Criminal Law. Text, Cases, and Materials. Janet Loveless. Third Edition UNIVERSITY PRESS

Transcription

1 Criminal Law Text, Cases, and Materials Third Edition Janet Loveless UNIVERSITY PRESS

2 Contents Guide to using the book Guide to the Online Resource Centre this edition Preface Acknowledgements Table cases Table of statutes VI viii x xi xxiv xxv xxxviii 1 Introduction and General Principles 1.1 About this Book Introduction Sequence of Chapters Explanation Law What is Crime? to Others Morality: Harm to Oneself? Politics g Regulatory Offences 1.3 Presumption of Innocence and the Burden of Proof The General Principle Exceptions to the Prosecution Bearing the Burden of Proof Classification of Crimes and Courts Classification of Crimes The Courts The Criminal Trial From Arrest to Trial The Adversarial System The Inquisitorial System Distinction between Criminal and Civil Proceedings Functions of Judge and Jury Sources of the Criminal Law Statute and Common Law The Draft Criminal Code The European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) The Human Rights Act The Criminal Justice System Crime in Britain Today: Public Statistics 2? The Typical Defendant 28

3 17.3 The Typical Victim 28 Diversions from the System: Cautioning, Plea Bargaining 28 The Police Why is there so much Crime? 29 Why do Miscarriages of Justice Happen? Will Recent Reforms Improve the Conviction Rate? Victims v Suspects we Punish? Is there Equality in Punishment? 32 Conclusion 32 Chapter 2 Actus Reus: Acts, Omissions and Causation 36 Si 2.1 Acts 38 does Actus Reus Mean? Coincidence/Correspondence of Actus Reus and Mens Rea 4? 2.2 in Duty Introduction: Acts and Omissions Statutory Offences of Failing to Act in Breach of Duty: Conduct Crimes Common Law Commission by Crimes and the Five Duty Situations Criticisms of Omissions Liability Evaluation Reform 2.3 Causation Introduction Factual Causation? Legal Causation Conclusion Reform 99 Chapter 3 Mens Rea: Intention, Recklessness, Negligence and Gross Negligence 3.1 Intention Introduction Context: Intention and Murder Intention: Ordinary Actions and Result are Desired Legal Meaning: Direct or Purpose The Distinction between Motive and Intention Mercy Killings 3.17 Doctors, Effect Oblique or Indirect Intent: Foresight of a Virtual Certainty The Test for Intention is Subjective: Section 8 Criminal Justice Act 196? Finding Intention from the Evidence Oblique Intention Distinguished from Recklessness: Foresight of a Virtual Certainty v Foresight of Risk Evaluation Reform Transferred Malice

4 3.2 Recklessness Introduction Definitions The Current Legal Definition: Subjective/Advertent Recklessness: The Conscious Taking of an Unjustified Risk Previous Caldwell Recklessness Subjective Recklessness is now Restored Throughout the Criminal Law the House Lords in to Caldwell? How to Distinguish Recklessness from Intention How to Distinguish Recklessness from Negligence 154 Reform Evaluation and Conclusion Negligence and Gross Negligence Negligence Negligent Mistake The Distinction between Negligence and Recklessness Should Negligence be a Basis of Fault? Gross Negligence Reform 164 Chapter 4 Strict, Vicarious and Corporate Liability Strict Liability Introduction Strict v Absolute Liability The Statutory Context: The Presumption of Mens Rea The Exceptions to Mens Rea Reverse-Onus Due Diligence Defences Strict Liability under the ECHR Evaluation: Arguments and against Strict Liability Corporate Liability 199 What is a Corporation? Vicarious Liability Direct Corporate Liability Evaluation 213 Chapter 5 Secondary Participation: Parties to a Crime 21? 5.1 Definition of Parties Conditions for Liability Actus Reus Rea 5.3 The Doctrine Joint Enterprise Definition Where goes beyond the joint enterprise to commit a collateral offence A's offence will betoss P the scope of joint enterprise by a fundamentally different act Criticisms of joint enterprise 255

5 5.4 Liability can be P Liability can be Higher Accessories and Justificatory Defences Defences to Secondary Participation: Withdrawal from a Joint Enterprise Planned There must be Timely, Unequivocal Communication of Withdrawal where Practical and Reasonable Spontaneous Enterprises: Withdrawal without Communication may be Effective Joint Enterprise Going beyond the Agreed Plan Reform of Withdrawal Can Victims be Accessories? 266 Reform 26? Murder 26? 5.8 Evaluation 269 Chapter 6 Homicide 1: Murder Actus Reus Unlawful Killing Killing and Causation A Human Being Under the Queen's Peace The 'Death Within a Year and a Day' Rule No Longer Applies Rea Background: Malice Aforethought Criticisms of Intention Intention to Commit Harm The Sentence for Murder 28? 6.4 Criticism Reform 289 Chapter 7 Homicide 2: Voluntary and Involuntary Manslaughter Voluntary Manslaughter 295 Introduction to Voluntary Manslaughter 295 Diminished Responsibility 296 of Control 310 Suicide Pacts: The Third Partial Defence to Murder Involuntary Unintentional Killings Introduction Manslaughter by Gross Negligence Reckless Manslaughter Unlawful and Dangerous Act (Constructive) Manslaughter 353 Offences Causing Death by Dangerous Driving Death Inconsiderate Driving 370 Infanticide 370 Infant and Child Killing 371

6 Chapter 8 Defences of Incapacity and Mental Conditions Insanity Introduction The Relationship between Insanity, Automatism and Diminished Responsibility Insanity at Trial The Test for Insanity: The M'Naghten Rules Burden of Proof 391 The Verdict and Disposal Provisions Criticisms of Insanity Reform Automatism Introduction Definition Burden of Proof External Causes of Involuntary Action Self-induced Automatism is no Defence Automatism Requires Total Destruction of Voluntary in Driving Cases 402 Criticisms of the Defence Reform Intoxication Introduction Intoxication is not a 'Defence' but a Denial of MR Voluntary Intoxication: The Rule Crimes of Basic and Specific Intent Majewski Dutch Courage Involuntary Intoxication 413 Dangerous Drugs 416 Voluntary Intoxication and Defences: Drunken Mistake 420 Majewski in Common Jurisdictions Reform Infancy 42? The Age Criminal Responsibility: Doli Incapax 42? Criticism: Was ft Right to Abolish the Presumption? 429 Innocent Agents 430 Rape 430 Chapter 9 General Duress and Duress of Circumstances 43? Introduction 43? Test for Duress and Duress of Circumstances Limitations on the Defence: Voluntary Association with Criminals: Ft v Hasan Limitations on the Murder, Attempted Murder and Treason Duress of Circumstances Reform 466

7 9.2 Necessity 46? Introduction 46? The Test for Necessity 46? Medical Cases Non-medical Cases: Self-help and Direct Action 4? Reform Public and Private Defence Introduction The Necessity for Force: A Subjective Test The Degree of Force must be Reasonable Lethal Force and the R Reform Mistake Introduction Relevant Mistakes Mistake and Strict Liability Mistake and Offences of Negligence Irrelevant Mistakes 509 Chapter 10 Non-fatal Offences against the Person Assault (referred 516 Definition Actus Reus 51? Rea 525 Battery Definition Actus Reus Mens Rea of Assault and Battery 10.3 Aggravated Assaults: Actual Bodily Harm, s4? 529 Definition 529 Actus Reus Rea Malicious Wounding GBH,s Definition 533 Actus Reus Rea 537 Causing Grievous Bodily with S Definition 539 Actus Reus 540 Rea Defences to Assault: Consent The Public Interest 542 'Public Interest Exceptions' where consent can operate a defence to minor harm Consent induced by fraud 554 Capacity to consent 563

8 Defences to Assault: Lawful Chastisement Parents Teachers 565 Racially and Religiously Aggravated Assaults Introduction: Racist Incidents Racial and Religious Aggravated Offences Section 28 Crime and Disorder Act Racial/Religious Hostility 56? Section 28( l)(b): Racial/Religious Motivation Section 28(4): Group' The Protection from Harassment Act 5? Definition Actus Reus Mens Rea Reform Offences Against the Person Consent Chapter 11 Sexual Offences 579 n 11.1 The Sexual Offences Rape Social Context Definition Rape 583 Actus Reus Mens Rea Marital Rape Why is Rape so Controversial? The Justice Gap Rape Theory Assault by Penetration Sexual Assault Section Causing Sexual Activity without Consent 620 Chapter 12 Property Offences Theft Introduction Actus Reus Rea Robbery Introduction Actus Reus Rea Handling Introduction Actus Reus Rea 688

9 Chapter 13 Property Offences 2: Fraud and Making off Without Payment Fraud The Fraud Act Section 2: Fraud by False Representation Section 3: Fraud by Failing to Disclose Information Section 4: Fraud by Abuse of Position Section 11: Obtaining Services Dishonestly Making Without Payment Actus Reus Rea Chapter 14 Property Offences 3 o 14.1 Burglary Introduction Actus Both Offences Rea Aggravated Burglary Blackmail Introduction Actus Reus Rea? Criminal Damage Introduction Actus Reus Rea Racially or Religiously Aggravated Criminal Damage Criminal Damage with Intent or Recklessness as to Endangering Life Arson Chapter 15 Inchoate Offences: Attempt, Conspiracy and Assisting and Encouraging under The Serious Crime Act Attempt Definition Actus Reus Rea Impossibility Reform 15.2 Conspiracy Introduction Actus Reus Impossibility Conspiracy to Defraud Conspiracy to Corrupt Public Morals and Conspiracy to Outrage Public Decency Reform

10 15.3 The Serious Crime Act 200?: Encouragement and Assistance? Introduction? Problems of Incitement Section 44: Intending to Assist or Encourage? Section 45: Assisting or Encouraging Believing an Offence will be Committed? Section 46: Encouraging or Assisting Offences Believing one or more will be Committed? Defences Conclusion?9? n o