LAW IN ACTION

Aspects of the English Legal System

A Revision Guide - Law 03

AQA LAW - Unit 3 - Section A Criminal Law
Section A Criminal Law (Fatal and non-fatal offences
against the person)
Specifications
Section A
Murder
thought).
Voluntary
manslaughter
Involuntary
manslaughter
Non-fatal
offences

Criminal Law (Fatal & non-fatal offences against the person)

Actus reus (including causation), mens rea (malice afore

Defences of provocation and diminished responsibility.

Gross negligence manslaughter, unlawful act manslaughter,
subjective recklessness manslaughter.
Assault, battery, actual bodily harm, wounding and grievous bodily
harm, wounding and grievous bodily harm with intent.

Defences

Insanity, automatism, intoxication, consent, selfdefence/prevention of crime.

Evaluation

Critical evaluation of all of the above (with the exception of

involuntary manslaughter), including consideration of proposals
for reform.

CONTENTS
Contents of Law 03

03

Murder Key Concepts

04 05

Voluntary Manslaughter
The Special Defences
Diminished Responsibility

06 08

Provocation

08 09

Involuntary Manslaughter
Gross Negligence Manslaughter

10

Unlawful Act Manslaughter

11

The General Defences

Insanity
Automatism
Intoxication: voluntary and involuntary
Self-defence & Prevention of crime
The Effect of Mistake
Mistake and Intoxication

12
12 - 14
15 - 16
17
17
17

Table of Offences

18

The Essay Question

20

AQA LAW UNIT 3 - CRIMINAL LAW or CONTRACT

LAW
Written Paper: 1 hour 30 minutes
Weighting: 25% of total of A Level marks
Candidates must answer one three-part question on either
Criminal Law (Offences against the Person) or Contract
Total marks available = 80 (including 5 marks for QWC)
Section A
Murder
aforethought).

Criminal Law (Fatal and non-fatal offences)

Actus reus (including causation), mens rea (malice

Voluntary
manslaughter

Defences of provocation and diminished responsibility.

Involuntary
manslaughter

Gross negligence manslaughter, unlawful act manslaughter,

subjective recklessness manslaughter.

Non-fatal offences
against the person

Assault, battery, actual bodily harm, wounding and grievous bodily

harm, wounding and grievous bodily harm with intent.

Defences

Insanity, automatism, intoxication, consent,

Self-defence/prevention of crime.

Evaluation

Critical evaluation of all of the above (with the exception of

involuntary manslaughter), including consideration of proposals
for reform.

CRIMINAL OFFENCES FATAL

In this unit we are studying criminal offences against the person that end in the death of
the victim. These are called homicides.
Homicide is the unlawful killing of a human being. We are studying three kinds of
homicide: murder, voluntary manslaughter, and involuntary manslaughter.
MURDER Key Concepts
1. Murder is a form of homicide. Homicide is the unlawful killing of a human being.
2. Murder is a common law offence. This means there is no Act of Parliament outlining
the law on murder. Therefore, the law on murder has been developed in the courts over
the years.
3. Murder has been defined as: the unlawful killing of a reasonable person in being
under the Queens Peace with malice aforethought, express or implied.
4. There are two ways in which a person can be found guilty of murder:
(a) If he intends to kill the victim and he succeeds in killing the victim. This is express
malice aforethought.
(b) If he intends to cause grievous bodily harm to the victim, and the grievous bodily
harm causes the death of the victim. This is implied malice aforethought.
VICKERS (1957)
5. The actus reus of murder is the death of the victim. In almost all cases the actus reus
is an act, something the defendant did. However, the actus reus can be an omission IF the
defendant had a duty of care towards the victim and breached that duty by
failing/omitting to do something. GIBBINS & PROCTOR (1918)
6. In every case it is necessary to establish the chain of causation. This is done by
employing the BUT FOR test. BUT FOR Pagett (1983) using his girlfriend as a human
shield, she would not have been struck and fatally injured by the police bullets.
7. The chain of causation can be broken by an INTERVENING ACT. But the
intervening act must be independent of the original act, and it must be the substantial,
operating cause of the death or injury. Medical mistreatment is rarely acceptable as an
intervening act, but compare JORDAN (1956) and CHESHIRE (1991).
In Jordan (1956) the use of the wrong antibiotics was accepted as an intervening act in
the death of the victim. In Cheshire (1991) the tracheotomy followed by severe
complications was not accepted as an intervening act because Cheshires injury to the
victim was deemed to be the substantial, operating cause of the victims death.

8. The THIN SKULL rule. The defendant cannot use the defence that he did not know
or could not know that the victim had a special vulnerability that contributed to his/her
death or injury. The defendant must take the victim as he finds him/her. BLAUE (1975).
9. The DOCTRINE OF TRANSFERRED MALICE carries full intention. If the
defendant tried to injury or kill A, but accidentally killed B, then his intention towards
A (specific or basic intent) will carried in full towards B.
10. If the defendant could have foreseen that his conduct was VIRTUALLY CERTAIN
to risk serious injury to or the death of the victim, then that will be taken as evidence of
his intention towards the victim. This is called having FORESIGHT OF
CONSEQUENCES.
In NEDRICK (1986), the defendant must have been able to foresee that by pouring
paraffin through the letter box of a house where people lived, he was virtually certain to
risk serious injury or death to the inhabitants of that house. Therefore, he was guilty of
the murder of the child who died in the fire.
In WOOLLIN (1998), the defendant was not able to foresee that by throwing his son in
the direction of his pram that he was virtually certain to risk the life of or serious injury to
the child, therefore he was not guilty of murder though he was guilty of involuntary
manslaughter.
The test of foresight of consequences is that the risk of injury or death must be virtually
certain.

VOLUNTARY MANSLAUGHTER
THE SPECIAL DEFENCES TO MURDER
1) DIMINISHED RESPONSIBILITY
2) PROVOCATION
3) SUICIDE PACT

THE DEFENCE OF DIMINISHED RESPONSIBILITY

The defence of diminished responsibility was introduced by the Homicide Act 1957 as a
partial defence to the charge of murder. It was introduced because the defence of insanity
was thought to be too narrow. For example, a woman suffering from post-natal
depression, while clearly not insane, might behave in a way wed accept as mentally
abnormal.
Section 2 of the Homicide Act 1957 states: if a person kills while suffering from such an
abnormality of mind as substantially impaired his mental responsibility for acts or
omissions, he will be regarded as suffering from diminished responsibility.
The key legal elements are:
(1) an abnormality of mind that
(2) substantially impaired his mental responsibility for
(3) acts or omissions that caused the death of the victim.
In order to prove diminished responsibility, the defence must prove, on the balance of
probabilities, 3 things:
1) The defendant was suffering from an abnormality of mind;
2) His abnormality of mind had a specific cause, e.g. disease or injury or an internal
cause or retarded development;
3) This abnormality of mind substantially impaired the defendants mental
responsibility for his act or omission.
Diminished responsibility covers a wide range of mental conditions, including depressive
illness, post-natal depression, paranoia, epilepsy, PMT, battered wives syndrome,
personality disorders, Alzheimers disease.

A key authority for diminished responsibility is R v Byrne (1960)(sexual psychopath

strangled victim). This case introduced the concept that abnormality of mind means a
state of mind so different from that of ordinary human beings that the reasonable man
would take it as abnormal. In R v Byrne (1960), the court accepted that Byrnes sexual
psychopathy was an abnormality of mind that substantially impaired the defendants
mental responsibility for his act and the court accepted his defence of diminished
responsibility.
The key legal concept here is: a state of mind so different from that of ordinary human
beings that the reasonable man would take it as abnormal.
DIMINISHED RESPONSIBILITY and INTOXICATION
Imagine that Byrne had been drunk (intoxicated) when he strangled his victim. What the
defence would then have to prove is that Byrnes abnormality of mind was so severe
that he would have killed his victim regardless of his intoxication.
The problem of intoxication can arise if the defendant claiming diminished responsibility
was intoxicated (alcohol or drugs) at the time of the homicide.
There are three possibilities:
1) The defendant was drunk and killed someone. Intoxication will only be a defence
if the intoxication was severe enough that the defendant could not have formed
the necessary mens rea (specific intention) for murder or for a s18 OAPA 1861.
Being intoxicated is regarded as subjectively reckless in itself, and this provides
the necessary mens rea for all offences other than murder or s18 OAPA.
2) The defendant was drunk and killed someone but the defendant already had an
underlying abnormality of mind that was sufficient to substantially impair his
mental responsibility.
3) The defendants abnormality of mind was itself caused by alcohol or drugs. This
is manslaughter BUT ONLY if the court accepts that alcoholism or drug-taking
had already caused a substantial injury to the brain BEFORE the intoxicated
homicide.
A key case is R v Tandy (1989). The defendant strangled her 11-year-old daughter
while drunk. Mrs Tandy, an alcoholic, claimed alcohol had impaired her mind to the
extent that he brain was injured. The court rejected the defence of diminished
responsibility. Courts are very reluctant to accept alcoholism as a form of diminished
responsibility because (a) it is difficult to prove the brain has been damaged, and (b) it
is not in the public interest to have the courts crammed with alcoholics claiming
diminished responsibility following a drunken homicide.

The second key case is Gittens (1984). The defendant suffered from depression and
took medication for this. One night, after drinking heavily and taking several antidepressant pills, he clubbed his wife to death and strangled his step-daughter. The
Court of Appeal substituted voluntary manslaughter for murder on the grounds that
the defendants depression had already established his abnormality of mind and
hence diminished responsibility.

THE DEFENCE OF PROVOCATION

There are three special defences to the charge of murder. These defences are:
provocation, diminished responsibility and suicide pact. These defences were introduced
in the Homicide Act 1957 because it was felt that the charge of murder might be unfair
and harsh in some circumstances. It is important to remember that the special defences
are partial defences; they do not acquit the defendant of the charge but reduce it to
voluntary manslaughter.
One of the key advantages to being convicted of manslaughter rather than murder is that
the judge can avoid imposing the mandatory sentence of life imprisonment. For
manslaughter the sentence is at the judges discretion.
Provocation
Section 3 of the Homicide Act 1957 states: Where there is evidence that the person
charged with murder was provoked (by things done or said or both) the question as to
whether it would make a reasonable man do this is left to the jury.
A wide range of things said or done can constitute provocation. It must be left entirely to
the jury to decide what constitutes provocation. The provocation need not even be
deliberate on the part of the victim. In Doughty (1986), a man killed his 19-day-old child
who would not stop crying. The jury accepted the defence of provocation, and the
charged was reduced to voluntary manslaughter.
R v Duffy (1949) established that for provocation to succeed as a defence there must
have been A sudden and temporary loss of self control, rendering the accused so subject
to passion as to make him or her for the moment not master of his mind. In other words,
the defendant must have been so sorely provoked that he experienced a sudden and
temporary loss of control and became so passionate that he was for a brief time not
master of his own mind. In other words, he saw red and lost it.
Duffy (1949) has been updated and amended by a number of cases. In R v Sara
Thornton (1996) the defendant four years earlier had been found guilty of the murder of
her husband who had mentally and physically abused her for a considerable period of
time. Mrs Thornton finally stabbed him to death and was convicted of murder. However,

four years later, the Court of Appeal established that women often behave quite
differently from men when provoked. Men usually experience a sudden and temporary
loss of control while women often experience a slow burn. In other words, women may
brood for quite a period of time before reacting to provocation. Mrs Thorntons charge
was reduced to voluntary manslaughter in 1996 and she was released.
Therefore, the jury may accept the final act of provocation before the fatal assault was
the last straw in a series of provocative attacks that culminated in the homicide. This is
especially likely in battered wives cases such as Thornton (1996).
The case of R v Ibrams and Gregory (1981) has helped to establish that there must
normally be a sudden and temporary loss of control for the defence of provocation to
succeed. In this case, the defendants were severely provoked by Ms Gregorys exboyfriend; they then hatched a plan which led to the ex-boyfriends unlawful killing.
They were found guilty of murder because there was a lengthy gap between the
provocation and the killing.
The Homicide Act 1957 raised the question as to whether the provocation was sufficient
to make a reasonable man do what the defendant did.
What exactly is a reasonable man?
There are two parts to the reasonable man test:
1) For the purposes of self-control, the level is the power of self-control expected
from a person of similar age and gender as the defendant. The key case here is
Camplin (1978) when the defendant, a 15-year-old boy, killed a man who was
taunting him about his sexual abilities. The court decided that the jury should take
into consideration the reaction that might be expected from a 15-year-old boy
rather than a fully-grown reasonable adult. (the subjective test)
2) The jury must also consider whether the provocation was serious enough to
provoke the act of retaliation from the defendant. In other words, was the violent
reaction of the defendant justified? (the objective test).
In Camplin (1978), the Law Lords made it clear that the jury could take into
consideration any relevant facts about the defendant. The question facing the jury is
whether, in all circumstances of the case, the defendants loss of self-control was
EXCUSABLE, and this will be judged by reference to how a similar person in his/her
position exercising ORDINARY powers of self-control would have behaved.

PROVOCATION - THE SIGNIFICANCE OF HOLLEY (2005)

The significance of Holley (2005) is that alcoholism will NOT be regarded as a
characteristic that can be taken into consideration when provocation is alleged.
This confirms Camplin (1978) that while age and sex can be taken into consideration
when deciding whether the defendant behaved with the ordinary level of control expected
from a reasonable man, alcoholism cannot.
The victims taunt You havent got the guts, is NOT sufficient justification for the
defendants reaction. And the fact that he was an alcoholic could not be taken into
consideration as justifying his sudden and temporary loss of control.
We can see that this is similar to Tandy. The courts do NOT want to allow alcoholism to
become a mitigating factor unless severe brain damage can prove there was an
abnormality of mind (diminished responsibility).
HOLLEY (2005)
The killing took place on 13 April 2000. In the morning the defendant and the deceased
met in St Helier and visited a local public house. They spent an hour drinking heavily and
arguing. He returned to the flat mid-afternoon, and spent the remainder of the afternoon
chopping wood with an axe and drinking lager. The deceased spent the afternoon in a
public house drinking. She returned to the flat at about 5.15 pm. By then the defendant
had drunk about 11 cans and 3 pints of beer or lager. According to the defendant, the
deceased was drunk.
She entered the flat and told him she had just had sex with another man. He picked up the
axe, intending to leave the flat and chop some more wood, when the deceased said "You
haven't got the guts". Whereupon he lifted the axe and struck the deceased seven or eight
times.
The defendant claimed that his alcoholism lowered his resistance to provocation. In other
words, if he were not an alcoholic, he would not have had a sudden loss of control and
struck the victims. However, his attempt to use the defence of provocation was not
successful because their Lordships used to accept alcoholism as a characteristic, such as
age or sex, that could be taken into consideration.

10

INVOLUNTARY MANSLAUGHTER
GROSS NEGLIGENCE MANSLAUGHTER
Gross negligence manslaughter is committed where the defendant owes the victim a duty
of care but breaches that duty in such a negligent/careless way that his negligence leads
to the death of the victim. Gross negligence manslaughter can be committed by an act or
by an omission which itself does not have to be unlawful.
The leading case on gross negligence manslaughter is ADOMAKO (1994) where the
defendant, an anaesthetist, failed to notice an oxygen tube had become disconnected
during an operation. The trial judge directed the jury on gross negligence and they
convicted. The conviction was upheld by the House of Lords.
From Adomako (1994), it appears the elements of GNM are:
1. the defendant owed a duty of care towards the victim;
2. the defendant breached that duty, and the breach caused the death if the victim;
3. the defendants negligence was gross enough to be considered criminal by the
jury.
Duty of care the ordinary principles of negligence in civil law apply; this suggests that
GNM may cover a wide range of situations: doctor and patient; landlord and tenant Singh (1999); family relationships Stone and Dobinson (1977).
Gross negligence the fact that the defendant has been negligent is not enough to
convict him of GNM. The negligence has to be gross enough to be considered criminal
by the jury. In Adomako (1994), the House of Lords stressed it was a matter for the jury.
The jury had to decide whether, having regard to the risk of death involved, the conduct
of the defendant was so bad in all the circumstances as to amount to a criminal act or
omission.
Risk of death It is not clear if the test has to be risk of death but given the seriousness
of the charge of manslaughter, it would seem fair that the test should be a risk of death.
KEY CASES
(1)
(2)
(3)
(4)

Adomako (1994) gross negligence by the anaesthetist

Wacker (2002) 58 out 60 illegal immigrants died in the lorry
Stone and Dobinson (1977) elderly sister allowed to die
Singh (1999) a fault gas fire caused the death of the tenants.

11

UNLAWFUL ACT MANSLAUGHTER

Unlawful act manslaughter, constructive manslaughter, occurs when the defendant has
done a dangerous unlawful act which leads to the death of the victim. The defendant is
liable even though he did not realise that death or injury might occur.
For example, the defendant, a burglar, broke into a house and cracked open the gas meter
to get the money. During the night the gas escaped into the house and fatally poisoned
two sleeping people.
The elements of UAM are:
1. the defendant did an unlawful criminal act;
2. the act was dangerous on an objective test, i.e. any sober and reasonable person
would have recognised the act as dangerous;
3. the act caused the death of the victim;
4. the defendant had the required mens rea for the unlawful act.
5. The defendant must commit an act; an omission is not a sufficient actus reus.
Note:
the unlawful act, e.g. arson, must itself be a criminal offence;
the defendant must commit an act; an omission is not sufficient;
KEY CASES
(1) R v Church (1966) unconscious lover in river any sober and reasonable person
would have realised this was a dangerous act established the reasonable man test
(objective test).
(2) Newbury and Jones (1976) two teenage boys pushed paving stone from bridge
onto passing train, killing a guard Lords agreed the act was objectively dangerous,
unlawful, and resulted in death = unlawful act manslaughter.
(3) Goodfellow (1986) firebombed his own council house to get a new one; wife, son
and second woman died in fire the unlawful act does not have to be aimed at any
person/s in particular.
(4) Dias (2002) - the Court of Appeal quashed the defendants conviction for
manslaughter because although he prepared the syringe of heroin and handed it to the
victim, the victim injected himself. The victim collapsed and died later in hospital.

12

THE GENERAL DEFENCES

Complete Defences to ANY Charge
1. INSANITY
Insanity is based on the idea that the person is suffering from a disease of the mind. Do
not confuse disease of the mind with abnormality of the mind which applies only to
diminished responsibility.
The key test for insanity was laid out in the Macnaughton rules in 1843.
The test states:
It must be clearly proved that, at the time of the committing of the act, the defendant:
1. did not know what he was doing, AND/OR
2. if he did know what he was doing, the did not consider it wrong.
The defendant must prove either he is unfit to plead (because of insanity) or that he was
insane (because of a disease of the mind) at the time of the offence.
The defendant must prove his insanity on the balance of probabilities, not beyond a
reasonable doubt. On the other hand, the prosecution must prove beyond a reasonable
doubt that the defendant was sane at the time of the offence.
2. AUTOMATISM
The defence of automatism will be successful only if the defendant can prove he had no
conscious power over his physical movements and that he was acting as mechanically as
an automaton.
There are two main types of this behaviour:
1. The defendant experienced an uncontrolled muscular reaction. This can be caused
by spasms of the limbs, reflex actions, or convulsions BUT the cause must be
EXTERNAL. It must not be caused by a disease of the mind; thats insanity!
2. The defendant was unconscious when he performed the act, e.g. following a blow
to the head the defendant staggered forward and pushed the victim from the
bridge into the river.
It is up to the defence to prove the defendant was suffering from automatism
at the time of the offence.

13

There are two kinds of automatism.

NON-INSANE AUTOMATISM
Automatism is often called non-insane automatism because the cause must be
EXTERNAL such as a blow to the head or medication that causes a blackout or
uncontrollable muscular reactions. It cannot be caused by an internal cause, a disease of
the mind which would be insanity.
However, the defence may not succeed if the defendant voluntarily took medication,
drugs or alcohol, KNOWING that this might induce a state of automatism; for example, a
diabetic who drank knowing this might induce a blackout. In this case, the prosecution
would try to prove that the defendant had been subjectively reckless.
INSANE AUTOMATISM
If the defendant was insane when he experienced automatism and committed a criminal
act, he will be regarded as insane by the court.
This judgement follows R v Sullivan (1983) when the defendant, an epileptic, inflicted
GBH whilst suffering a fit. The judge was reluctant to find Sullivan not guilty on the
grounds of automatism and ruled that Sullivan was insane. This effectively meant that
epilepsy was a disease of the mind.
Therefore, a range of disorders such a diabetes, sleep-walking and epilepsy are now
treated as forms of insanity as far as the court is concerned.
If this seems harsh, consider this scenario. The defendant sought to murder his wife. For
three months before the homicide, he pretended to be sleep-walking on several occasions.
Having established himself as a sleep-walker, he strangled his wife while sleep-walking.
If sleep-walking is accepted as automatism, the defendant will be pronounced not guilty
and walk free from the court. However, if he is considered insane not guilty by reason
of insanity sentence will be at the discretion of the judge.
THREE KEY CASES for INSANE AUTOMATISM
In SULLIVAN (1983), the House of Lords was asked to decide whether epilepsy came
within the rules of insanity. Sullivan, who suffered from epilepsy, had injured a friend
during an attack of epilepsy. The House of Lords ruled that the source of the disease was
irrelevant. The disease can be any part of the body provided it has an effect, permanent or
transient, on the mind. This included epilepsy.

14

In HENNESSY (1989), high blood-sugar levels caused by diabetes were classed as

insanity because the levels affected the mind. Hennessy took a car without consent and
drove while disqualified. He had no recollection of taking or driving the car. The disease
of diabetes was affecting his mind, and so comes within the definition of insanity.
In BURGESS (1991), it was decided that some instances of sleep-walking were also
within the legal definition of insanity. The defendant and his girlfriend had been watching
videos. They fell asleep and in his sleep Burgess attacked his girlfriend. A doctor at the
trial gave evidence that the defendants sleep-walking was due to an internal cause: a
sleep disorder. The judge ruled that this was evidence of insanity and the defendant was
found not guilty by reason of insanity.
However, if the defendants sleep-walking had been due to an external cause such as a
blow to the head, the defence of insanity would not be available, but the defence of
automatism might.

15

3. INTOXICATION
Intoxication may be caused by alcohol, drugs or other substances such as glue-sniffing.
Intoxication does not provide a defence as such but is relevant as to whether or not the
defendant has the required mens rea for the offence. If he does not have the required
mens rea because of his intoxicated state he may not be guilty.
Whether the defendant is guilty or not depends on:
1. whether the intoxication was voluntary or involuntary; and
2. whether the offence charged is one of specific or basic intent.
Specific intent offences are generally those offences that require specific intention for
their mens rea. For our purposes, specific intent offences are murder and s18 OAPA.
Therefore, if the defendant was so drunk/intoxicated that he could not have formed the
specific intent, the mens rea, for murder or for s18 (OAPA 1861), he cannot be found
guilty of these offences.
Basic intent (subjective recklessness) offences are generally those for which recklessness
is sufficient for the mens rea manslaughter, ss20 and 47, common assault (assault and
battery). The courts regard becoming intoxicated on a voluntary basis as reckless
behaviour and this constitutes the mens rea for basic intent offences.
Voluntary intoxication is where the defendant has chosen to take the intoxicating
substance, e.g. alcohol, illegal drugs, glue-sniffing. It can also occur where the defendant
knows that the effect of a prescribed drug will be to make him intoxicated.
The key case is: MAJEWSKI (1977)
The defendant had taken both drugs and alcohol. In a very intoxicated state he then
attacked people in a public house including the police officers who tried to arrest him. He
was convicted of three offences of assault occasioning actual bodily harm (s47 OAPA)
and three of assaulting a police officer in the execution of his duty.
The House of Lords upheld all these convictions; voluntary intoxication is not a defence
where the offence charged is one of basic intent. This is because becoming voluntarily
intoxicated is considered a reckless course of conduct, and recklessness is enough to
constitute the necessary mens rea.

16

Voluntary intoxication and specific intent offences

In SHEEHAN and MOORE (1975), the defendants were very drunk when they threw
petrol over a tramp and set fire to him. They were too drunk to have formed any specific
intent to kill or cause grievous bodily harm. It was held that because they did not have the
mens rea for murder, their intoxication was a defence to that offence. However, they were
found guilty of manslaughter as that is a basic intent offence.
Where the defendant has the necessary mens rea despite his intoxicated state, then he is
guilty of the offence. The intoxication does not provide a defence. A drunken intent is
still an intent. In GALLAGHER (1963), the defendant decided to kill his wife. He
bought a knife to do the killing and also a bottle of whisky. He drank a large amount of
whisky before killing his wife. His conviction for murder was upheld.
Involuntary intoxication
Involuntary intoxication covers situations where the defendant did not know he was
taking an intoxicating substance. For example, the defendants soft drink was laced with
alcohol or drugs. It also covers situations where prescribed drugs have the unexpected
effect of making the defendant intoxicated.
The test is: did the defendant have the necessary mens rea when he committed the
offence? If he did, he will be guilty. The involuntary intoxication will not provide a
defence. This is the case even though the defendant would not have committed the
offence without the intoxication lowering his resistance to committing the offence. This
was decided in KINGSTON (1994) The Lords held that if a defendant has formed the
mens rea for an offence, then involuntary intoxication is not a defence.

17

4. SELF-DEFENCE & PREVENTION OF CRIME

Self-defence can be used for all crimes and can be used for defending oneself or others.
The rules are:

Only reasonable, not excessive force, must be used.

The force used must be proportionate to the attack.
The danger must be present and immediate, not passed.
If the force is used as revenge or retaliation then there is no defence.

Key cases:
R v Clegg (1995) fired rifle after the danger had passed.
R v Martin (2000) used excessive force in defence of property.
Reasonable force may also be used in the prevention of a crime,
and in arresting an offender, and in the defence of property.
5. The Effect of MISTAKE
A defendant may use the defence of mistake, if
1) The defendant did not have the necessary mens rea for the offence;
2) The defendant could have relied on another defence if the mistaken fact were true,
e.g. the defendant shot the victim believing the victim was about to shoot him.
The jury will take all the circumstances into account in deciding whether the mistake was
genuine, e.g. in Morgan (1975) the jury refused to believe the victim had consented to
sexual intercourse.
MISTAKE and INTOXICATION
Intoxication can be used to negate the mens rea of offences (murder and s18 GBH with
intent) that require specific intent.
However, crimes of basic intent (subjective recklessness) can be committed, and the
defendant cannot use the defence of intoxication to support the defence of mistake.
Key Case: in R v OGrady (1987) the defendant, who had been drinking heavily, woke
up and hit his friend, who was hitting him, with a heavy ashtray, killing him. The court
found him guilty of manslaughter rather than murder because he was too drunk to have
formed the required mens rea of specific intent.

18

OAPA (Offences against the Person 1861) - CJA (Criminal Justice Act)
CLO (Common Law Offence: murder) - HA (Homicide Act 1957)
Offence
Murder CLO

Actus reus
Unlawful
killing

Consequence
Death

Voluntary
manslaughter
HA1957
Involuntary
manslaughter
HA 1957

Unlawful
killing

Death

Unlawful act
or gross
negligence

Assault s39
CJA

Maliciously
wounding or
inflicting GBH
s20 OAPA
1861

Fear of
immediate
unlawful
violence
Application of
unlawful
violence, even
touching
ABH (e.g.
bruising);
nervous shock
and
psychiatric
harm
Direct or
indirect act or
omission; no
need to prove
assault

Wounding or
causing GBH
with intent or
resist arrest s18
OAPA 1861

A direct or
indirect act or
omission that
causes the
victims injury

Battery s39
CJA
Assault
occasioning
ABH s47
OAPA 1861

Mens rea
malice
aforethought,
express or
implied
Three special
defences

Sentence
Mandatory life
sentence

Death

Intention to
commit
unlawful act
breach of duty
of care

At judges
discretion

No injury
required

Intention /
subjective
recklessness

6 months or
5000 or both

No injury
required

Intention /
subjective
recklessness

6 months or
5000 or both

Assault i.e. an
assault or
battery

Intention /
subjective
recklessness

triable either
way
maximum is 5
years

Wound, cutting
of whole skin,
or GBH, really
serious harm;
psychiatric
harm.
A wound or
GBH (as above)

Intention or
subjective
recklessness
some injury
(though not
serious)
Specific intent
to cause GBH,
or resist or
prevent arrest,
plus
recklessness.

triable either
way
maximum 5
years

At judges
discretion

Must be tried on
indictment;
maximum life
imprisonment

19

THE ESSAY
In the examination you are required to write an essay in which you critically consider the
strengths and weaknesses of some aspect of the law on criminal offences against the
person (with the exception of involuntary manslaughter). In your answer you will be
expected to consider any appropriate suggestions for reforms in the area you choose to
discuss.
The following essays are not designed to give you the complete answer to the question.
Their aim is to start you thinking and discussing the issues raised by these questions.
Remember, too, that a substantial essay should include not only the names of appropriate
cases and authorities but some description of these cases and why they are relevant in
your answer.

1. What criticisms would you make of the current law on

non-fatal offences
against the person? Consider also some of the proposed
reforms of the
current law.
Considering the Offences against the Person Act (1861) was
drafted about 150 years ago, it is hardly surprising that we
find some of its language obscure, archaic and sometimes
misleading. For example, section 20 of the Act uses the
phrase malicious wounding.
The word malicious is misleading because the word
malicious suggests that a person specifically intends to do
some sort of harm to another person. For example, the
offence of murder requires specific intent, which can be
either express or implied malice aforethought. It makes
sense to say that murder is always malicious.
On the other hand, the mens rea of s20 OAPA (19861) can
be either recklessness or specific intent. Therefore, using
the term malicious wounding and then saying the mens
rea of the defendant was merely reckless is a contradiction
of terms. In other words, the defendant cannot be both
malicious and reckless at the same time.

20

Secondly, the Law Commission points out that the mythical

man in the street finds OAPA (1861) almost impossible to
understand. Yet, this is precisely the person whom the Act is
intended to protect and serve. For example, people with no
legal training may find it hard to distinguish between
causing, inflicting, and occasioning harm.
Indeed, Lord Hope in Burstow (1998) recognised that for all
practical purposes there is no difference between the words
inflict and cause. It would make more sense to use the
single word cause rather than these alternatives. Even
occasioning would be better expressed by causing injury,
either directly or indirectly.
Thirdly, non-fatal offences are intended to be a hierarchy of
offences based on the level of injury and the appropriate
penalty. For example, battery involves unlawful hostile
contact and attracts a fairly minor penalty.
However, wounding is treated as a special category that
attracts higher penalties simply because the skin has been
penetrated. Therefore, one defendant might find himself
facing s20 Malicious Wounding while a second defendant
faces only s47 ABH even though he inflicted a more serious
non-penetrative injury.
Fourthly, s47 Assault occasioning Actual Bodily Harm seems
to be an anomaly because we need the mens rea only for the
Assault element of the offence and not for the actual bodily
harm itself. For example, if a defendant trips the victim,
intentionally or recklessly, while they are coming down a
stair, only the mens rea for the trip is required, but not for
the consequences of the trip, the actual bodily harm. This
seems to be out of line with the other non-fatal offences
where there is a direct link between the mens rea and the
harm caused.
Proposed Reforms

21

The Law Commission has proposed a new law to cover nonfatal offences. Their draft Bill sets out four main offences:
assault, battery, injury, serious injury, together with either
intention or recklessness as the mens rea.
For each of these offences, the level of injury and the
required mens rea is simplified and made clear. For
example, the most serious offence is described as
intentional serious injury where the defendant would be
guilty only if he intentionally caused serious injury to
another person.
The draft Bill also defines the word injury making it clear
that both physical and mental injury are included. The word
wounding will no longer be used, so a serious cut will be
considered a serious injury while a small cut will be
regarded as simply an injury.

22

SUMMARY OF CRITICISM OF NON-FATAL OFFENCES

Problems
1. Language of OAPA (1861) obscure, archaic, misleading.
2. Problem of the word malicious in s20 Malicious Wounding
Malicious implies malign intention towards another person, but
the mens rea of s20 is either intent or recklessness.
A defendant cannot have specific intent and basic intent (recklessness)
at the same time.
3. Man in the street finds it difficult to understand the nuances of the
language used in describing the offences. Find it difficult to distinguish
between occasioning, causing and inflicting. For example, Lord Hope said
in Burstow (1998), For all practical purposes there is no difference
between the words inflict and cause.
4. Non-fatal offences intended to be a hierarchy based on level of harm and
appropriate penalty. But wounding seems to be treated a special form of
injury attracting more severe offences and higher penalties. One defendant
who wounds a victim may find himself facing a s20 Malicious Wounding
offence while another defendant who has caused a similar injury without
wounding finds himself on s47 Assault occasioning Actual Bodily Harm.
Anomaly.
5. S47 Assault occasioning Actual Bodily harm also seems to be an anomaly
because for this offence mens rea is required only for the Assault and not
for the ABH that is the result of the assault. For all other non-fatal
offences, mens rea is required for the injury itself.
Reforms proposed by the Law Commission
1. A new law to cover non-fatal offences.
Only four offences assault, battery, injury, serious injury
Mens rea for all these offences to be intention or recklessness.
up to the jury to decide the appropriate mens rea in the light
of all the evidence. Most serious offence would be intentional
serious injury.
2. Wounding no longer in special category. Wounding, other physical injuries,
and psychiatric injury all to be regarded as injuries.
3. Language to be modernised, simplified, and comprehensible to
the man in the street.

23

The current law on non-fatal offences is here criticised again

Simply to increase your understanding of what is required in the essay.
The Law Commission has pointed out that there are three
main problems with the Offences against the Person Act
1861. These are:
The act uses obscure and old-fashioned (archaic)
language; e.g. the words maliciously and grievous.
For example, how serious does an injury have to be to
warrant the description grievous?
The structure of the Act is complicated and leads to
inconsistencies.
Non-lawyers often find the Act difficult to understand,
if not unintelligible.
Considering the OAPA 1861 was drafted about 150 years
ago, it is hardly surprising that we find some of its
language obscure and even misleading.
For example, s20 of the Act uses the phrase malicious
wounding. Here the word malicious is misleading
because the word malicious suggests that a person
specifically intends to do some sort of harm to another
person. In fact, the defendant may have been only
reckless in inflicting the wound; therefore it is difficult to
see why the offence should be called malicious
wounding since the word malicious implies specific
intent. It would make more sense to describe s18 as
malicious wounding since specific intent is the required
mens rea for the offence.
The Law Commission point out that the archetypal man
in the street finds OAPA 1861 difficult to understand and
interpret. Yet, this is precisely the person whom the Act is
intended to serve and protect. If a 100 people chosen at
random in a High Street were asked to give example of
grievous bodily harm, we would get a very wide range of
responses indeed.
24

In fact, some of the difficulties have been resolved by

judges in case decisions. For example, there was
considerable debate as to whether the word inflict in
s20 (maliciously wounding or inflicting grievous bodily
harm) meant that a technical assault had to take place.
This was resolved in the case of Burstow (1998) where
the defendant carried out an eight-month campaign of
harassment against the victim causing her psychiatric
injury. This means it need only be shown that the
defendants actions have led to the consequence of the
victim suffering grievous bodily harm; no technical
assault is required.
Indeed, Lord Hope in Burstow (1998) recognised that
for all practical purposes there is no difference between
the words inflict and cause. It would make sense to use
the single word cause rather than any other
alternatives.
There are inconsistencies in the Act, especially with
regard to the mens rea required for each offence. In
particular, s47 assault occasioning actual bodily harm,
has the same mens rea for an assault or battery. It does
not require the defendant to intend or realise that there
is any risk of injury. This appears unjust. For example, in
Savage (1991) a woman in a pub threw beer over
another woman. In doing this the glass slipped from the
defendants hand and the victims hand was cut by the
glass. The Law Lords decided that she had intended to
throw the beer over the other woman which meant she
had the intention to apply unlawful force (battery) and
this was sufficient for the mens rea of the s47 offence.
Many people might regard the cutting of the other
womans hand as an unfortunate accident, and the
decision of the Lords as unjust.
It is also inconsistent that a defendant who only intends
or foresees the risk of minor injury can be convicted of

25

the very serious offence of s18 if a serious injury then

occurs when he intends to resist arrest. This is the effect
of the decision in Morrison (1989) where a police
officer seized hold of the defendant and told him that she
was arresting him. Morrison dived through a window,
dragging her with him so that her face was badly cut by
the glass. It is clear that Morrisons behaviour was
reckless. But is it right that the fact that the defendant
was intending to resist arrest makes him liable for the
same offence S18 wounding with intent to wound as
someone who has specifically intended to cause serious
injuries?

26

Law Commissions Proposals

In 1993, the Law Commission proposed a new law to take
the place of the current law on non-fatal offences. In
1998, the Government published a draft Bill that set out
four main offences. These are:
1. Intentional serious injury where a person would be
guilty if he intentionally caused serious injury to
another person.
2. Reckless serious injury where a person would be
guilty if he recklessly caused serious injury to
another person.
3. Intentional or reckless injury where a person would
be guilty if he intentionally or recklessly caused
injury to another person.
4. Assault: a person would be guilty of assault if he
intentionally or recklessly
(a) applied force or caused an impact on the
body of another person, or
(b) caused the other person to believe that any
such force or impact is imminent.
In each of these, the level of injury and the required mens
rea is made clear by the wording. In addition, the draft Bill
also defined the word injury making it clear that both
physical and mental injury are included. The word
wounding will no longer be used, so a serious cut will be
considered a serious injury while a small cut will be
regarded as simply an injury.
Unfortunately, although the Bill was sent out for
consultation in 1998, the Government has done nothing
more, so the law on non-fatal offences remains in an
unsatisfactory state.

27

SUMMARY OF CRITICISM OF NON-FATAL OFFENCES

Problems
1. Law Commission suggests three main problems: (a) language
obscure and old-fashioned; (b) structure of Act complicated
inconsistencies; (c) difficult for man in the street.
2. Problem of the word malicious in s20 Malicious Wounding
Malicious implies malign intention towards another person, but
the mens rea of s20 is either intent or recklessness.
A defendant cannot have specific intent and basic intent
(recklessness)
at the same time.
3. Man in the street finds it difficult to understand the nuances of
the
language used in describing the offences.
E.g. What does the average person understand by grievous
bodily harm?
4. Some of the issues have been resolved by the courts.
Burstow (1998) in s20 the word inflict does not mean a
technical assault is required.
it need only be shown that the defendants actions have led to the
consequence of the
victim suffering grievous bodily harm; no technical assault is
required.
Burstow (1998) Lord Hope no difference between the words
inflict and cause.
5. Inconsistencies: S47 Assault occasioning Actual Bodily harm
also seems to be an
anomaly because for this offence mens rea is required only for
the Assault and not
for the ABH that is the result of the assault. For all other nonfatal offences, mens rea is
required for the injury itself. Savage (1991)
Should the fact that a defendant was resisting arrest be sufficient
to provide the mens
rea of a s18 offence which otherwise is reserved for defendants
who intentionally cause
very serious injuries? Morrison (1989) was admittedly reckless
but he hardly intended
to cause serious injury to the police woman.
Reforms proposed by the Law Commission in 1993
Governments draft Bill in 1998
28

1.

A new law to cover non-fatal offences.

Only four offences assault (a + b), injury, serious injury
Mens rea for all these offences to be intention or recklessness;
up to the jury to decide the appropriate mens rea in the light
of all the evidence;
most serious offence would be intentional serious injury.
2. Wounding no longer in special category. Wounding, other physical
injuries,
and psychiatric injury all to be regarded as injuries.
3. Language to be modernised, simplified, and comprehensible to
the man in the street.
4. Unfortunately, although the Bill was sent out for consultation in
1998, the Government
has done nothing more, so the law on non-fatal offences remains in
an unsatisfactory
state.

29