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Jonathan Herring
Palgrave Law Masters
Criminal Law
Palgrave Law Masters
Third edition
Jonathan Herring
Fellow in Law
Exeter College, Oxford
ISBN 0–333–98770–5
10 9 8 7 6 5 4 3 2 1
11 10 09 08 07 06 05 04 03 02
Contents
5 Causation 87
5.1 The Nature of Causation 87
5.2 The Guiding Rule of Causation 89
5.3 ‘But for’ Causation 89
5.4 Novus Actus Interveniens 90
5.5 The Relevance of Mens Rea in Questions of Causation 98
5.6 Reform of Causation 99
Hot Topic: The Suicidal Rape Victim 99
Summary 100
Case Notes 101
Further Reading 103
7 Assaults 127
7.1 Common Law and Statutory Assaults 127
7.2 Common Assault and Battery 127
7.3 Assault Occasioning Actual Bodily Harm 132
7.4 Malicious Wounding 133
7.5 Wounding with Intent 136
7.6 Maliciously Administering Poison 137
7.7 Consent 140
7.8 Chastisement of Children 146
7.9 Assault with Intent to Rob 146
7.10 Assault with Intent to Resist Arrest 147
7.11 Assault with Intent to Rape 147
7.12 Assaulting, Resisting and Wilfully Obstructing a Police Constable 147
7.13 Protection from Harassment Act 1997 149
7.14 Racially Aggravated Assaults 154
7.15 Reform of Offences Against the Person 156
Hot Topic: The Limits of Preventing Harassment 157
Summary 158
Case Notes 160
Further Reading 163
9 Murder 184
9.1 Homicide 184
9.2 The Actus Reus of Murder 186
9.3 The Mens Rea of Murder 188
9.4 Intention in Murder 191
9.5 The Relevance of the Mandatory Life Sentence 192
Hot Topic: The Legal Status of the Unborn Child 193
Summary 195
Case Notes 195
Further Reading 198
10 Manslaughter 199
10.1 Distinguishing Voluntary and Involuntary Manslaughter 199
10.2 Constructive Manslaughter 200
10.3 Gross Negligence Manslaughter 204
10.4 Reckless Manslaughter 206
10.5 Killing while Driving 207
10.6 Criticisms of and Reform of Involuntary Manslaughter 208
10.7 Voluntary Manslaughter 210
10.8 Provocation 211
10.9 Diminished Responsibility 218
10.10 Suicide Pact 221
10.11 Infanticide 221
Hot Topic: Battered Women 222
Summary 225
Case Notes 226
Further Reading 229
11 Theft 233
11.1 Property Offences 233
11.2 The Definition of Theft 234
11.3 Appropriation 235
11.4 Property 243
11.5 Belonging to Another 246
11.6 Dishonesty 253
11.7 lntention of Permanently Depriving 258
Hot Topic: Stealing Bodies 264
Summary 265
Case Notes 266
Further Reading 269
Contents ix
17 Accessories 409
17.1 What is an Accessory? 409
17.2 Principals and the Doctrine of Innocent Agency 410
17.3 Aiding, Abetting, Counselling and Procuring 412
17.4 The Mens Rea of Being an Accomplice 415
17.5 Criticisms of the Law on the Accessorial Mens Rea Requirement 421
17.6 Presence of Accessory 422
17.7 Providing Equipment 423
17.8 Joint Enterprise 424
17.9 Acting Outside the Enterprise 425
17.10 Withdrawal from Enterprise 426
17.11 Interaction between Accomplice Liability and Principal Liability 427
17.12 Victims as Accomplices 428
17.13 Assistance after an Offence 428
17.14 Reforms 429
Hot Topic: Why do we have Liability for Accessories? 430
Summary 432
Case Notes 433
Further Reading 435
Contents xi
Index 483
xii
MARISE CREMONA
xiii
The third edition of this book sees the introduction of several new features.
At the end of each chapter there is a section entitled Hot Topic. This
provides an opportunity for a more in-depth analysis of a subject that is
particularly topical or has received attention from academics in recent
years. As the prospects for a criminal code now seem dim there is no longer
a chapter devoted to it, although it is covered in Chapter 2. The book
includes a chapter specifically on the potential effects of the Human Rights
Act 1998, although references are made throughout the book to that legis-
lation’s potential impact. The new edition has also been thoroughly updated
and many sections have been completely rewritten. The fact that the House
of Lords has produced several important and highly controversial decisions
in the past few years demonstrates that criminal law continues to be a
vibrant, if contentious, subject of legal study.
Although this edition does not bear Marise Cremona’s name her influ-
ence can be seen throughout the book. I have also enjoyed her advice and
support during the preparation for this new edition. I have greatly appreci-
ated the support of the team at Palgrave Macmillan, especially Helen
Buglar and Esther Thackeray. Much of the writing of this book was
witnessed by my daughter Laurel, who patiently played as I typed. I hope
the experience has not harmed her too much. My wife, Kirsten Johnson, has
been, and is, a constant source of love and support.
JONATHAN HERRING
As in the previous editions, cases marked with an asterisk* when they are
first mentioned in the text are discussed in greater detail in the Case Notes
at the end of the relevant chapter.
xiv
Table of Cases
A page number in bold type indicates a Case Note giving a short account of the
facts and decision in respect of the case concerned
B v. DPP [2000] 2 AC 428 11, 12, 72, 107, 109, 110, 112,
113, 122, 206, 208
B and S v. Leathley [1979] Crim LR 314 275
Backshall [1999] 1 Cr App R 35 400
Bailey [1983] 1 WLR 760 49, 54, 374
Bainbridge [1959] 3 All ER 200 413, 423
Baker and Wilkins [1999] 2 Cr App R 335 390, 393, 426
Ball [1989] Crim LR 730 203
Bamborough [1996] Crim LR 744 420
Banks (1873) 12 Cox CC 393 440, 443
Barbera, Messegue and Jabardo v. Spain (1988) 17 EHRR 360 471
Barnard (1837) 7 C&P 784 295
Barratt (1873) 12 Cox CC 393 196
Bateman (1925) 19 Cr App R 8 22
Battams (1979) 1 Cr App R (S) 15 281
Bayley and Easterbrook [1980] Crim LR 503 260
Becerra (1975) 62 Cr App R 212 426
Beckford [1987] 3 WLR 611 362, 378, 477
Bedder [1954] 2 All ER 801 213, 214
Bell [1992] Crim LR 176 396
Bellenie [1980] Crim LR 437 287
Benge (1865) 4 F&F 504 89
Bevan [1987] Crim LR 129 301
Bevans [1988] Crim LR 236 331, 345
Bingham [1991] Crim LR 433 48
Bird [1985] Crim LR 388 363, 364
Blake [1993] Crim LR 586 325, 345, 363
Blake [1997] 1 All ER 963 112
Blakely [1991] Crim LR 763 417, 419, 433
Blaue [1975] 3 All ER 466 96, 97, 100, 101
xvi Criminal Law
Table of Statutes
Actus non facit reum, nisi mens si rea: An act does not make a person
guilty of a crime unless the mind is
also guilty.
Actus reus: The part of the definition of a crim-
inal offence which does not relate
to the defendant’s state of mind.
Bona fide: Good faith.
Causa sine qua non: An event without which a result
would not have occurred.
De minimis: Minimal.
Doli incapax: Being unaware of the difference
between right and wrong and so not
being liable to a criminal convic-
tion.
Intercourse per anum: Anal intercourse.
Intercourse per vaginum: Vaginal intercourse.
Mala in se: A ‘true’ crime (in contrast to a
regulatory offence).
Mala prohibita: A regulatory offence (in contrast to
a ‘true’ crime).
Mens rea: The part of the definition of a crim-
inal offence that relates to the
defendant’s state of mind.
Nolens volens: Not caring.
Novus actus interveniens: An act which breaks the chain of
causation.
Obiter: A comment made by a judge in a
case which is not binding on other
courts.
Per se: In and of itself.
Prima facie: At first glance.
Regina: The Queen.
Rex: The King.
1
PART I
BASIC PRINCIPLES OF CRIMINAL
LIABILITY
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3
Key words
• Culpability – the blameworthiness of the defendant.
• Harm – the wrong done to the victim of a crime.
• Objectivism – a view that states the defendant should be judged by
his conduct.
• Subjectivism – a view that the defendant should be judged on the
basis of his beliefs, intents and knowledge.
The criminal law plays a distinctive role in society, including the following
functions: to deter people from doing acts that harm others or society; to set
out the conditions under which people who have performed such acts will
be punished; and to provide some guidance on the kinds of behaviour that
are seen by society as acceptable. Of course, it is not only the criminal law
that has a role in these areas. For example, deterrence from crime may
occur as a result of pressure from families, friends and communities. But
the criminal law is different from these other pressures. It is the established
state response to crime. This is reflected in the fact that prosecutions under
Introduction to Criminal Law 5
the criminal law are brought on behalf of the state in the name of the Crown
(see Chapter 2.1). Further, the breaking of the criminal law is seen as differ-
ent from the breaking of other kinds of law, in that a breach of the criminal
law involves a degree of official moral censure. To be ordered by a court to
pay damages following a breach of contract (which is not a criminal
offence) does not carry with it the same kind of moral message of stigma
that it would if you had been found guilty of a criminal act and then ordered
to pay a fine. As Professor Ashworth has written, ‘criminal liability is the
strongest formal condemnation that society can inflict’.
The criminal law is not only concerned with the causing of direct harm to
other people: it also outlaws harm to the state, public morals and the envi-
ronment, for example. The criminal law goes further and punishes conduct
that might not cause harm on a given occasion but endangers others (for
example, dangerous driving); attempted crimes; and acts which help other
people commit crimes. There are also a few criminal laws that are mainly
designed to protect people from their own folly. An obvious example is the
law requiring the wearing of seat belts in cars.
It is often argued that the criminal law should seek to punish only
conduct that causes harm to others. Such an argument is in line with the
well-known ‘harm principle’, articulated by J. S. Mill, who stated: ‘the only
purpose for which power can be rightfully exercised over any member of a
civilized community, against his will, is to prevent harm to others’. Some
conduct may be immoral but if it does not harm others or only harms the
actor it is seen as unsuitable for punishment under the criminal law. Its
prohibition is seen as too great an infringement on individuals’ liberty.
Although this principle has been widely accepted, there has been much
dispute over what the term ‘harm’ means. For example, does it cover feel-
ings of outrage some may feel at the conduct of their fellow citizens or
damage to ‘the moral fabric of society’?
The ‘harm principle’ has received support not just from academics, but
6 Criminal Law
also the judiciary. For example, Lord Hobhouse in the recent House of
Lords case of Hinks* stated:
1.4.2 Culpability
2. Lack of capacity
The law may accept that the defendant (although not insane) was at the
relevant time not responsible for her ‘actions’. For example, if the defen-
dant was pushed over and fell into a window breaking it, then the ‘act’ of
falling into the window is not properly seen as the defendant’s act. She was
not acting in a ‘human’ way, as the result of conduct that was (or could
have been) planned and thought about, but fell in the same way that a chair
would have done had it been knocked over. It may well be, however, that
the person who pushed the defendant would be criminally responsible for
the broken window (see Chapter 17.2). Another example of this may be
where the act was that of the defendant but was done under such circum-
stances that he was unable to exercise control over his actions, as when
8 Criminal Law
acting under hypnosis, for example. Here again it was not an act that he
could have controlled. If the defendant could have controlled his actions
but it was difficult for him to do so then this is not properly described as
‘lack of capacity’, but the defendant may be able to rely on a special
defence (see point 4 below).
4. Special defence
Although the defendant had the required mental state, she may claim that
nevertheless she is not to be blamed because she had a particular defence.
These defences arise when the circumstances of the offence lessen or
remove any blame that the defendant would otherwise face. For example,
she was acting in self-defence, or had been threatened with death or serious
injury if she did not commit the crime.
As you can imagine, there are many different theories on how to assess
culpability and some of them have been developed to a high degree of
sophistication. They have been expressed in many different ways and can
only be discussed here in very bare outline. It is not possible to say that one
of them is the ‘right’ theory or that the law clearly follows only one of these
approaches. Indeed each has been influential in the law’s developments and
Introduction to Criminal Law 9
in the writings on criminal law. The three most popular will now be briefly
discussed.
character from the fact that the defendant assaulted someone, but not from
evidence that he is a gossip. Assaulting is prohibited by the criminal law,
gossiping is not. The strength of the theory is its ability to explain the
defences that the criminal law provides. For example, the defence of duress
can be explained because if the defendant commits a theft after he has been
threatened with death, the theft does not lead us to conclude that he has a
bad character. One difficulty with the theory is in explaining why, when
considering the defendant’s bad character, consideration is limited to crim-
inal conduct alone. Another is that the law does not generally accept a
defence of ‘I was acting out of character’.
Here then, Lord Nicholls argues that the common law supports the subjec-
tivist school of thought, although Parliament can pass a statute that creates
an offence which is objectivist.
In fact, overall the law, and indeed most commentators, rejects either of
the extreme forms of objectivism and subjectivism, as outlined above.
What is needed is a middle course to be taken between the two views.
However, there is little agreement where exactly the course should be. Two
areas where the dispute has been particularly fierce will now be mentioned
briefly by way of example, but we will discuss the law’s approach to these
topics in more detail later.
*****
"Elkää enää sitä ajatelko, jalo kuninkaani!" sanoi Åke. "Minä olen
taas terve ja teidän palvelukseenne valmis."
"Ei, Åke! Minä vaadin vain oikeutta enkä armoa ihmisiltä, ja tässä
asiassa ei kenenkään tarvitse odottaa minulta armahdusta.
Tuomitkoon paavi minun ja Grandin välisen asian! Vääryyden
salaisuus saadaan ilmi niin totta kuin oikeutta on olemassa auringon
alla. Jos minä itse ollen rikkonut jossakin, joka kyllä on mahdollista
— niin ehdinhän minä vielä sittenkin ajatella katumusta kun tuomio
langetetaan."
Juuri kun sotilas kuuli drotsin äänen ja aikoi kääntyä, tunsi hän
tikarinpiston selässään ja kaatui maahan tuskallisesti huutaen,
sillaikaa juoksi karkuri hänen ohitseen välkkyvä miekka kädessä ja
hyppäsi venheeseen.
"No mitä loitsuja te siitä luitte, herra drotsi?" kysyi kreivi Henrik.
"Te ette voi oikein hyvin." — —
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