury, even serious injury, but of death’.

R v Kuddus (2019)

D was the owner and chef in a fast-food restaurant and takeaway. The victim – a 15-year-old girl – ordered food and informed the restaurant of her nut allergy, but D himself was not informed. The victim died after eating the food that included peanuts.

Held: D was convicted but the Court of Appeal quashed the conviction. ‘The defendant’s breach of duty must give rise to (1) a risk of death, that was (2) obvious and (3) serious. These are objective facts, which are not dependent on the state of mind or knowledge of the defendant.’

R v Rose (2017)

D was an optician who performed a routine examination on V to determine whether V needed glasses. D carried out a statutory test for signs of serious illness, but accidentally reviewed the images from the previous year instead of the test she had just performed. V died five months later from hydrocephalus. D was convicted of GNM and appealed on the basis that the risk of death was not obvious because she had not seen the images that would have made it so.

Held: D’s conviction was quashed because the risk must be reasonably foreseeable from the position of the breach, not from the position D would have been in if they hadn’t breached their duty.

R v Rudling (2016)

D was a GP who received a call from a parent concerned about her 12-year-old son’s health. The boy was experiencing severe vomiting, incontinence and discolouration of his skin. The GP decided not to examine the boy, who then died from Addison’s disease (a very rare illness). It was accepted that most GPs would not be expected to recognise the condition from the description of its symptoms alone.

Held: the case against D was dismissed as no case to answer by the trial judge and the Court of Appeal agreed. ‘An obvious risk is a present risk which is clear and unambiguous, not one which might become apparent on further investigation.’

R v Bateman (1925)

D was a doctor who had cared for a woman during childbirth. During the birth, part of the victim’s womb came away and D did not refer her to hospital for five days. The victim died as a result. D was convicted and appealed.

Held: the House of Lords held that D had not been grossly negligent. ‘The facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving of punishment.’

R v Misra (2005)

The two defendants were senior doctors who failed to notice an infection in a patient after a knee operation. The infection spread and V died. The defendants were convicted and appealed on the basis that the ‘gross negligence’ element of the offence is not clearly defined and that this is in breach of Article 7 ECHR, which says a defendant shouldn’t be convicted of an offence that wasn’t criminal at the time it was committed.

Held: the Court of Appeal upheld the convictions and rejected the argument about Article 7 ECHR. ‘The question for the jury is not whether the defendant’s negligence was gross, and whether, additionally, it was a crime, but whether his behaviour was grossly negligent and consequently criminal. This is not a question of law, but one of fact.’

Teaching and revision resources on gross negligence manslaughter

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Theft (actus reus)

s 1 Theft Act 1968

(1) A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and “thief” and “steal” shall be construed accordingly.

(2) It is immaterial whether the appropriation is made with a view to gain, or is made for the thief’s own benefit.

s 3 Theft Act 1968

(1) Any assumption by a person of the rights of an owner amounts to an appropriation, and this includes, where he has come by the property (innocently or not) without stealing it, any later assumption of a right to it by keeping or dealing with it as owner.

R v Vinall (2011)

The two defendants punched the victim off his bike and chased him a short distance. They then returned to the bike, took it and abandoned it in a bus shelter fifty metres away from where they took it. They were convicted of robbery but appealed. The question was raised of whether they ‘appropriated’ the bike by taking it, by abandoning it, or both.

Held: the robbery convictions were quashed. But the Court of Appeal held that a theft charge could have been upheld because both the taking of the bike and the abandonment of it amounted to appropriations.

R v Pitham and Hehl (1977)

The defendant offered furniture for sale that belonged to someone else. The furniture was never removed from the house and the owner of it was never deprived of it.

Held: offering property for sale is an appropriation of the rights of the owner, even if the property is never ‘taken’.

R v Morris (1984)

The defendant swapped the price tags on two items in a supermarket. He put one of the items in his basket (now labelled more cheaply) and took it to the checkout. The defendant had not yet been through the checkout.

Held: the defendant was convicted of theft and the conviction was upheld on appeal. The right to put price tags on products was held to be a right of the owner, meaning swapping the tags was an appropriation. It is significant that the appropriation occurred even before the defendant bought the product.

Lawrence v Commissioner for the Met Police (1972)

The victim was an Italian student visiting London, who spoke little English. The defendant was a taxi driver. Not able to communicate about the fare for the journey, the student held out his wallet at the end of the trip for the defendant to take out the money for himself. The defendant took £7 from the wallet. The defendant was charged with theft but argued there was no appropriation because the victim consented to it by holding out the wallet.

Held: the defendant was convicted. The victim having consented to the appropriation does not stop it being an appropriation. (However, it is very relevant to deciding whether D has the mens rea for theft.)

R v Gomez (1993)

D was a shop assistant. He persuaded the manager to accept two cheques that he knew to be stolen and worthless in payment for goods worth £17,000. D was convicted, but the Court of Appeal quashed the conviction on the grounds that V had consented to the appropriation. The prosecution appealed to the House of Lords.

Held: the House of Lords restored the conviction. Although, in this case, the consent to the appropriation was gained through a false representation, the Lords held that this was not necessary. Even informed consent by V does not avoid an ‘appropriation’ for theft. The court also held that the assumption of any one right of the owner is enough for there to be an appropriation.

R v Hinks (1993)

D acted as the main carer for a 53-year-old man with limited capacity. However, the man understood the concepts of property and giving gifts. Over a period of eight months, the man withdrew around £60,000 from his bank and gave it to D.

Held: the House of Lords held that there was an appropriation. The fact that the money was given as a gift, without any deception by D, did not stop it being an appropriation. However, the Lords linked this directly to the question of ‘dishonesty’ in the mens rea for theft. A dishonestly accepted gift can be an appropriation.

Chan Man-sin v Attorney-General of Hong Kong (1988)

D was a company accountant who drew a forged cheque on the company’s bank account. The company had a legal right to have the withdrawal overturned and did not lose anything as a result of the appropriation.

Held: the fact that the company did not lose anything did not stop it being an appropriation. This reaffirms that theft is a conduct, not a consequence, crime.

R v Atakpu and Abrahams (1994)

The defendants hired cars abroad under false documentation. They travelled to the UK in the cars, were arrested at Dover and were charged with theft. At trial, they were convicted of theft.

Held: the Court of Appeal quashed the convictions. They held that “theft is a finite act – it has a beginning and it has an end… at what point the transaction is complete is a matter for the jury”. The court held that the appropriation was complete before the defendants arrived in England, meaning they could not be liable for theft under English law.

s 4 Theft Act 1968

(1) “Property” includes money and all other property, real or personal, including things in action and other intangible property.

(2) A person cannot steal land, or things forming part of land and severed from it by him or by his directions, except in the following cases, that is to say—

(a) when he is a trustee or personal representative, or is authorised by power of attorney, or as liquidator of a company, or otherwise, to sell or dispose of land belonging to another, and he appropriates the land or anything forming part of it by dealing with it in breach of the confidence reposed in him; or

(b) when he is not in possession of the land and appropriates anything forming part of the land by severing it or causing it to be severed, or after it has been severed; or

(c) when, being in possession of the land under a tenancy, he appropriates the whole or part of any fixture or structure let to be used with the land.

(3) A person who picks mushrooms growing wild on any land, or who picks flowers, fruit or foliage from a plant growing wild on any land, does not (although not in possession of the land) steal what he picks, unless he does it for reward or for sale or other commercial purpose.

(4) Wild creatures, tamed or untamed, shall be regarded as property; but a person cannot steal a wild creature not tamed nor ordinarily kept in captivity, or the carcase of any such creature, unless either it has been reduced into possession by or on behalf of another person and possession of it has not since been lost or abandoned, or another person is in course of reducing it into possession.

R v Kelly and Lindsay (1998)

The defendants worked together to take body parts from the laboratories of the Royal College of Surgeons to make casts of them in order to create sculptures. The defendants were convicted of theft and appealed on the grounds that body parts are not property.

Held: the Court of Appeal held that the body parts could be property because they had ‘different attributes by virtue of the application of skill, such as dissection or preservation’.

Oxford v Moss (1979)

The defendant dishonestly acquired confidential information about an exam he was going to sit. The defendant did not permanently deprive the university of the piece of paper itself, but did obtain the information on it. He was charged with theft.

Held: confidential information (even though it has a value and can be sold) is not property for the purposes of the Theft Act.

s 5 Theft Act 1968

(1) Property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest).

(2) Where property is subject to a trust, the persons to whom it belongs shall be regarded as including any person having a right to enforce the trust, and an intention to defeat the trust shall be regarded accordingly as an intention to deprive of the property any person having that right.

(3) Where a person receives property from or on account of another, and is under an obligation to the other to retain and deal with that property or its proceeds in a particular way, the property or proceeds shall be regarded (as against him) as belonging to the other.

(4) Where a person gets property by another’s mistake, and is under an obligation to make restoration (in whole or in part) of the property or its proceeds or of the value thereof, then to the extent of that obligation the property or proceeds shall be regarded (as against him) as belonging to the person entitled to restoration, and an intention not to make restoration shall be regarded accordingly as an intention to deprive that person of the property or proceeds.

(5) Property of a corporation sole shall be regarded as belonging to the corporation notwithstanding a vacancy in the corporation.

R v Turner (1971)

D’s car was at a local garage being repaired. D had agreed to pay for the repairs before he took the car. When it was left on the road outside the garage overnight, D used a spare key to take the car without paying for the repairs.

Held: D was convicted of theft and the conviction was upheld. Although D was in possession of the car, it was in the control of the garage. This makes it possible for a defendant to steal their own property.

R v Woodman (1974)

A company had sold a large amount of scrap metal, most of which had been collected. The company did not know that any scrap metal remained on the site. D took the remaining scrap metal. D was charged with theft.

Held: D was convicted of theft. The fact that V did not know the property was there does not stop the property being under their possession or control.

Ricketts v Basildon Magistrates (2010)

The defendant took bags that had been left outside of a charity shop. D argued that the bags did not ‘belong to another’ because they had been abandoned outside of the shop.

Held: D was convicted of theft. The court held that the property continued to belong to the person who had left the bags until the moment that the charity took control of them.

R v Webster (2006)

The defendant served in the British Army, including in the Iraq War. He was awarded a medal for his service by the Ministry of Defence, which mistakenly sent him a second copy of the medal. D sold the copy of the medal online. D was convicted and appealed on the grounds that the medal belonged to him.

Held: D’s conviction was upheld. The Court of Appeal held that the Ministry of Defence retained a proprietary interest in the medal, so it could not be sold without their approval.

R v Klineberg and Marsden (1999)

The defendants ran a company offering timeshare apartments in Lanzarote. Customers paid a total of £500,000 to the company on the understanding that the money would be held by an independent trust company to keep it secure. Only £233 was put into the independent company’s account. The defendants were charged with theft.

Held: the defendants were convicted. They were under an obligation to ‘retain and deal with the property… in a particular way’, and dealing with the money otherwise constituted theft.

Davidge v Bunnett (1984)

D shared a flat with other people. Her flatmates gave her money to pay the shared gas bill, but she instead used the money to buy Christmas presents.

Held: D was convicted of theft. She was under an obligation to use the money as agreed and did not do so.

R v Hall (1972)

D was a travel agent. Customers paid deposits for trips to the USA, which D paid into the firm’s general bank account instead of into a separate fund. D did not organise the trips but was then unable to return the money. D was convicted of theft and appealed on the grounds that he had never promised to treat the deposits separately.

Held: D’s conviction was overturned. D was not under an obligation to treat the deposits in a particular way, so did not commit theft when they were paid into the general bank account.

Attorney-General’s Ref. (No.1 of 1983) (1985)

D was a police officer who received an overpayment of £74.74 on her wages. She knew it was an overpayment and did not withdraw it, but also did not return it.

Held: D was liable for theft. While the money in the bank was hers to deal with as she wished, she was under an obligation to return the equivalent value to her employer. Failure to do so constituted theft.

Theft (mens rea)

s 2 Theft Act 1968

(1) A person’s appropriation of property belonging to another is not to be regarded as dishonest—

(a) if he appropriates the property in the belief that he has in law the right to deprive the other of it, on behalf of himself or of a third person; or

(b) if he appropriates the property in the belief that he would have the other’s consent if the other knew of the appropriation and the circumstances of it; or

(c) (except where the property came to him as trustee or personal representative) if he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps.

(2) A person’s appropriation of property belonging to another may be dishonest notwithstanding that he is willing to pay for the property.

R v Holden (1991)

D took scrap tyres from Kwik Fit, where he worked. Other employees often took tyres with the permission of management. D was convicted but appealed on the basis that he genuinely believed he had a right to take the tyres.

Held: the Court of Appeal quashed the conviction. Under s 2(1)(a) Theft Act, the defendant is not liable for theft if they appropriate the property ‘in the belief that he has in law the right to deprive the other of it’.

R v Robinson (1977)

D was charged with robbery after taking a £5 note that dropped out of V’s pocket during a fight. The victim’s wife owed D £7, and D took the £5 to cover part of the debt. D was convicted and appealed.

Held: D’s conviction was overturned by the Court of Appeal as he believed he had the right to take the money.

R v Mahmud (2024)

D was charged with robbery after forcibly taking a mobile phone from V at a bus stop. D believed he had a right to take the phone because it had not been paid for. The trial judge directed the jury that, for the defence under s 2(1)(a) to apply, D had to state that he believed he had a legal right to the property. D appealed.

Held: the Court of Appeal overturned D’s conviction. There is no need for D to state their belief in their legal right to the property; this can be inferred by the jury from D’s actions. The public “cannot be expected to be aware of the nuances of the law governing the passing of property in the civil law of sale of goods”.

R v Small (1987)

D took a car he believed to be abandoned, after if was left for two weeks unlocked in the same place, with keys in the ignition. As D drove the car away, the police tried to flag the car down and D ran away. D was convicted of theft on the basis that it was not reasonable to believe the owner couldn’t be found, but appealed.

Held: the conviction was quashed. Whether or not the belief was reasonable, D did have an honest belief that the owner could not be found.

Ivey v Genting Casinos (2017)

In a civil case, the casino refused to pay out winnings of £7.7 million to Ivey, who the casino accused of being ‘dishonest’ in winning by using a technique known as ‘edge sorting’ to track particular cards. The High Court held that Mr Ivey had behaved dishonestly and this was upheld by the Court of Appeal. Ivey appealed to the Supreme Court.

Held: the Supreme Court rejected the appeal and held that the test of dishonesty should be…

What was D’s actual state of knowledge or belief as to the facts?
Was D’s conduct dishonest by the standards of ordinary decent people?

R v Barton and Booth (2020)

Barton was the owner of a luxury nursing home; Booth was the general manager. For many years, Barton used his position to groom, defraud and steal from elderly and dependent residents who were wealthy, vulnerable and childless. He obtained over £4 million from his criminal activities. Booth was accused of facilitating this fraud.

Held: the Court of Appeal followed the Supreme Court’s test for dishonesty from Ivey v Genting:

What was D’s actual state of knowledge or belief as to the facts?
Was D’s conduct dishonest by the standards of ordinary decent people?

R v Hayes (2024)

D was a banker convicted at trial in 2015 for conspiracy to defraud (which requires dishonesty) after manipulating investment rates. His appeal was on the basis that he had not acted dishonestly because such behaviour was widespread and even encouraged in the banking industry. D appealed.

Held: the Court of Appeal rejected an appeal in 2024 because the second part of the dishonesty test is entirely objective: “honesty is determined by objective standards of honest and reasonable people; persons are not free to set their own standards”. In 2025, the Supreme Court quashed Hayes’s conviction because of a misdirection in the original trial, but did not question the Court of Appeal’s ruling on dishonesty.

s 6 Theft Act 1968

(1) A person appropriating property belonging to another without meaning the other permanently to lose the thing itself is nevertheless to be regarded as having the intention of permanently depriving the other of it if his intention is to treat the thing as his own to dispose of regardless of the other’s rights; and a borrowing or lending of it may amount to so treating it if, but only if, the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal.

R v Velumyl (1989)

The defendant was the manager of a company who took over £1000 in banknotes from the safe. He planned to return the money when he received payment from a friend who owed him money. The defendant was convicted and appealed on the basis that he didn’t intend permanently to deprive the company of the money.

Held: the Court of Appeal upheld D’s conviction. Even if he was planning to return money of the same value, D still intended permanently to deprive the company of the banknotes he took from the safe.

R v Vinall (2011)

Held: the intention permanently to deprive was demonstrated by the manner in which the appropriation took place. By taking the bike and abandoning it in a different place, the defendants demonstrated their intention permanently to deprive. The case also demonstrates the importance of the coincidence rule in theft. When the appropriation took place is crucial for finding whether it coincided with the mens rea.

Chief Constable of Avon and Somerset v Smith (1984)

The defendant broke into a car and took two cases from it. After searching through them, D hid one case in a nearby hedge and another in a public toilet.

Held: D was convicted of theft. The intention of permanently depriving was demonstrated by D disposing of the cases away from the car and by hiding them in the hedge and the public toilet.

DPP v Lavender (1994)

The defendant took doors from a different council house and used them to replace damaged doors in a council flat lived in by his girlfriend. The doors were still in a property owned by the council but had been moved without the council’s permission.

Held: D was liable for theft. Under s 6(1) Theft Act, the court held that D intended ‘to treat the thing as his own to dispose of regardless of the other’s rights’.

R v Lloyd (1985)

D borrowed a film from a friend, who was the projectionist at a cinema. D made a copy of the film and returned it to the projectionist in time for the next screening of the film. D was convicted of theft and appealed.

Held: D’s conviction was quashed. While D had the film, ‘the goodness, the virtue, the practical value’ of it remained, so there was no intention of permanently depriving the cinema of it.

R v Easom (1971)

The defendant picked up a handbag in a cinema and checked through it to see if there was anything worth stealing. D replaced the handbag in the same place without taking anything from it. D was convicted of theft and appealed.

Held: D’s conviction was quashed. Conditional intent – intent if certain circumstances are present – is not enough for an intention of permanently depriving.

Teaching and revision resources on theft

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Robbery

s 8 Theft Act 1968

(1) A person is guilty of robbery if he steals, and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force.

(2) A person guilty of robbery, or of an assault with intent to rob, shall on conviction on indictment be liable to imprisonment for life.

R v Waters (2015)

D snatched V’s phone, telling her that he would return it if one of her friends would speak to him. D was convicted of robbery and appealed on the grounds that there was no completed theft, so there could be no liability for robbery.

Held: D’s conviction was overturned. The Court of Appeal held that the promise to return the phone if one of V’s friends spoke to D meant that there was no intention of permanently depriving V of the phone. As this was missing, there was no completed theft and no robbery.

R v Zerei (2012)

D punched V and threatened him with a knife to hand over his car keys. D then drove the car away and abandoned it, without having damaged it, around a kilometre away. At trial, the judge directed the jury that the use of force in the appropriation was enough to demonstrate intention of permanently depriving. D was convicted of robbery and appealed.

Held: the Court of Appeal quashed the conviction. The Court held that the judge had misdirected the jury about the relationship between the use of force and intention permanently to deprive.

Corcoran v Anderton (1980)

D hit a woman in the back and pulled at her handbag. She dropped the bag and it fell to the ground. The woman screamed to attract the attention of other people, at which point D ran away without taking the bag.

Held: the theft was complete the moment V dropped the bag. Because force had already been used, this meant the robbery was complete.

R v Dawson and James (1976)

D1 pushed the victim off balance, allowing D2 to steal V’s wallet. Both defendants were convicted and appealed on the basis that the amount of force used was quite low.

Held: their conviction for robbery was upheld. The Court of Appeal held that, for robbery, ‘force’ has its usual meaning and it is up to the jury to decide whether force has been used.

R v Clouden (1987)

D did not touch V, but wrestled a shopping basket from her hand and then ran away with it. D was convicted of robbery and appealed on the basis that he had not used force on any person.

Held: the defendant’s conviction was upheld by the Court of Appeal. The Court of Appeal held that applying force indirectly to the victim (i.e. by wrenching the basket from her) was still ‘force’.

P v DPP (2012)

D took a cigarette from V’s hand. D did not touch V and the cigarette came straight out of V’s hand without needing to be wrestled from it.

Held: D was liable for theft but not robbery. No force (either direct or indirect) had been applied. Similarly, a pickpocket who simply takes a wallet from someone’s pocket without pushing/jostling them is liable for theft but not robbery.

B and R v DPP (2007)

Five boys surrounded V (a 16-year-old) asking for his money and his mobile phone. More boys arrived and surrounded V. They held his arms while they searched V looking for the phone and money. The defendants were convicted of robbery and appealed on the basis that V did not actually feel threatened by what they did.

Held: the convictions were upheld. The defendants had applied force in holding the boy’s arms while they searched him. But there was no need for the force to be applied, providing Ds ‘sought’ to put V in fear of force.

R v Hale (1979)

Two defendants broke into V’s house. One held his hand over V’s mouth while the other took a jewellery box. Before leaving the house, they tied up V. The defendants were convicted of robbery and appealed on the grounds that they did not apply force to the victim until after the theft had taken place.

Held: the Court of Appeal upheld the convictions, holding that the theft was made up by a whole course of conduct (including then leaving the house), so the defendants tying up V was still using force at the time of the theft.

R v Lockley (1995)

D was caught by a shopkeeper stealing cans of beer. As the shopkeeper tried to stop D leaving the shop, D assaulted him. D was convicted of robbery and appealed. The basis of the appeal was that the ruling in R v Gomez (that theft is a finite and not a continuing act) had overruled the decision in R v Hale that it could be.

Held: D’s conviction was upheld. While Gomez does mean that appropriation is a finite act for the purposes of theft, it can be a continuing act for the purposes of robbery.

Teaching and revision resources on robbery

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Burglary

s 9 Theft Act 1968

(1) A person is guilty of burglary if—

(a) he enters any building or part of a building as a trespasser and with intent to commit any such offence as is mentioned in subsection (2) below; or

(b) having entered any building or part of a building as a trespasser he steals or attempts to steal anything in the building or that part of it or inflicts or attempts to inflict on any person therein any grievous bodily harm.

(2) The offences referred to in subsection (1)(a) above are offences of stealing anything in the building or part of a building in question, of inflicting on any person therein any grievous bodily harm therein, and of doing unlawful damage to the building or anything therein.

(3) A person guilty of burglary shall on conviction on indictment be liable to imprisonment for a term not exceeding:

(a) where the offence was committed in respect of a building or part of a building which is a dwelling, fourteen years;

(b) in any other case, ten years.

(4) References in subsections (1) and (2) above to a building, and the reference in subsection (3) above to a building which is a dwelling, shall apply also to an inhabited vehicle or vessel, and shall apply to any such vehicle or vessel at times when the person having a habitation in it is not there as well as at times when he is.

R v Brown (1985)

D was standing outside of a shop when he smashed a window, leaned through the broken window and rummaged through goods in order to steal. The lower half of his body remained outside the shop. D was convicted of burglary and appealed on the basis of a previous Court of Appeal decision in Collins that there has to be an ‘effective and substantial entry’.

Held: D’s conviction was upheld. The Court of Appeal ruled that entry must be ‘effective’ but that ‘substantial’ is not a useful addition to the law. D’s entry was effective because enough of his body was inside the shop to rummage through the goods.

R v Ryan (1996)

D had to be rescued by the fire brigade when he became stuck trying to get through the window of an elderly man’s house. When he was found, his head and one arm were inside the window. The trial judge directed the jury that whether there was an ‘entry’ was a matter for them to decide based on the facts. D was convicted and appealed.

Held: the Court of Appeal applied the ruling in Brown to say that there was an ‘effective’ entry. The court also upheld the trial judge’s direction that whether or not there is an entry is a matter of fact for the jury.

R v Jones and Smith (1976)

The two defendants entered Smith’s father’s house to steal two televisions. Smith’s father confirmed that he had given unreserved permission to his son to be in his house. Both defendants were convicted of burglary and appealed on the basis that they were not trespassers.

Held: both convictions were upheld. Quoting The Calgarth, the court held that an invitation to someone’s premises is limited (by time, extent or purpose). By entering in order to steal the TV, even Smith had gone beyond the limits of his invitation and was therefore a trespasser.

B and S v Leathley (1979)

The defendants broke into a freezer container in a farmyard and stole from it. The container had been on the site for over two years, had locked doors and was connected to mains electricity. It rested on sleepers. The defendants were convicted of burglary and appealed.

Held: their convictions were upheld. The court held that, for the purposes of burglary, the container was a ‘building’.

Norfolk Constabulary v Seekings and Gould (1986)

The defendants were charged with attempted burglary of two lorry trailers that were being used for about a year as storage outside a supermarket. The trailers each had an electricity supply. The trailers rested on their own wheels, but steps had been build up to the shutters to enable easy access. The defendants were convicted of attempted burglary and appealed.

Held: the defendants’ convictions were quashed. The trailers, by resting on their wheels, remained as vehicles. Because the trailers were not buildings, there was no attempted burglary.

R v Walkington (1979)

D was a customer in a department store. He saw a payment counter left unattended. The counter was enclosed on three sides. D went behind the counter and looked through the till, which he found to be empty. A security guard detained D, who admitted he would have taken money from the till if there was any there. D was convicted of burglary and appealed.

Held: the Court of Appeal upheld D’s conviction. The counter area was ‘part of a building’ for the purposes of burglary, and D had entered it as a trespasser with intent to steal.

R v Rodmell (1994)

D entered a garden shed and stole power tools from it. The shed was around 50 metres from the house. Judges (and statute) hold domestic burglary to be more serious than other burglary, and sentences for domestic burglary are more severe. D was convicted and appealed on the basis that the shed was not a dwelling.

Held: D’s conviction was upheld. “A garden shed is part of a person’s home… although it can be said to be not quite as serious as breaking into a place where people live.”

Teaching and revision resources on burglary

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Attempt

s 1 Criminal Attempts Act 1981

(1) If, with intent to commit an offence to which this section applies, a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence.

(2) A person may be guilty of attempting to commit an offence to which this section applies even though the facts are such that the commission of the offence is impossible.

(4) This section applies to any offence which, if it were completed, would be triable in England and Wales as an indictable offence, other than [short list of offences].

R v Gullefer (1987)

D had bet £18 on a greyhound race. Seeing that the dog was losing, D jumped onto the track in an effort to get the stewards to call off the race, which would allow him to recover his stake. He was convicted of attempted theft and appealed.

Held: D’s conviction was quashed. In the appeal ruling, the question was asked whether D had moved beyond mere preparation and ‘embarked on the crime proper’. The court held that, until D went to the bookmaker to demand the £18 back, he had not attempted theft.

Attorney-General’s Reference (No.1 of 1992) (1993)

D dragged the victim up a set of stairs into a shed, where he removed her underwear, laid on top of her and pulled his trousers down. At this point the police arrived. D was charged with attempted rape, but the trial judge directed the jury to acquit.

Held: the Court of Appeal overturned the judge’s direction to the jury and D was convicted. Crucially, the Court of Appeal held that the defendant does not need to have reached the ‘point of no return’ or to have done the last act before the crime proper in order to be convicted of attempt.

R v Geddes (1996)

D was found to have been trespassing in the boys’ toilets of a school, with alcohol, rope, a roll of masking tape and a large kitchen knife. When he was challenged by a police officer, D ran away. He was convicted of attempted false imprisonment and appealed.

Held: the Court of Appeal overturned the conviction. The Court admitted that the line between ‘mere preparation’ and attempt is not easy, but used two questions to decide that D was not liable:

Had D moved from planning or preparation to execution or implementation?
Had D done an act showing he was actually trying to commit the offence, or had he only got as far as putting himself in a position, or equipping himself, to do so?

The Court of Appeal overturned the conviction because D had only equipped himself, or put himself in a position, to commit the offence. He hadn’t actually moved to ‘attempt’ it.

R v Campbell (1990)

D rode on his motorbike to a Post Office, parked up outside and walked towards the entrance with a fake gun and a threatening note addressed to a cashier. Just before he entered, a police officer stopped D and arrested him. D was convicted of attempted robbery and appealed.

Held: the Court of Appeal overturned D’s conviction. He had done some preparatory acts (driving there, walking towards the door, gathering equipment) but he had not ‘attempted’ robbery because there were still several things he needed to do (e.g. entering the Post Office, approaching the counter, speaking to a cashier) before he could be liable for attempted robbery.

R v Boyle and Boyle (1987)

The defendants were found outside the door of a property. The lock and hinge of the door had been broken. The defendants were convicted of attempted burglary and appealed.

Held: their conviction was upheld. To commit burglary, they needed to enter the premises with intent to steal, cause GBH or criminal damage. By breaking the lock and hinge, they had attempted to do so.

R v Tosti and White (1997)

Ds approached a barn around midnight and examined the padlock. They ran away when the farmer saw them, but it was found that they had hidden some lock-breaking equipment in a nearby hedge. They were convicted of attempted burglary and appealed.

Held: the Court of Appeal upheld their convictions. Following Geddes, it was held that, by driving to the scene, hiding the lock-breaking equipment, approaching the barn and examining the padlock, they had gone beyond ‘putting themselves in a position’ to attempt burglary and had actually tried to commit it.

R v Jones (1990)

D bought a gun and shortened the barrel of it. He disguised himself and travelled to a school where V often dropped off his child in the morning. When the child left the car, D jumped into the car and told V to drive. A short while later, D pulled the sawn-off gun from his bag and aimed it at V, saying, “You are not going to like this.” V wrestled the gun from D and threw it out of the window. D was convicted of attempted murder and appealed.

Held: D’s conviction was upheld. It was held that, up to the point of going to the school D’s acts were merely preparatory, but became an attempt when he got in the car and pointed the gun with the intention to kill.

Andrews v Chief Constable of Suffolk (2022)

D saw an unattended 9-year-old girl in a car park. He went to his car, put loud music on, drove around the car park and stopped next to the girl. He told her the music was for her, then got out of his car and moved towards her, asking her if she wanted to dance. At this point, the child’s mother arrived and D left. He was arrested for attempted child abduction and sued the police for false imprisonment.

Held: in dismissing his case, the High Court held that there was enough evidence from D’s actions of his attempted abduction of the child. The Court distinguished from Geddes on the basis that Andrews had actually approached a child.

s 1 Criminal Attempts Act 1981

(2) A person may be guilty of attempting to commit an offence to which this section applies even though the facts are such that the commission of the offence is impossible.

(3) In any case where—

(a) apart from this subsection a person’s intention would not be regarded as having amounted to an intent to commit an offence; but

(b) if the facts of the case had been as he believed them to be, his intention would be so regarded,

then, for the purposes of subsection (1) above, he shall be regarded as having had an intent to commit that offence.

R v Jones (1990)

Held: D’s conviction was upheld. D clearly intended to kill V. This mens rea was also used as evidence that his acts went beyond mere preparation for the actus reus.

R v Whybrow (1951)

The defendant connected up electrical wiring to a bath and used it to electrocute his wife. His wife survived the incident and D was convicted of attempted murder. At trial, the judge directed that jury that they could convict of attempted murder if D had either the intent to kill or the attempt to commit GBH. D appealed.

Held: D’s conviction was upheld, but the appeal court stressed that only intent to kill is enough for the mens rea of attempted murder. Intent to cause GBH is not enough.

R v Millard and Vernon (1987)

The defendants were charged with attempted criminal damage after repeatedly pushing against a fence on a stand in a football ground. The prosecution argued that, because recklessness is enough for the mens rea of criminal damage, it is also enough for the mens rea of attempted criminal damage. Ds were convicted and appealed.

Held: the Court of Appeal quashed the convictions. Recklessness is not enough for the mens rea of attempt, even where it is enough for the mens rea of the full offence.

R v Pace and Rogers (2014)

Ds ran a scrap metal firm that police suspected of selling stolen goods. Undercover officers approached them with scrap metal, hinting to the men that the metal was stolen. Ds agreed to buy the metal and were charged with ‘attempting to conceal, disguise, or convert criminal property’. The full offence requires D to know or believe the property is criminal. Ds were convicted and appealed.

Held: their convictions were overturned. The Court of Appeal held that ‘ordinary language’ means that the mens rea of attempt requires an intent to commit all elements of the offence.

R v Husseyn (1977)

D was seen by police looking closely at a parked van containing valuable equipment, while another man tampered with the van’s back door. D fled when the police approached. D was convicted of attempted theft after the trial judge directed the jury that conditional intent is enough for the mens rea of attempted theft.

Held: the Court of Appeal quashed the conviction, because D must have the mens rea for the full offence at the time of their act showing an attempt. Because he didn’t yet know whether there was anything worth stealing, D was not liable for attempted theft.

Attorney-General’s Reference (Nos 1 and 2 of 1979) (1979)

One of the defendants was charged with attempted burglary after being arrested trying to enter a building. The defendant had conditional intent to steal – i.e. the defendant intended to steal things if he found things worth stealing.

Held: the court held that conditional intent to steal is enough for the mens rea of attempted theft, robbery and burglary. This overturns the decision made in R v Husseyn.

Anderton v Ryan (1985)

D thought a video recorder had been stolen when she bought it. She confessed this to police and was charged with attempting to handle stolen goods. There was not enough evidence to prove that the video recorder had actually been stolen, meaning that D had been trying to handle stolen goods but this was impossible because the goods weren’t stolen. She was convicted and appealed.

Held: the House of Lords quashed her conviction. Despite the passing of the Criminal Attempts Act in 1981, the Lords continued to apply the old law that attempting the impossible could not create criminal liability for attempt.

R v Shivpuri (1986)

D was charged and convicted of attempting to be knowingly concerned in dealing with heroin. Working as a drugs courier, he collected a package that he believed to contain heroin. On collecting the package, he was arrested. The package actually contained a harmless substance. D appealed to the House of Lords.

Held: the House of Lords used the 1966 Practice Statement to overturn their own precedent from Anderton v Ryan and to enforce s 1(2) Criminal Attempts Act 1981, which allows liability for attempt even if the full offence was impossible.

Teaching and revision resources on attempt

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Insanity

M’Naghten (1843)

D was suffering from paranoia and believed he was being persecuted by Robert Peel’s government. He shot dead Edward Drummond, Peel’s secretary, after mistaking him for Peel. M’Naghten was acquitted of a murder charge and sent to a psychiatric hospital. His acquittal caused public outcry and the House of Lords responded by questioning a panel of senior judges to clarify the law on insanity.

Held: M’Naghten’s acquittal was never reviewed, but it did lead to the House of Lords issuing a model direction to juries with a test for insanity. Under their test, M’Naghten would likely have been found guilty of murder. The House of Lords clarified the requirements for an insanity defence:

Defect of reason
Caused by a disease of the mind
That causes D not to know the nature and quality of the act or that the act was wrong

These requirements were challenged in R v Usman (2023) but upheld by the Court of Appeal as established law, unless Parliament chooses to change it.

R v Clarke (1972)

D took items (including a jar of mincemeat) from a supermarket in her bag without paying for them. She was charged with theft and argued in court that she had no memory of taking the items and that she wouldn’t have knowingly done it because she didn’t like mincemeat. The trial judge ruled that this amounted to an insanity defence, so D pleaded guilty to theft and appealed.

Held: the Court of Appeal quashed the conviction and ruled that the trial judge was wrong about the insanity defence. A defendant having powers of reason but failing to use them – or suffering moments of confusion or absent-mindedness - doesn’t amount to a ‘defect of reason’ under the M’Naghten rules.

R v Kemp (1956)

D suffered from impaired blood supply to the brain caused by a hardening of his arteries. This sometimes caused moments of unconsciousness. During one episode, he attacked his wife with a hammer and was charged with s 20 GBH. He was found not guilty by reason of insanity and appealed on the basis that his disease was not one ‘of the mind’, but was a physical disease.

Held: the Court of Appeal ruled that ‘mind’ does not mean ‘brain’. Kemp had a disease that affected his reason, memory and understanding, so it fell within the M’Naghten rules on insanity.

R v Sullivan (1984)

D suffered from epilepsy and was sometimes aggressive during fits. While visiting an elderly neighbour, D had a fit and injured V. The judge ruled that D should be found not guilty by reason of insanity, so D pleaded guilty to s 47 ABH and appealed.

Held: the House of Lords upheld the conviction and ruled that epilepsy comes within the M’Naghten rules. This means organic (physical) conditions, including those that come and go, can be considered in an insanity defence.

R v Hennessy (1989)

D was diabetic and had not taken his insulin for several days. He stole a car and was charged with taking a vehicle without consent and driving while disqualified. D wanted to use a defence of automatism, but the judge ruled that using diabetes as a defence amounted to a defence of insanity. D pleaded guilty and appealed.

Held: the Court of Appeal ruled that diabetes comes within the M’Naghten rules and so the trial judge was right to say that Hennessy’s defence amounted to one of insanity.

R v Burgess (1989)

D had a sleep disorder. He fell asleep with his girlfriend and, while asleep, attacked his girlfriend. There was no evidence that his sleep-walking was caused by an external factor. D wanted to use an automatism defence, but the trial judge directed a verdict of not guilty by reason of insanity. D appealed.

Held: the Court of Appeal agreed with the trial judge that sleepwalking falls within the M’Naghten rules on insanity.

R v Quick (1973)

D was a diabetic. He had taken his insulin but hadn’t eaten enough food afterwards to stabilise his blood sugar. As a result, D attacked a patient at the psychiatric hospital where he worked as a nurse. The case went to appeal on the question of whether D’s defence was one of insanity or automatism.

Held: the Court of Appeal held that Quick was able to use an automatism defence rather than an insanity defence. The cause of the defect of reason was external (the insulin) and not internal (his diabetes).

R v Coley (2013)

D used cannabis and played a violent video game. Soon afterwards, he went into his neighbours’ house and attacked two people with a knife. He said he had blacked out and had no memory of what happened. D was charged with attempted murder and tried to plead insanity, but the judge refused to allow the defence to go to the jury. D was convicted and appealed.

Held: the Court of Appeal upheld the conviction. Coley’s defect of reason was caused by voluntary intoxication and not an internal disease of the mind.

R v Oye (2013)

D believed that police officers were agents of evil forces in the world and had the faces of demons. He threw crockery at the police when they went to a café to arrest him and then punched a police officer at the station. D was charged with ABH and affray. At trial, the defence argued both limbs of the insanity defence, that D did not know the nature and quality of the act and did not know it was wrong. The judge allowed the defence to go to the jury but the jury rejected it and convicted. The defence appealed.

Held: the Court of Appeal overturned the judgement and substituted a verdict of not guilty by reason of insanity.

R v Windle (1952)

D’s wife had spoken of killing herself for a long time. D also suffered from mental illness and killed his with a large overdose of aspirin. When he handed himself in to the police, D said, “I suppose they will hang me for this.”

Held: D was convicted of murder. He knew the nature and quality of the act and he had admitted to police that he knew that what he was doing was legally wrong. For a long time, the second limb rested purely on whether the defendant knew their act was legally wrong.

R v Johnson (2007)

D stabbed his neighbour and was charged with wounding with intent under s 18 OAPA. Two psychiatrists gave evidence that D had paranoid schizophrenia, but had known the nature and quality of his act and known his act to be legally wrong. One of the experts gave evidence that D hadn’t known that what he was doing was morally wrong.

Held: D was convicted and the conviction was upheld. Following Windle, the Court of Appeal ruled that the second limb means that D did not know their act was legally wrong, which Johnson did.

R v Keal (2022)

D was mentally ill and believed he was possessed by the devil. He was convicted of attempted murder after attacking both of his parents and his 91-year-old grandmother with knives, scissors and a cricket bat. While he was attacking them, D apologised repeatedly for what he was doing. Psychiatrists agreed that D was seriously ill. The trial judge withdrew the defence of insanity from the jury.

Held: the Court of Appeal upheld the conviction, holding that the second limb of the third requirement (knowledge that the act is wrong) requires that D did not know that the act was legally wrong and did not know it was “wrong by the standards of ordinary reasonable people”. If D does know either of those things, they lose the defence.

Teaching and revision resources on capacity defences

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Intoxication

DPP v Beard (1920)

The defendant, while drunk, suffocated a 13-year-old girl during a sexual attack on her. He was charged with murder.

Held: the defendant was acquitted of the murder and convicted of manslaughter instead. A defendant can’t be convicted of a specific intent offence if their intoxication meant they couldn’t have formed the mens rea for it. “If he was so drunk that he was incapable of forming the intent required, he could not be convicted of a crime which was committed only if the intent was proved.”

R v Sheehan and Moore (1975)

The two defendants were drunk. They covered a homeless man in petrol and set it alight, causing the man’s death. They were convicted of murder after the trial judge used the direction from DPP v Beard based on whether the defendants were capable of forming the mens rea. Sheehan appealed.

Held: the Court of Appeal overturned the conviction and overruled the precedent from DPP v Beard. It was held that the correct question for the jury is whether the defendant did form the mens rea, not whether they could form it. If the prosecution can’t prove that the defendant did form the mens rea, there is no conviction.

R v Campaneu (2020)

D, while intoxicated with crack cocaine, killed his partner and their unborn child. He was convicted of murder and child destruction after the trial judge refused to give a direction based on Sheehan to the jury. D appealed.

Held: the Court of Appeal held that the judge didn’t need to use the Sheehan direction because the defendant hadn’t claimed in evidence that intoxication had prevented him from having the required intent. This upheld Sheehan as good law, but underlined that there must be some evidence for the intoxication preventing mens rea being formed.

DPP v Majewski (1977)

D voluntarily took drugs and drank a lot of alcohol in a pub. He attacked the landlord, damaged the pub and attacked police officers as they arrested him. He was convicted of a string of basic intent offences and appealed.

Held: the House of Lords rejected the appeal. They held that there is a difference between basic and specific intent offences and that, where a defendant is voluntarily intoxicated, they don’t have a defence to a basic intent charge. Becoming voluntarily intoxicated is reckless in itself.

R v Allen (1988)

D drank a large amount of home-made wine, which he didn’t realise was as strong as it was. While drunk, he committed multiple sexual assaults. He was charged with basic intent offences and defended himself on the basis that his intoxication wasn’t really voluntary.

Held: it was held that his intoxication was still voluntary, even though he didn’t realise how strong the wine was. Because he was charged with basic intent offences, his voluntary intoxication did not provide him with a defence.

R v Lipman (1970)

D and his girlfriend took LSD. This caused D to hallucinate, believing he was fighting a snake on his way to the centre of the earth. In fact, he had stuffed a sheet down his girlfriend’s throat and beat her twice over the head. She died and the defendant was charged with both murder and unlawful act manslaughter.

Held: D was acquitted of murder because he did not form the mens rea, but was convicted of the unlawful act manslaughter. This demonstrates the successful use of ‘fallback offences’ by the CPS – charging with a basic intent alternative to ensure a conviction, even if a specific intent charge cannot be proven.

Attorney General for Northern Ireland v Gallagher (1963)

D wanted to kill his wife. He bought a knife and drank a large amount of whisky to provide ‘Dutch courage’ for the killing. He killed her and was charged with murder.

Held: D was convicted and the conviction was upheld. The defendant formed the mens rea before becoming intoxicated, meaning there was no defence even to a specific intent charge. The case also demonstrates the key rule that ‘drunken intent is still intent’.

R v Kingston (2008)

In a deliberate set-up, the defendant was drugged by his friend and invited to sexually assault a 15-year-old boy who had also been drugged and was asleep. The defendant did abuse the boy and was photographed doing so by the man who had set it up. D was convicted of basic intent offences and successfully appealed, but the prosecution appealed again to the House of Lords.

Held: the Lords reinstated D’s conviction. Following the rule that drunken intent is still intent, the Lords held that (despite the intoxication being involuntary) Kingston did form the mens rea for the basic intent offences with which he had been charged. Part of the ruling held that Kingston formed the mens rea in advance of being drugged.

R v O’Grady (1987)

D got very drunk with his friend (V). D gave evidence that he had woken in the night to find V hitting him, so D hit V with an ashtray and went back to sleep. In the morning, D found V dead. D was charged with both murder and manslaughter and was convicted of manslaughter. D appealed on the basis that, in his drunken state, he had made a mistake about the necessity of using force in self-defence, so self-defence should have been allowed to go to the jury.

Held: D’s conviction was upheld. Public policy means that a defendant can’t make an intoxicated mistake about the need to use force in self-defence and then use this as a defence in court.

R v Hatton (2005)

D drank over 20 pints of beer and went back to his flat with another man (V). D claimed that, overnight, the other man had hit him with a big stick and that D had defended himself against the attack. V was found dead the next morning from injuries caused by a sledgehammer. D was convicted of murder and appealed.

Held: D’s conviction for murder was upheld. It was held that the decision in O’Grady applies to specific intent offences as well as basic intent offences.

R v Taj (2018)

D was a long-term user of alcohol and drugs that caused him to suffer psychotic episodes even after the intoxication from the drugs or alcohol had worn off. During a post-intoxication psychotic episode, Taj saw a Muslim man he believed to be a terrorist and attacked him, causing serious harm. Taj was convicted and appealed on the basis that s 76(5) Criminal Justice and Immigration Act did not apply because, at the time of the attack, he was no longer actually intoxicated.

Held: the appeal was dismissed. The court held that “attributable to intoxication” in s 76(5) does not mean the defendant still needs to be actually intoxicated.

Teaching and revision resources on capacity defences

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Automatism

Hill v Baxter (1958)

D drove through a stop sign and hit another car. D told magistrates he had no memory of what happened and was acquitted on the basis that he had been acting automatically – the actus reus of driving through the stop sign was involuntary. The prosecution appealed.

Held: the Divisional Court overturned the decision and D was convicted. The Court followed a previous ruling in which an example was given of what might amount to automatic driving: “the car has been put temporarily out of his control owing to his being attacked by a swarm of bees”.

Bratty v Attorney-General for Northern Ireland (1963)

D was prosecuted for the murder of an 18-year-old woman. He told the police he had experienced a “sort of blackness” while doing it. The judge refused to allow the automatism defence to go to the jury and the defence appealed.

Held: the House of Lords upheld the defendant’s conviction and provided a definition of automatism. “An act done by the muscles without any control by the mind, such as a spasm, a reflex action or a convulsion; or an act done by a person who is not conscious of what they are doing such as an act done whilst suffering from concussion.”

R v T (1990)

D took part in a robbery and an assault three days after she had been raped. The defence argued that post-traumatic stress resulting from the rape had caused her to act in a dream-like state during the robbery.

Held: the trial judge allowed the defence of automatism to be put to the jury, but the jury convicted the defendant.

Attorney-General’s Reference (No.2 of 1992) (1993)

D was a lorry-driver who drove for around half a mile along the hard shoulder of a motorway before hitting a car and killing two people. The defence argued that he was suffering from ‘driving without awareness’ and driving a long distance had caused him to be driving without control of his muscles. D was acquitted and the case was referred to the Court of Appeal by the Attorney-General.

Held: the Court of Appeal clarified that the decision was wrong because the defendant had only partially lost control of his muscles. Automatism requires a total loss of voluntary control.

R v Coley (2013)

D used cannabis and played a violent video game. Soon afterwards, he went into his neighbours’ house and attacked two people with a knife. He said he had blacked out and had no memory of what happened. D was charged with attempted murder and tried to plead automatism as well as insanity, but the judge refused to allow the defences to go to the jury. D was convicted and appealed.

Held: the Court of Appeal upheld the conviction. Coley’s inability to control himself was caused by voluntarily taking cannabis, so amounted to an intoxication defence which failed. The Court also held that Coley had not lost total control of his actions.

R v McGhee (2013)

In an appeal heard alongside Coley, D took temazepam and drank alcohol while suffering with tinnitus. He was prosecuted under s 47 and s 18, but said he did not remember the events.

Held: the Court of Appeal held that, even if D had been acting automatically, the automatism defence would fail because he induced it himself by drinking while taking temazepam.

R v Bailey (1983)

D was diabetic and took his insulin but failed to eat enough afterwards to stabilise his blood sugar. He hit V with a metal bar and was charged under s 18 GBH with intent. The trial judge refused to allow automatism to go to the jury and D was convicted.

Held: the Court of Appeal held that the trial judge should have allowed automatism to go to the jury, because s 18 is a specific intent offence and the effects of the insulin may have prevented him having the necessary intent, but the conviction was upheld because there was not enough evidence of automatism.

R v Hardie (1984)

D was charged with arson (a basic intent offence) after setting fire to a wardrobe. At the time of the arson D had lost control after taking Valium tablets which he had not been prescribed, to calm himself down after a break-up. The trial judge directed the jury to ignore the effects of the Valium tablets and D was convicted.

Held: the Court of Appeal overturned Hardie’s conviction. The normal effect of Valium is to calm someone down, so D had acted appropriately and had not been reckless even by taking the tablets.

Teaching and revision resources on capacity defences

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Self-defence

s 76 Criminal Justice and Immigration Act 2008

(1) This section applies where in proceedings for an offence—

an issue arises as to whether a person charged with the offence (“D”) is entitled to rely on a defence within subsection (2), and
the question arises whether the degree of force used by D against a person (“V”) was reasonable in the circumstances.

(3) The question whether the degree of force used by D was reasonable in the circumstances is to be decided by reference to the circumstances as D believed them to be, and subsections (4) to (8) also apply in connection with deciding that question.

(4) If D claims to have held a particular belief as regards the existence of any circumstances—

the reasonableness or otherwise of that belief is relevant to the question whether D genuinely held it; but
if it is determined that D did genuinely hold it, D is entitled to rely on it for the purposes of subsection (3), whether or not—

it was mistaken, or
(if it was mistaken) the mistake was a reasonable one to have made.

(5) But subsection (4)(b) does not enable D to rely on any mistaken belief attributable to intoxication that was voluntarily induced.

(5A) In a householder case, the degree of force used by D is not to be regarded as having been reasonable in the circumstances as D believed them to be if it was grossly disproportionate in those circumstances.

(6) In a case other than a householder case, the degree of force used by D is not to be regarded as having been reasonable in the circumstances as D believed them to be if it was disproportionate in those circumstances.

(6A) In deciding the question mentioned in subsection (3), a possibility that D could have retreated is to be considered (so far as relevant) as a factor to be taken into account, rather than as giving rise to a duty to retreat.

(7) In deciding the question mentioned in subsection (3) the following considerations are to be taken into account (so far as relevant in the circumstances of the case)—

that a person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action; and
that evidence of a person's having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose.

(8A) For the purposes of this section “a householder case” is a case where—

(a) the defence concerned is the common law defence of self-defence,

(b) the force concerned is force used by D while in or partly in a building, or part of a building, that is a dwelling or is forces accommodation (or is both),

(d) at that time D believed V to be in, or entering, the building or part as a trespasser.

s 3 Criminal Law Act 1967

(1) A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.

(2) Subsection (1) above shall replace the rules of the common law on the question when force used for a purpose mentioned in the subsection is justified by that purpose.

R v Gladstone Williams (1983)

D mistakenly attacked a man after he thought the man was attacking a young person on a bus. In fact, the man was a police officer arresting the young person for mugging an elderly lady. D was charged with ABH. D was convicted after the trial judge directed the jury that D could only use self-defence or the prevention of crime if his mistaken view of the situation had been a reasonable one.

Held: D’s conviction was overturned by the Court of Appeal. The first test (whether any force was necessary) is tested subjectively based on D’s actual knowledge and beliefs at the time.

Beckford v The Queen (1988)

D was an armed police officer in Jamaica. He attended a house where he had been told there was a man scaring people with a gun. D said that, when he arrived, he saw a man running from the back door who then shot at the police. D shot and killed the man. No gun was found at the house afterwards. D was convicted of murder after the trial judge told the jury that D’s belief they are going to be attacked must be a reasonable one.

Held: the Privy Council overturned the conviction, holding that self-defence is available if D honestly believes they are defending themselves or others.

R v Riddell (2017)

A man sat on the bonnet of D’s car, leading D to feel threatened by him. D responded by accelerating quickly away while the man was still sitting on the car. D was charged with dangerous driving and argued that she had been acting in self-defence. The question was raised whether self-defence is available for crimes other than offences against the person.

Held: the Court of Appeal held that the defence was available for a dangerous driving charge. However, it would be unusual because D must actually have used force against the victim.

R v Bird (1986)

D’s ex-boyfriend came to her birthday party and an argument broke out. D threw a drink at him and he responded by slapping her and pushing her up against a wall. D punched him in the face but claimed she had forgotten she was holding a glass. The glass caused the man to lose an eye. D was charged with s 20 GBH but argued self-defence. The question was raised whether D can use self-defence if she showed no willingness to retreat before she used force.

Held: the Court of Appeal held that D doesn’t have to show a willingness to retreat and D can use a pre-emptive strike, as long as there is an honest belief that the force is necessary.

R v Rashford (1986)

D had a fight with a man with whom he had previously had another dispute. D started the fight, but V and others reacted disproportionately to D’s original attack. D then stabbed V and killed him. D was convicted of murder after the trial judge directed the jury that self-defence was not available because D himself was the original aggressor.

Held: the Court of Appeal held that the trial judge’s direction was wrong. D only loses the possibility of the defence if D is the aggressor throughout the altercation. D can use self-defence if D is the initial aggressor but then the other party becomes even more aggressive. However, on the facts, the Court of Appeal still upheld the conviction.

R v Taj (2018)

D called the police when he saw a man parked up in Central London whom he believed to have a bomb in his van. The police checked and were happy that this wasn’t the case. Later, D returned to the scene and attacked V with tyre lever. D was charged with attempted murder. D admitted to using drugs and alcohol heavily, but argued that he had genuinely believed V to be a terrorist and that he was protecting himself and others.

Held: D was convicted and the conviction was upheld on appeal. A mistaken belief in the need to use force is not enough if that mistake was made due to voluntary intoxication.

R v Clegg (1995)

D was a soldier working on a checkpoint in Northern Ireland at a time of regular threats and attacks against British soldiers there. D was ordered to stop joyriders. When a car drove quickly towards the checkpoint, the soldiers told the driver to stop but the car carried on. D fired three shots through the windscreen of the car as it approached and a further shot through the back window after the car had passed. The final shot killed a woman in the car.

Held: D was convicted. The initial three shots may have been proportionate to the threat, but the fatal shot was fired after the car had passed the checkpoint so was disproportionate.

R v Oye (2013)

D attacked police officers in a coffee shop and later attacked them in the custody suite. He raised self-defence and insanity, with psychiatrists accepting that he genuinely believed he was being attacked by evil spirits when he carried out the attack.

Held: the Court of Appeal upheld a conviction for affray and s 20 GBH. While D did genuinely believe force was necessary, the second (objective) test for self-defence was not met. So a mental disorder that causes delusions does not lower the bar for the objective test and the level of force is still tested against the beliefs of a reasonable person.

R v Press and Thompson (2013)

The two defendants were both soldiers. They launched an unprovoked attack in a fast-food restaurant and raised self-defence, arguing that their PTSD from military service had given them a genuine – if mistaken – belief that they needed to use force to defend themselves.

Held: as in Oye, the court held that the two defendants were liable for the attack. Their mistaken belief was enough to satisfy the first test for self-defence, but not the second test.

R v Martin (Anthony) (2002)

In a case that drew national media attention, two burglars aged 16 and 30 broke into a farmhouse. D (the farmer) heard noises downstairs and fired a shotgun repeatedly in the direction he thought the noise was coming from. As they were trying to leave the house, the 16-year-old was killed with a shot to the back and the 30-year-old was seriously injured.

Held: D was convicted of murder (later reduced to manslaughter by diminished responsibility). His defence of self-defence failed, but there was public outcry in response to his conviction.

R (Collins) v Secretary of State for Justice (2016)

The claimant had been injured by a householder who put him in a headlock when he was caught trespassing. The CPS did not prosecute the householder on the basis that the force was not grossly disproportionate, so a jury would have to decide the force was reasonable. The claimant sought a judicial review on the basis that the CPS decision was a breach of his human rights.

Held: the Court of Appeal clarified that any householder who uses grossly disproportionate force in self-defence has not acted reasonably, but not using grossly disproportionate force doesn’t necessarily mean that D acted reasonably.

R v Cheeseman (2019)

D was a soldier convicted of s 18 GBH after stabbing a fellow soldier who was in D’s accommodation at the time. V had entered the room as a lawful visitor but became a trespasser after an argument. At trial, the judge held that the householder rules didn’t apply as V had entered the room lawfully, but D appealed on this point of law.

Held: the trial judge made a mistake. What matters for the householder rules is whether D actually believed that V was a trespasser at the time of the violent incident. It doesn’t matter whether or not V entered as a trespasser. However, the conviction was still held to be safe.

R v Magson (2022)

D stabbed her boyfriend to death in the house they both shared during an altercation following a night out. After V pushed her over on the way home, D had tried to stop V entering the house but he had forced entry. D then claimed that she had stabbed V to death with a kitchen knife while he was strangling her in the kitchen. She was convicted of murder and appealed on the basis that the trial judge should have allowed the householder defence.

Held: the Court of Appeal dismissed her appeal. D had not raised the issue that she believed V to be a trespasser at trial. The Court of Appeal also held that the jury obviously hadn’t believed D’s story about being strangled, as this would have met the bar for self-defence even without applying the householder rules.

R v Gill (2023)

D was woken up by police using a battering ram on his front door for a drugs raid. D did not know that the intruders were police and the police didn’t state they had a warrant, though one officer did shouot ‘police’ after entering. D picked up a knife and met the officers, stabbing one in the arm and immediately dropping the knife afterwards. The trial judge refused to allow the householder rules to be applied (despite the prosecution agreeing they should be) on the basis that Parliament couldn’t have intended to allow a householder to defend themselves more forcefully as a result of other serious criminal activity (the drugs offences).

Held: the Court of Appeal quashed the conviction and ordered a retrial. What matters is whether D did honestly believe that V was a trespasser.

Teaching and revision resources on necessity defences

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Duress

R v Howe (1987)

D took part in a group attack on a man who died as a result, and then D separately tortured and strangled another victim. D argued duress, claiming that he only took part because of threats made against him.

Held: the House of Lords ruled that the defence was not available. “I do not at all accept in relation to the defence of murder that it is either good morals, good policy or good law to suggest that the ordinary man of reasonable fortitude is not to be supposed to be capable of heroism if he is asked to take an innocent life rather than sacrifice his own.”

R v Wilson (2007)

D was a 13-year-old boy. During a dispute with a neighbour, D’s father asked D to get a weapon with which he could attack her. D’s father killed the neighbour and D was charged with murder for his part in the killing. D argued that his father was a violent man and he was frightened of what would happen to him if he didn’t get the weapon.

Held: the Court of Appeal held that the rule from Howe that duress is not available to murder also applies to child defendants, so D’s defence failed.

R v Gotts (1992)

D was a 16-year-old boy whose father threatened to shoot him if he did not kill his mother. D stabbed his mother, but she survived the attack. D was charged with attempted murder. At trial, the judge ruled that duress was not available for a charge of attempted murder, so D changed his plea to guilty but later appealed the conviction.

Held: D’s conviction was upheld. The court followed Howe to hold that duress is not available for a charge of attempted murder.

R v Hasan (2005)

D associated himself with a violent drug dealer who threatened D’s family if he did not burgle a large amount of money from a house. D broke into the house armed with a knife and tried to get into the safe, but failed to do so. D was charged with aggravated burglary and argued a defence of duress.

Held: D was convicted and his conviction was upheld by the House of Lords. In the House of Lords, Lord Bingham took the opportunity to clarify the requirements of the modern defence of duress.

D must have reasonably believed there was a threat to cause death or serious injury
The threat must have been against D or their immediate family or someone close to D
Whether D reacted to the threats reasonably is tested objectively
The threats must have related directly to the crime committed by D
There must have been no evasive action D could have taken
D cannot use the defence if they voluntarily laid themselves open to the threats

R v Valderrama-Vega (1985)

D was a former police officer arrested at Gatwick Airport carrying 2kg of cocaine after landing from Colombia. He claimed that a mafia gang had threatened to kill him, to ruin him financially and to reveal his homosexuality. At trial, the judge ruled that duress could only work as a defence if the death threats were the sole reason for him carrying the cocaine, but D appealed.

Held: the Court of Appeal quashed the conviction. As long as there is some threat of death or serious injury, the cumulative effect of all the threats could be taken into account.

R v Graham (1982)

D was a gay man who lived with his wife and his male partner. D’s partner was violent and bullied both D and his wife. One night, D and his partner drank heavily and jointly killed D’s wife. D argued that he had only taken part because of his fear of his partner, which was made worse by D’s diagnosed anxiety and his drunkenness. The trial judge refused to allow D’s state of mind to be taken into account for the duress defence and D appealed.

Held: D’s conviction was upheld. D’s response to the threat is tested objectively according to whether a person of reasonable firmness would have responded in a similar way. D’s voluntary intoxication was not to be taken into account.

R v Bowen (1996)

D was a grown man with an IQ of 68 and a child’s reading age. He obtained a range of goods worth £20,000 by agreeing to credit deals but then cancelling repayments. The goods were then sold for profit. D told police that two men had threatened to petrol bomb his house and attack his family if he didn’t obtain the goods.

Held: the trial judge held that D’s vulnerability was irrelevant in judging his response to the threats made against him and D was convicted. On appeal, the conviction was upheld. The court held that age, pregnancy, serious disability, recognised mental illness and gender may be taken into account, but low intelligence could not.

R v Cole (1994)

D owed someone money, and had been hit with a baseball bat in order to get him to repay. There were further threats of violence against D, his girlfriend and their child. Not having the money to repay, D robbed two building societies. D argued that he had committed the robberies under duress.

Held: the defence failed. The threats were to repay the money, not to commit the specific crimes of robbing the building societies. The threat must relate directly to the crime committed.

R v Gill (1963)

D and his wife were threatened with violence if they did not steal a lorry, but was left alone for a period of time before the lorry needed to be stolen. D raised a defence of duress, but the prosecution argued that being left alone gave D the opportunity to take evasive action instead of committing the crime.

Held: D was convicted. Being left alone gave D a “safe avenue of escape” – i.e. he could have called the police to protect him against the threat. The possibility of evasive action meant the defence of duress failed.

Moss v The King (Bahamas) (2023)

D was charged and convicted of conspiracy to murder, after arguing in court she had only taken part under duress. D appealed, partly on the basis that she had genuinely believed there was no evasive action she could have taken. One of the questions for the Privy Council was whether the test relating to evasive action is objective or subjective.

Held: the Privy Council held that the possibility of evasive action is tested both objectively and subjectively. The belief that there was no evasive action must be genuinely held and must be reasonable.

R v Hudson and Taylor (1971)

The two defendants were teenage girls who lied in court by saying they couldn’t identify someone in the courtroom. They admitted to lying, but raised the defence of duress to their charges for perjury because they had been threatened if they identified the person. The trial judge held that duress was not available because, in court, there was no immediate threat to them and because they could identify the person and then seek police protection. The defence argued that the two girls had no realistic faith in the police to protect them.

Held: the Court of Appeal ruled that the trial judge was wrong not to allow the defence. The threat must be ‘present’ at the time of the offence, but doesn’t need to be immediately actionable. The Court of Appeal also agreed that it was up to the jury to decide whether the girls’ lack of faith in the police to protect them was both genuine and reasonable.

R v Batchelor (2013)

Over a period of two and a half years, D submitted false invoices to obtain VAT refunds from the tax office worth nearly £700,000. D argued he did so under duress and that he genuinely didn’t believe there was an avenue of escape, but the trial judge refused to allow the defence to go to the jury because there was evasive action D could have taken.

Held: the Court of Appeal upheld D’s conviction. Despite D believing there was no evasive action, the prolonged period of two and a half years meant this belief was not reasonable.

R v Sharp (1987)

D voluntarily joined an armed gang of robbers. D claimed that, when the gang went to rob a post office, he attempted to leave before the robbery took place. However, the gang leaders pointed a gun at his head and threatened to kill him if he left. D was convicted and appealed.

Held: “Where a person has voluntarily, and with knowledge of its nature, joined a criminal organization or gang which he knew might bring pressure on him to commit an offence and was an active member when he was put under such pressure, he cannot avail himself of the defence of duress.”

Teaching and revision resources on necessity defences

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Duress of circumstances

R v Pommell (1995)

D was found in bed at 8am in possession of a gun without a licence. He said he had taken it from a friend at 1am who said he was going to kill someone with it. D told police he had been planning to take the gun to them later in the day. Charged with firearms offences, D argued duress of circumstances, that he had no choice to possess the gun in order to prevent the killing.

Held: the trial judge ruled out the defence because D did not act straight away to take the gun to the police. The conviction was quashed by the Court of Appeal, which held that the defence was still available as long as D acted to return the gun as soon as reasonable. The Court of Appeal also ruled that duress of circumstances is available as a defence to all offences except murder and attempted murder.

R v Abdul-Hussain (1999)

The two defendants were Shia Muslims from Iraq who fled to Sudan through fear of persecution and execution in Iraq. In Sudan, they had their passports confiscated and feared they were going to be returned to Iraq. They boarded a plane to Jordan, which they then hijacked and forced the plane to land in London. They were charged with hijacking but pleaded duress of circumstances.

Held: the trial judge held that there was no defence because the danger was not ‘close and immediate’ and did not create a ‘virtually spontaneous reaction’ in the defendants. The Court of Appeal quashed their convictions, holding that the threat needed to be hanging over them but did not need to be immediate. The Court of Appeal summarised the requirements of duress of circumstances:

There must be imminent peril of death or serious injury to D or someone D has responsibility for
The peril must be operating on D’s mind at the moment they commit the crime so much that it overbears their will. This is decided by the jury and is tested based on D’s knowledge and beliefs at the time
There is no need for the threat to be immediately actionable
There must be no other avenue of escape available to D.

R v Cairns (1999)

D was in his car when V threw himself across the bonnet. Some of V’s friends were around the car and D felt threatened, even though V and his friends were actually trying to help D. D drove off with V on the bonnet and, when D braked, V fell under the car and suffered serious injuries. D was convicted at trial and appealed.

Held: D’s conviction was quashed. It didn’t matter whether D’s actions were actually necessary. What mattered was whether D reasonably thought they were necessary.

R v Willer (1986)

D was driving down a narrow road when his car was surrounded by a gang of young people. D knew the only way to get away from them was to drive on the pavement, which he did at 10 miles per hour. D then drove straight to the police station to report the gang, where he was arrested and charged with reckless driving for driving on the pavement.

Held: D was convicted, but the conviction was quashed by the Court of Appeal because the jury should have been allowed to consider duress of circumstances.

R v Conway (1988)

D was driving when two men began running towards the car. His passenger had been shot at several weeks before and thought the two men were those who had shot at him. The passenger told D to drive away, which D did very quickly. D was charged with reckless driving and was convicted at trial.

Held: the Court of Appeal quashed the conviction. The defence of duress of circumstances is available if D was acting to avoid the risk of death or serious injury and this was objectively reasonable.

R v Martin (1989)

D’s wife told D that she would kill herself if D did not drive her son to work. Her son was at risk of losing his job and was running late. D agreed to drive him to work, despite being disqualified from driving. D was convicted at trial of driving while disqualified, but appealed.

Held: D’s conviction was quashed. The threat from D’s wife was directed at a member of D’s family (herself) and his response of driving while disqualified was proportionate to the threat.

Teaching and revision resources on necessity defences

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Consent

R v Slingsby (1995)

D was having sex with V when a signet ring he was wearing caused her minor cuts. These cuts later became infected and V died as a result of the infection. D was charged with unlawful act manslaughter with assault and s 47 as the unlawful acts that led to V’s death. He argued a defence of consent on the basis that V had consented to the act.

Held: the defence was successful and D was acquitted. Assault and battery involve fear or application of unlawful force. If the force is consented to, there is no assault or battery.

Collins v Wilcock (1984)

Held: “Everyone is protected, not only against physical injury, but against any form of physical molestation. A broader exception has been created to allow for the exigencies [needs] of everyday life. Generally speaking consent is a defence to battery; and most of the physical contacts of ordinary life are not actionable because they are impliedly consented to by all who move in society and so expose themselves to the risk of bodily contact... Although such cases are regarded as examples of implied consent, it is more common nowadays to treat them as falling within a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of daily life… In each case, the test must be whether the physical contact so persisted that it has in the circumstances gone beyond generally acceptable standards of conduct; and the answer to that question will depend upon the facts of the particular case.”

Marland v DPP (2023)

R v Barnes (2004)

D was playing football when he made a slide tackle against an opponent, causing a serious leg injury. D admitted that it was a hard tackle, but argued it was a fair tackle and that the harm had been accidental. D argued that the sporting context meant there was consent.

Held: despite the serious harm, the Court of Appeal held that there was a valid defence of consent. Taking into account the type of sport, the level it was played at and D’s lack of intention, it was held that this fell within an exceptional circumstance in which the injury could be consented to. In order for the consent to be invalid, the tackle would have to go significantly beyond what is allowed by the rules of the game.

R v BM (2018)

D was a professional tattooist who was asked by a customer to remove their ear and nipple and to divide their tongue into two. D was charged with s 18 (wounding with intent to do GBH) and was convicted, despite raising a defence of consent. D appealed.

Held: the Court of Appeal upheld the conviction. Even though body modification is a special circumstance allowing the consent to some harm, the harm inflicted was so extreme that it could not be consented to.

R v Donovan (1934)

D and V agreed to have sex, including the use of a cane for sexual gratification. D caned V, causing bruising that amounted to ABH. D was charged with indecent assault and common assault, but raised a defence of consent because V had knowingly agreed to being caned.

Held: while consent can avoid a conviction for assault and battery, offences in which ABH or worse has been intentionally caused cannot be consented to unless they are carried out in certain special circumstances. Sex is not a special circumstance.

s 71 Domestic Abuse Act 2021

(1) This section applies for the purposes of determining whether a person (“D”) who inflicts serious harm on another person (“V”) is guilty of a relevant offence.

(2) It is not a defence that V consented to the infliction of the serious harm for the purposes of obtaining sexual gratification (but see subsection (4)).

(3) In this section—

“relevant offence” means an offence under section 18, 20 or 47 of the Offences Against the Person Act 1861 (“the 1861 Act”);

“serious harm” means—

(a) grievous bodily harm, within the meaning of section 18 of the 1861 Act,

(b) wounding, within the meaning of that section, or

(4) Subsection (2) does not apply in the case of an offence under section 20 or 47 of the 1861 Act where—

(a) the serious harm consists of, or is a result of, the infection of V with a sexually transmitted infection in the course of sexual activity, and

(b) V consented to the sexual activity in the knowledge or belief that D had the sexually transmitted infection.

R v Tabassum (2000)

D pretended to have medical qualifications in order to get women to consent to him doing breast examinations on them. He was convicted of indecent assault, but appealed on the basis that the victims had consented to being examined.

Held: the consent was not real. It had only been given on the basis of his fraudulent claim to be medically qualified, which meant the consent was not valid.

R v Melin (2019)

D twice injected two women with what he said was Botox. In both cases, the women suffered serious harm after the second injection. D had also lied to the women about being medically qualified, which he was not. D was convicted under s 20 OAPA.

Held: on appeal, one of the convictions was quashed because there was no evidence that D’s lie about being medically qualified had actually caused the woman to agree to the procedure. However, there was such evidence for the other woman, and D’s conviction for GBH against her was upheld.

R v Richardson (1998)

D was a dentist who had been suspended by the General Dental Council. Six of her patients brought complaints after they discovered she had been suspended, saying that they would not have consented to procedures had they known about the suspension. D was charged with six counts of s 47 ABH.

Held: the Court of Appeal held that the patients’ consent was valid. A fraudulent statement only voids consent if it relates to the nature of the act or the identity of the person performing it. D’s suspension was not held to be part of her identity.

R v Olugboja (1982)

D met two women at a club and offered to take them home, instead taking them to his friend’s house. When the women refused to go inside, D and his friend followed them as they walked away. D then took one of the women inside the house and told her they would have sex. The woman told D to leave her alone, but complied with his demand for sex.

Held: the woman’s compliance did not amount to consent and D was liable for sexual assault. Consent that is obtained by force or the threat of force is not real consent.

Burrell v Harmer (1967)

D tattooed two boys – one aged 12 and one aged 13. The boys had told D that they consented to the tattoos, but D was charged under OAPA 1861 with s 47 ABH.

Held: the boys’ consent was not real because they were too young to appreciate the nature of what was going to be done to them.

R v Dica (2004)

D had unprotected sex with two women. D knew that he had HIV, but didn’t tell this to either woman. Both women were infected with HIV. D was convicted under s 20 and appealed on the basis that both women consented to have sex with him and knew the general risk of sexually transmitted disease.

Held: the Court of Appeal quashed the conviction and ordered a retrial, holding that the women consented to unprotected sex and had therefore taken the risk of infection. However, it was held that consent to sex is not the same as consent to being infected, given that the defendant knew he had HIV and didn’t tell the women.

R v Jones (1986)

Six defendants were convicted for s 20 GBH after giving “the bumps” to two other boys. The six boys had intended to catch the boys after throwing them in the air, but they failed to do so and the two boys suffered serious injuries. The trial judge refused to allow consent to be put to the jury.

Held: on appeal, the convictions were quashed. Where there is genuinely no intention to cause harm, a mistaken belief that the victim consented to the activity can create a valid defence.

Teaching and revision resources on the consent defence