CRIMINAL LAW TJ MCINTYRE SEAN Ô TOGHDA

Transcription

1 CRIMINAL LAW TJ MCINTYRE SEAN Ô TOGHDA ROUND HALL THOMSON REUTERS

2 TABLE OF CONTENTS Foreword Preface Table of Cases Table of vii ix xix xxxi CHAPTER 1 GENERAL PRINCIPLES 1 Defining the Criminal Law 1 Background 1 Nature of the criminal law 3 Effect of the distinction 5 The indicia of a criminal offence 6 Administrative penalties 8 Tribunals of inquiry Proceeds of crime legislation 13 Criminal offences under the European Convention on Human Rights 16 Classification of Crimes 20 Felonies, misdemeanours and treason 20 Summary and indictable offences 22 Minor and non-minor offences 25 Serious and non-serious offences 30 Arrestable and non-arrestable offences 32 Fundamental Principles of Criminal Law 35 The presumption of innocence 35 The principle legality 45 CHAPTER 2 MENTAL ELEMENT OF CRIMES 52 Introduction 52 Intention 53 Defining "intention " 53 The problem of intention 54 The English approach to oblique intention 54 The Irish approach to oblique intention 57 The presumption of intention 60 Reform of intention 61 Recklessness 61 Irish approach 62 The approach in England and Wales 64 Criminal Negligence 68 Negligence 68 Strict or Absolute Liablity 68 Introduction 68 Strict liability versus absolute liability 69

3 xii Criminal Law Determining whether an offence is one ofstrict liability 69 The Irish approach v Ireland 71 The constitutional status ofstrict liability offences and CC 73 The Irish approach since CC v Ireland 76 The Doctrine of Transferred Malice 77 CHAPTER 3 ACTION ELEMENT OF CRIMES 81 Introduction 81 Actus Reus as a State of Affairs 81 Actus Reus and Mens Rea must coincide 83 The Actus Reus may be an Omission 84 Duty of parents towards their children 85 Duty voluntarily assumed. 86 Creation of a danger 87 Duty under contract 88 Statutory duties act. 89 Is the distinction artificial? 89 Actus Reus and Causation 90 Break in the chain of actus interveniens 92 Can a victim of crime break the chain of causation by his own actions? 94 CHAPTER 4 HOMICIDE 96 General Principles 96 day-rule 96 Absence of a body 97 Murder 97 Ofsound memory and of the age of discretion 97 killeth 98 Within any county the realm 98 Any reasonable creature in natura 98 Under the King's peace 100 With malice aforethought 100 Either expressed by the party or implied by law 101 So as the party, wounded or hurt, etc. die the wound or hurt, etc. within a year and a day after the same 102 Attempted murder 102 Aggravated 102 Murder the defences 104 Mandatory sentence for murder 104 The distinction 109 Should the mens for murder include an intention to cause serious injury? 112 Should the mens for murder be expanded to include other fault elements? 113 Manslaughter Manslaughter by criminal negligence 115 Manslaughter by criminal and dangerous act 121 Death on the roads 125 Suicide

4 Table of Contents xiii Legality suicide 126 Suicide pacts. 126 Assisted suicide 127 Euthanasia Discontinuation ofmedical treatment 133 Infanticide 136 CHAPTER 5 SEXUAL OFFENCES 141 Rape 141 Actus reus of common law rape 141 Section 4 rape 143 Consent. 144 Consent vitiated by fraud 145 Fraudas to existence or other diseases 146 Consent vitiated by fear 149 Incapacity to give consent 149 Mens of Sexual Offences 149 Honest but unreasonable belief in consent Recklessness as to consent 152 Sexual Assault and Aggravated Sexual Assault 152 assault at common law 153 Incest 155 Incest by a male 156 Incest by a female 156 Punishment incest 156 Reform 156 Sexual Offences Against the Mentally Handicapped Sexual Abuse of Children 160 Statutory carnal knowledge 160 Defilement of a child under the age of 15 years and defilement of a child under the age of 17 years 162 Reckless endangerment ofchildren 164 Child trafficking and pornography 164 Child sex tourism 165 Register sex offenders 165 Human Trafficking 166 CHAPTER 6 OFFENCES AGAINST THE PERSON 167 Background 167 Assault 167 Consent. Corporal punishment 168 Force 169 Immediacy 169 Causes another to believe Can words alone amount to an assault? 170 Indirect use force 171 Punishment 171 Assault Causing Harm 171 Punishment 172 Causing Serious Harm 172

5 xiv Criminal Law Is consent a defence to causing serious harm? 173 Punishment 176 Threats to Kill or Cause Serious Harm 176 Punishment 177 Syringe Attacks And Related Offences 177 Punishment 178 Possession ofsyringes 178 Coercion 179 Punishment 179 Harassment 179 Mens rea 180 Persistently 181 Lawful authority or reasonable excuse 182 Non-contact orders 182 Punishment 183 Demands for Payment of Debts 183 Poisoning 183 Endangerment 184 Endangering Traffic 186 False Imprisonment 187 Child Abduction 188 Assault with Intent to Cause Bodily Harm or Commit an Indictable Offence 189 Assault of Certain Classes of Workers 189 Blackmail 190 CHAPTER 7 OFFENCES AGAINST PROPERTY 192 Criminal Justice (Theft and Fraud Offences) Act Introduction 192 Theft 192 Background 192 Dishonestly: without a claim of right made in good faith Intention to temporarily or permanently deprive 195 Actus reus theft 195 Fraud Offences 197 Background 197 Making gain or causing a loss by deception 198 Obtaining services by deception 199 Making off payment 199 Unlawful of a computer 200 False accounting 201 Suppression, etc. documents 201 Handling stolen property 201 Possession of stolen property 202 Withholding information regarding stolen property 203 Burglary 203 Trespass 204 Entering a building of a building 206 Burglary: the mental element 208 Aggravated burglary 209 Robbery 211

6 Table of Contents xv Possession of Certain Articles 212 Forgery and Counterfeiting Offences 212 Arson and Criminal Damage 213 Defence of lawful excuse 214 Damaging property 216 Damaging property with intent to endanger life or recklessness as to whether life would be endangered 216 Damaging property with intent to defraud. 217 Arson Threats to damage property 218 Possessing any thing with intent to damage property Unauthorised accessing of data 218 CHAPTER 8 OFFENCES AGAINST THE ADMINISTRATION OF JUSTICE 220 Perjury 220 On oath or affirmation 220 Before a competent court or authority in the course of ajudicial proceeding 221 Material to the matter in question 221 Which to the knowledge such person is false, or which, whether true orfalse, he does not believe to be true, or as to which he knows himself to be ignorant 221 Case law 221 Reform 222 Attempting to Pervert the Course of Justice 222 Contempt of Court 223 Civ/7 versus criminal contempt. 224 Types of criminal contempt 226 Scandalising the court 226 Mens rea and criminal contempt Procedure 232 Reform of the law of contempt of court 234 CHAPTER 9 PUBLIC ORDER OFFENCES 236 Core Offences Relating to Public Order 236 Definition of 236 Intoxication in a public place 237 Offensive conduct in a public place 238 Offence of threatening, abusive or insulting behaviour in a public place 239 Offence of breach of the peace contrary to common law 242 Display ofmaterial which is threatening, abusive, insulting or obscene 243 Offence failure to comply with direction of member of An Garda Siochana 244 Obstruction offences 246 Begging Offences 247 Background 247 Offence of begging 248

7 xvi Criminal Law Offence failure to comply with a Garda direction to desist from begging 249 Offences related to organised begging 249 Trespass Offences 250 Criminal trespass 250 Offence of entering a building or curtilage with intent to commit an offence 252 of trespass on a building or curtilage causing fear in another person 253 Offences relating to entering and occupying land without consent 254 Violent Disorder and Affray 255 Riot 255 Violent disorder 256 Affray 257 CHAPTER 10 DEFENCES SPECIFIC TO MURDER 260 Introduction 260 Diminished Responsibility 260 Provocation 261 Introduction 261 Historical background 262 The Irish position on provocation: subjective test 263 Immediacy requirement 267 Excessive Self Defence 268 CHAPTER 11 GENERAL DEFENCES 271 Duress 271 Imminence of threats 272 The nature of the 273 Objective or subjective test? 274 Application to murder 274 Membership of a violent organisation 275 Duress and marital coercion 277 Law Reform Commission recommendations 277 Necessity 279 When can necessity be used as a defence? 279 Necessity and murder 281 Lawful Use of Force 283 Defence of the person 283 Protectionfromtrespass to the person; defence of property; prevention of crime 284 Preparation in anticipation of an attack 285 Self-induced self defence 285 Force 286 Criminal Law (Defence and the Dwelling) Act Other defences preserved. 287 Proportionality of response 288 Mistake and self defence 288 Defence and the dwelling 288

8 Table of Contents xvii Intoxication 293 Dutch courage 294 Basic/specific intent 294 Intoxication under Irish law 297 Intoxication by other drugs 299 Involuntary intoxication 299 Law Reform Commission 300 Mistake 300 Consent 302 Infancy 302 Entrapment 304 Traditional approach to entrapment 304 Modern English approach 305 United States approach 305 Influence the European Convention on Human Rights 306 Irish approach 307 Automatism 309 Definition 309 Defence unavailable in cases of voluntary intoxication Externalfactors versus internalfactors Self-induced automatism Loss of control must be 314 Insanity 315 Insanity under Irish 315 Reform of defence of insanity 321 Section 4 of the Criminal Law (Insanity) Act 2006: fitness to be tried 321 Section 5: verdict of not guilty by reason of insanity 323 Section 6: diminished responsibility 323 Procedural aspects 324 Unconstitutionality 326 CHAPTER 12 INCHOATE OFFENCES 328 Introduction 328 Attempt 329 Introduction 329 Actus reus attempt 331 Mens rea of attempt 335 the types of offences that may be attempted 337 Legal impossibility and factual impossibility 338 Abandonment 338 Conspiracy 339 Introduction 339 Actus reus conspiracy: an agreement 339 The object of conspiracy 342 Mens rea of conspiracy 344 Specific offences of conspiracy 345 Impossibility 347 Abandonment 348 Incitement 348 Introduction 348

9 xviii Criminal Law Actus reus of incitement 350 Mens rea of incitement 351 Impossibility. 353 Abandonment 354 Specific offences of incitement 354 CHAPTER 13 DEGREES OF COMPLICITY IN CRIME 355 Introduction 355 Criminal Act Innocent Agency 358 Elements ofsecondary liability 359 Secondary conduct element 360 Aiding 361 Abetting and counselling 363 Procuring 364 Failure to act or mere presence as an actus reus 365 Secondary mental element 369 The doctrine of common enterprise 373 Victims as participants in crime 378 Withdrawal 379 Assistance after a crime has been committed 380 Withholding information 382 CHAPTER 14 CRIMINAL LIABILITY OF CORPORATIONS 383 Introduction 383 The Identification Mind Theory 384 The Theory 386 Statutory Construction Approach 387 Restrictions on Corporate Liabilty 389 Where the corporation is incapable of committing the particular crime 389 Where the corporation is the victim 390 Where employees act contrary to instructions 390 Punishment of Companies 390 Corporate Manslaughter and Homicide Act 2007 (UK) 391 The Irish Position 392 Common law 392 Law Reform Commission proposals 393 Corporate Manslaughter INDEX 397