Criminal Law

Note:

  • English cases are in red font type. 
  • Irish cases are in green font type.
  • All other jurisdictions are in black font type (with note of each jurisdiction). 

Introduction

Irish criminal law is set out in statutes and court decisions. Serious offences are prosecuted by the Director of Public Prosecutions in the name of the People of Ireland, and are normally tried before a jury, although terrorist, and increasingly organised crime, trials are held in the juryless Special Criminal Court.

The two fundamental tenets of criminal law are:

  • Actus Reus – Physical act
    • e.g. act/omission/causing a state of affairs
  • Mens Rea – Mental element
    • Intention/recklessness/knowledge/belief

Some crimes require only the actus reus be fulfilled to warrant prosecution (strict liability offenses), however most require that both the actus reus and mens rea be present. The reasoning behind this is quite simple in that the role of the judiciary is to punish the guilty mind (mens rea) when acted upon (actus reus). There are also a multitude of variation to each element that differentiate how criminal offenses are established and tried (e.g. incapacity, automatism etc.)

The mens rea is usually at issue in criminal law and forms the crux of most cases.

Only very occasionally will one be found liable for an omission (failure to act). Generally the criminal law looks prosecutes positive acts.

Topic 1 – Actus Reus

Actus non facit reum nisi mens sit rea: A person’s conduct cannot amount to a crime unless it is carried out with a blameworthy state of mind.

Actus reuse = “guilty act”

i) Types of Crime 

The types of crime related to actus reus are:

  • Result crimes

    • e.g. Murder
  • Conduct crimes
    • e.g. perjury, rape
  • State of Affairs crimes
    • Pursuant to s. 4(1) of the Criminal Justice (Public Order) Act 1994
      • e.g. intoxicated in a public place where there is reasonable apprehension that the person might injure himself or someone in the vicinity.
      • ***R v Larsonneur [1933] 24 Crim. App. R. 74
        • A French citizen deported from Ireland back to UK. Due to her failure to comply with UK visa requirements, she was prosecuted.
        • Held:  It does not matter why she was there, but the fact that she was, made her liable and criminally at fault. The Court did not consider culpability.
      • ***Winzar v Chief Constable of Kent, The Times (28 March 1983)
        • Mr. Winzar was found slumped in a hospital corridor where upon staff called the police. The police took him outside onto the road and placed in a police car – they later prosecuted for being intoxicated in on a public highway.
        • Held: The Court considered the terms of the offense and for him to be convicted, it was enough that the accused was in a public place and was perceived to be drunk in that public place. It does not matter whether it was only for a few moments.
      • Contrast this with ***Martin v State of Alabama (1944) 31 Ala. App. 334 (CA) (USA)
        • Same factual scenario as Winzar.
        • Held: One should not be convicted in the absence of voluntary conduct.
      • ***Finau v Department of Labour [1984] 2 NZLR 396 (Wellington CA) (New Zealand)
        • Defendant was in violation of visa requirements and heavily pregnant. She was ordered to leave NZ but no airline would carry her.
        • Held: It was accepted that her failure to leave was not of her choosing (involuntary) and was she was acquitted of the offense.

How do we prove an actus reus?

  • The criminal law does not seek to punish people for their evil thoughts only. 
    • ***R v Deller (1952) 36 Crim. App. R. 184
      • The defendant’s car, he believed, was mortgaged to a finance company. Believing this, he sold the car to Mr. Y and in doing so, he unknowingly made a false statement. He told the purchaser the car was “free from all encumbrances”. Deller was charged with obtaining money under false pretenses, under a 1916 Act. Unknown to Mr. Deller, the mortgage document was in fact not valid in law, and as it turned out, he wasn’t lying when he said that there were no loans attached to the car because that loan could not be enforced under the law. So… there were no false pretenses because his statement was true. His conviction was quashed.

ii) Coincidence of actus reus and mens rea (Concurrence Theory)

For a crime to be committed, the actus reus and mens rea of the crime must coincide at one point in time. The courts stretched this idea in:

  • ***R v Jakeman (1982) 76 Cr. App. R. 223

    • Woman, travelling to London via Rome by plane, carrying cannabis in her luggage. The flight is diverted to Paris where she has a change of heart and leaves luggage behind. The Paris handlers forward it to her in the UK. UK authorities charged her with smuggling drugs.
    • Held: What mattered was her “state of mind at the time the relevant act was done.” Therefore she was found guilty. This is because the mens rea and acts reus coincided at some point in time.

— Continuing Act Theory

Where an actus reus may be brought about by a continuing act it is sufficient that the accused had the necessary mens rea at any point during the act.

  • ***Fagan v Metropolitan Police Commissioner [1969] 1 QB 439

    • The defendant unknowingly drove over the foot of a police office (actus reus is present but mens rea is not). After realizing, and the officer telling him to remove the car, he refused (omission) (at this point the mens rea and actus reus coincide.)
    • Held: Assault is not necessarily a “one-moment act”. The definition of assault involves the application of force.
      • We must ask whether leaving a car parked on someone’s foot can be defined as an application of force?

However, if an act is incomplete, the existence of a mens rea cannot convert it into an offense. In this sense, merely having a “guilty mind”, i.e. thinking about killing someone, and partially acting upon that (i.e. driving to their residence) but then backing down will not result in prosecution.

This ‘continuing action theory’ has largely been taken over by the ‘Duty Principle’ however.

— Duty Principle

Where the defendant creates a dangerous situation they are under a duty to prevent or minimise the harm resulting from it. For example:

  • ***R v Miller [1983] 1 All Er 978

    • Sleeping man accidentally lit house on fire (dropping cigarette). Upon realizing this, he simply moved to another room in the house.
      • But, there is no mens rea?
    • Held: Even if you inadvertently (without positive thoughts) start a chain of events which if left uninterrupted would cause harm, either to property to another person, you are under a duty to minimize that harm when you become aware of it.

— Supposed Corpse Cases

  • ***Thabo Meli v R [1954] 1 All ER 373 (Privy Council)
    • Three men carried out a premeditated attack on the victim. After beating him, they thought they had killed him. Thinking he was dead, they rolled him off a cliff. The victim only died a number of hours later however, from exposure to the elements.
    • Argument: The attack and cliff disposal were two different actions and thus they only had the requisite mens rea for the attack. Since the victim was not dead before the second act (rolling victim off the cliff), they argued they could not be charged with murder.
    • Held: The actus reus and mens rea coincided throughout this chain of events. Where an actus reus consists of a number of actions, it is enough that the mens rea exists at some point during them.
  • ***R v Church [1965] 2 All ER 72
    • Physical fight between a couple resulted in the male knocking his partner unconscious. He tried to resuscitate her but thought she was dead and threw her in the river where she drowned. Evidence showed she had not been dead, but merely unconscious and her death was caused by her being thrown into the river unconscious.
    • He was convicted of manslaughter and appealed on the basis that he did not have the requisite mens rea for her murder.
    • Held: Conviction upheld. What happened was “a series of acts which culminated in her death”. The acts could not be considered separate.

— ‘Transaction Principle’

If what you do in a later part of the acts, is considered to be part of the same sequence, the mens rea will apply to all the acts. = Transaction Principle

  • ***R v Le Brun [1991] 4 All ER 673
    • Background: The defendant assaulted his wife, she fell, as he was carrying her, she slipped from his arms, fractured her skull and died. – He was charged with murder but convicted of manslaughter. He appealed.
    • Held: The act causing death was part of the same sequence of events.
    • Lord Jane C:- It seems to us that where the unlawful application of force and the eventual act causing death are arts of the same sequence of events, the same transaction, the fact that there is an appreciable interval of time between the two does not serve to exonerate the defendant from liability. That is certainly so where the appellant’s subsequent actions which caused death, after the initial blow, are designed to conceal his commission of the original unlawful assault.”

iii) Causation

Causation requires the establishment of a link between the defendant’s conduct and the crime. If the offense is a ‘conduct offense;, there is no causation (e.g. perjury). For result cases (e.g. murder etc.), causation must be proven. It is usually not difficult to establish.

There are two stages to proving causation:

  • Legal causation
  • Factual causation

A jury determines cases such as these and it is left to them to decide on both. Both factual and legal causation must be found in order to convict a defendant of a crime.

— Factual Causation

The sine qua non (but for) test usually applies when determining factual causation.  This test translates to:- “but for the actions of the defendant would the situation have happened”

An example of this in practice is:

  • ***R v White [1910] 2 KB 124
  • Background: The defendant put cyanide in his mother’s lemonade. Before she could drink the lemonade, she died of a heart attack. The question is… but for the actions of the defendant would she have died?
    • Using the sine qua non test, he is not liable for her death instead, merely for attempted murder.
    • It is clear here that the actus reus was not complete, and therefore only establishing mens rea is not enough to convict him for murder.

The problem with factual causation is that it is usually too broad/wide to be applied in very detailed/minute incidents or multiple/concurrent causes. 

  • E.g. in a traffic accident – there are many possible causations (weather, tire tread, driver’s ability, negligence, other road users etc.)
  • As a result, guidelines are imposed. This is where legal causation comes from.

— Legal Causation

Legal causation tries to set guidelines on the factual situation(s) in order to determine which of the factual causes is sufficient to be regarded as morally blameworthy. It is connected largely to responsibility and culpability So, if something is seen as too remote, it is likely that they would not be convicted. Also, the defendant’s actions do not have to be the only cause of the result as there may be multiple criminal liabilities.

Not all sine qua non cases will be legal causes of an event. As a result, there are some guidelines.

(1) Conseqence must be attributable to a culpable act

  • ***R v Dalloway (1847) 2 Cox 273
    • Defendant was driving a cart and not holding onto the reigns of the horse. A child ran into the road and was struck by a wheel of the cart and died.
    • Issue: Is the defendant culpable for causing the death of the child?
      • Judge directed the jury as follows:
        • Could the driver have saved the child by using the reigns and controlling the horse?
        • If however there was nothing he could do, they were free to find him not guilty.
          • He was acquitted on the facts.
          • They are looking for a causative link between not holding the reins and the child’s death. 

(2) Culpable acts must be more than a minimal cause – courts use language such as “substantial cause” “contributing significantly to the result” etc.

  • ***R v Adams [1957] Crim. LR. 365
    • Defendant was a doctor and charged with “easing the passing of elderly patients” by giving them drugs that would hasten their death. Questions surrounded his motivation, he admitted to it.
    • Held: “a doctor has no special defense in relation to giving drugs that shorten life, in a situation where a patient is in severe pain.” However, “he is entitled to do all that is proper and necessary to relieve pain even if the measure he takes may incidentally shorten life.”
      • This distinguishes the result as a secondary consequence.
      • Jury has to ask whether he wants the money or he is merely trying to ease pain.
      • Jury’s will more likely than not conclude that Doctors are doing things for the right reason.

(3) There may be more than one operating cause – the act of the accused need not be the main nor sole cause of the prohibited outcome.

  • ***DPP v Davis [2001] IR 146
    • Defendant tried to argue that at least some of the injuries caused to his victims were the result of alternative factors.
      • e.g. that the victim was in a fight earlier that evening, that the victim had fallen down the stairs, that trying to revive the victim caused injuries
    • Held: Court did not find him convincing: “it is sufficient if the injuries caused by the applicant were related to the death in more than a minimal way.”
  • ***DPP v Daly [2009] IECCA 90 
  • Defendant assaulted victim who died two months later in hospital of cardiac arrest.
  • Held: ‘injury has to be the substantial cause of death’ which must ‘contribute in a substantial, significant or meaningful way”. Actions of others might contribute: not only the accused.

What about the actions of 3rd parties?

  • ***R v Benge (1865) 4 F & F 504

    • Defendant was a foreman responsible for men carrying out repairs on train tracks. He misread the train timetable. The flag man was placed in the wrong place and the train didn’t have enough time to stop. A number of people were killed.
      • Charged in relation to the accident of manslaughter. He argued that it was not just him that was at fault – there were other employees who were equally negligent in carrying out their responsibilities.
    • Judge directed the jury:
      • If the defendant’s conduct, mainly or substantially caused the accident, it did not matter that it could had have been avoided if other people hadn’t been negligent too. Is he liable?
      • More than one person can be liable in a crime. If two people carry out an assault – both can be liable or even one can be liable. It depends. The jury has to show ‘substantial’ responsibility.
    • It is clear from this case that more than one person can be liable – it is really a matter for the jury to determine based on the facts of each individual case. 

What about the actions of the victim? Is there such thing as contributory negligence in criminal law?

  • ***R v Longbottom (1949) 3 Cox CC 439

    • Defendant negligently drove horse and carriage at night. He claimed the victim was negligent in not moving out of his way (victim was deaf). 
    • Held: Just because the victim was negligent, does not mean the defendant should be acquitted.

This principle was confirmed in Ireland in:

  • ***The People (AG) v Gallagher [1972] 1 IR 365

    • Defendant was charged with dangerous driving and killing a motorcyclist. There was evidence however that the victim was driving on the wrong side of the road.
    • Held: Jury must see first whether the dangerous driving of the accused was one of the causes and if this is positively determined, they must be satisfied beyond a reasonable doubt that this cause contributed in a real way. 

Where a victim brings about his own death, this may be legally attributable to the Defendant where he caused the Victim to reasonably apprehend violence to himself and he died seeing to escape. We could find the defendant liable if the reasonable person could have been able to foresee it.

  • ***R v Roberts (1979) 56 Crim. App. R. 95
    • Female victim accepted a lift home from accused. He began to act inappropriately, making lewd comments and inappropriate touching. The car was travelling at 20mph when the victim jumped out . Defendant was charged with assault.
    • Issue: Whether the acts of the accused caused the injuries to the victim?
    • Held:  The victim’s reaction does not break the chain of causation if it is reasonably foreseeable. 
      • This test of reasonable foreseeability is an objective test.
  • ***R v Williams (1992) 2 All ER 183
    • A hitchhiker was given a lift by the defendant and co-accused. They attempted to rob him and he jumped out of the car and died.
    • Held: The question is whether the deceased’s conduct was proportionate to the threat, that is to say that it was within the ambit of reasonableness and not so daft as to make it his own voluntary act which amounted to a novus actus interveniens and consequently broke the chain of causation. It should of course be borne in mind that a victim may in the agony of the moment do the wrong thing.” (Stuart Smith LJ at p.191)

A very important axiom in criminal law is the Eggshell Skull/Thin Skull Rule. Here, the accused cannot complain where the victim is particularly prone to injury.

  • ***R v Martin (1832) 5 C & P 128
    • “it is said that the deceased was in a bad state of health; but that is… immaterial as, if the prisoner was so unfortunate as to accelerate her death, he must answer for it”
      • Clearly the rule is applied harshly. However, there seems to be no answer as to whether it is applied absolutely. Hopefully this will be determined in future cases. 
  • ***R v Blaue [1975] 1 WLR 1411
    • Defendant stabbed the victim who was 18 years old (important). She needed a blood transfusion in order to survive. However, she was a Jehovah’s Witness and refused it on religious grounds. The accused was charged with murder – but she would have lived if she took the blood transfusion.
    • Held: ”It has long been the policy of the law that those who use violence must take their victims as they find them. This… means the whole man, not just the physical man”.
      • There was no discussion of whether this was reasonable, by an objective standard. 
      • This principle in recent years has been extended to include mental issues/psychological elements, as well as attributes of the victim.

What if the victim kills themselves?

  • ***People v Lewis 124 Cal. 551 (USA)
    • Victim was shot by his brother-in-law. Rather than die slowly he slit his own throat. The accused was convicted of manslaughter. He appealed his conviction, saying that the victim had killed himself.
    • Held:  The shooting wound was still an operating cause of death at the time the victim died. It had prompted the victim to slit his own throat.
    • The Court never asked any questions with regard to reasonableness.
  • ***R v Dear [1996] Crim. LR. 595
    • Defendant stabbed the victim who after received medical treatment. The victim reopened his wounds and ultimately. Difficult question for the Court. The reason why the accused attacked the victim was because of an allegation that the victim had sexually abused the defendant’s daughter.
    • Court asked: Why did the victim reopen his wounds? There were two possible answers:
      1. If the victim had re-opened his wounds because he was ashamed of engaging in the sexual assaults, that could break the chain of causation because it did not arise directly from the stabbing. It was an extraneous factor.
      2. If he re-opened those wounds as a result of the attack which left him seriously disfigured, then that would not break the chain of causation, because the action of the victim relates directly to the stabbing.
    • However, they said that there was no break in the chain of causation because the death had arisen from a bleeding artery, which had been directly severed by the attack –  this meant that the defendant’s conduct was an “operative and significant contribution to the death”
    • The Court never asked any questions with regard to reasonableness.

Here we see some analysis of the chain of causation and what may break it. 

  • ***R v D [2006] EWCA 1139
    • Held: Where the defendant inflicts physical and/or psychological harm, and as a result causes the victim to develop a recognized psychological illness, which then in turn causes the victim to commit suicide, there may be liability for manslaughter.

It is possible that this rule (***R v D) may be stretched to include bullying, whether in person or virtual, however, the issue with this is the fact that it is very difficult to prove the chain of causation (i.e. that the bullying inflicted by the defendant was an operative and significant contribution to the suicide of the victim.

— Novus Actus Interveniens

The general rule: an intervention by a 3rd party will constitute a novus actus when it is “free, deliberate and informed.”

There are many situation where a novus actus may arise. Some major ones are dealt with below.

(1) Act of a 3rd Party

  • ***R v Pagett [1983] 76 Crim. App. R. 279
    • Defendant in fleeing the police  took his 16-year-old, pregnant girlfriend hostage. The police open fire (in defense) and kill the girlfriend (not on purpose). He was charged with her murder, even though the bullet came from the police officers gun.
    • He is convicted of manslaughter (not murder) and appealed.
    • Issue: Are the actions of the police, which was the immediate cause of death a novus actus and therefore sufficient to break the chain of causation?
    • Held: The police acted in self-defense and therefore the polices’ actions were involuntary. That meant that it did not break the chain of causation.
      • The Police however, were later found liable under civil negligence. 
  • ***Attorney General v McGrath (1960) IECCA 11
    • Background: Victim was assaulted and left at the side of the road. A doctor came across the victim then goes to get an ambulance. It takes 20 mins for the ambulance to arrive. Before it does however, members of the public come across the victim, put him in a car and take him to the hospital. It is found he has internal bleeding and he subsequently dies.
    • Defendant argues that the reason the man died was due to the inexpert treatment of the passers-by.
    • Held: Court of Criminal Appeal: medical evidence established that the death arose from inhalation of blood, which occurred because of the original act of the accused. The actions of the passers-by do not introduce a new cause.
      • There is also a good policy reason for this – you don’t want the defendant to be found innocent due to well-intentioned passers-by. Well-intentioned intervention is therefore unlikely to break the chain of causation unless the circumstances are exceptional (e.g. a serious car accident occurs on the way to the hospital).
  • In another case, a question was put to the House of Lords (UK) which asked: Can the supplier of drugs be found liable for the manslaughter where the Victim has freely and voluntarily self-administered the drugs that then cause their death? This next case answered the question:
  • ***R v Kennedy (No. 2) [2007] UKHL 38
    • Accused was asked by the victim to supply him with heroin. Defendant filled the syringe, handed it to the victim, and the victim self-administered. He died within an hour (due to overdose). Defendant was convicted of manslaughter.
    • Per Lord Bingham: **it is never appropriate to find someone guilty of manslaughter where the victim freely and voluntarily self-administers the drug.
      • Reason: It was the cause of his own demise.
    • The chain of causation is broken where the person takes the drugs voluntarily.
    • However, in supplying the drugs, you owe them a duty of care if you sit by and watch them die.

(2) Neglect by the Victim

  • ***R v Flynn (1867) 16 WR 319 (IR) 
  • Victim was assaulted and died four days later without having visited a doctor – in the meantime the victim resumed normal activities (walking, riding horses etc.)
  • Held: If the victim does not alter their behavior, but continues on their normal routine, that does not exonerate the defendant, assuming it is the original assault that causes death.
    • However – if your acts subsequent to the assault are outside of the normal course of behavior, it may be that would give rise to a new mischief being regarded as the cause. This is largely reserved for a jury in their factual determination.
  • *R v Holland (1841) 2 Mood & R 351

    • This case involved a refusal to have a finger amputated.

(3) Medical Treatment

If one of the medical intersections between assault and death is negligent/improper, would that break the chain of causation?

General Rule: If you injure somebody, the subsequent events have to be majorly dramatic so as to break the chain of causation (e.g. – defendant breaks the leg of a victim – the victim goes to hospital and contracts infection – defendant is still guilty).

  • *R v Jordan [1959] Crim. App. R. 152
  • Victim was stabbed. About a week after, he died of bronchia-pneumonia. Defendant was convicted of his murder. He appealed – on this appeal there was new evidence to show that the bronchia-pneumonia was probably caused by the victim’s unusual reaction to antibiotics and/or excess of intravenous fluids. The antibiotics were given to the patient, even after it became clear that he was allergic to them.
  • Held: The medical treatment was “palpably wrong” and that had it been put to the jury, it was highly likely that they would have acquitted him.
    • This is an exceptional case: There has been no similar decision (reported) along these lines since. 
  • ***R v Smith [1959] All ER 193 CA
    • Background: Victim was stabbed with a bayonet (two soldiers fighting in barracks). Victim, after being placed on a stretcher, fell off.
    • Held: “If at the time of death the original wound is still an operating cause and a substantial cause then the death can properly be said to be the result of the original wound, albeit that some other cause of death is also operating. Only if the second cause is so overwhelming as to make the original wound merely part of the history of the death can it be said that the death did not flow from the wound.”
  • ***R v Cheshire [1991] 3 All ER 670
    • A new rule was established here: Was the death attributable to the acts of the accused?
    • Background: Victim was shot. Medical staff gave him a tracheotomy. He developed breathing difficulties and died as a result of the obstruction of the wind pipe, which was a rare, but not unheard of complication to an emergency tracheotomy.
    • Held: The Court accepted that at the time of death, the wound inflicted by the accused was starting to heal, and that had the medical staff diagnosed the problem, he would have survived.
    • But, only extraordinary and unusual treatment can constitute a novus actus.
      • They upheld charge of murder, on the basis that the medical complication was a direct consequence of the accused’s actions. So, the defendant’s acts remained a significant cause of the victim’s death.
      • There is a policy context to this – medical teams are doing their best in the circumstances – courts do not generally want to criminalize medical staff.

What if medical treatment is withdrawn?

  • ***R v Malcherek; R v Steele [1981] 1 WLR 690

    • These cases involved the attacking of wives.
    • This question revolves around the issue of doctors removing life support from patients where the prospect of recovery is almost none.
    • Held: The responsibility rests on the defendant (attacker) in such cases.
  • ***In re a Ward of Court (1995) 2 ILRM 401
    • This case came to the same conclusion, however, it provided obiter that doctors are not immune from criminal liability, affirming the possibility that a novas actus caused by negligent or deliberate actions may arise.

Proving Causation – How is it done?

A causal link can be inferred from circumstances even where precise cause cannot be shown.

  • ***DPP v Murphy [2005] IECCA 52 CCA
    • Background: A young woman’s body was found exposed to the elements, one month after disappearance. As a result, there was no clear pathologists report as to the cause of death. However, they did discover semen on the body and linked it to the defendant. He was charged with her murder and argued there is only evidence that he had sex with her and had not killed her.
    • Held: “abundant evidence from which a virtually irresistible inference [of causation] could be drawn” allowed for a conviction.

iv) Types of Conduct

The different types of conduct are:

  • Acts
  • Words
  • Omission – we will return to this
  • Possession:
    • Having control of a prescribed thing
  • Control not use
    • Actual or constructive

v) Criminal Omissions

Criminal law generally criminalizes positive actions. The law traditionally wished to respect people’s autonomy.

There are two types of omissions:

  1. Pure omission – Breach of a duty to act
    • Road Traffic Act, s. 106 – it is an offense to not stop your vehicle after causing injury to person or damage to property.
  2. Commission by Omission“Failing to intervene, where necessary, to prevent the occurrence of a serious harm such as death or the destruction of property.” (Fletcher)

There is a fine line that is drawn between public police considerations and personal autonomy. It must be treaded carefully to ensure the civil liberties of citizens are upheld. An example of this is  s. 50 of the Road Traffic Act 1968 which requires you to be breathalyzed by the Garda where there is suspicion of a DUI offense. Section 30(1)(a) states that refusing to comply to a breathalyzer test is an offense.This is a public policy decision (if the delay is long enough, the evidence will disappear). Judges are less keen to impose liability in these situations.

We will now assess both of these omissions in more detail

(1) Breach of a Duty to Act

It is an offense for a public officer to willfully and without reasonable excuse/justification, neglect to perform a duty imposed on him. This is a common law offense.

  • ***R v Dytham [1979] 2 All ER 641 (CA)
    • Background: Defendant was an on duty and uniformed police officer. He witnessed a young man being beaten to death and does not intervene. He informs a bystander that he is going off duty and drives away. He is charged with misconduct while acting as an officer of justice, the allegation being that he deliberately failed to carry out his duty as a police officer.
    • Argument: He did not make any positive actions. To find him guilty, there must be some positive act or corruption.
    • Held: Rejected D’s argument. “Where the holder of a public office willfully fails to perform a duty that they are under, then that officer is guilty of a Common Law offense “Misconduct in a public office”
  • ***DPP v Bartley (1997, unreported) High Court
    • This Irish case suggests the law in Ireland follows ***Dytham.
    • Background: Sexual abuse of a woman by her step brother over 25 year period. She went to the Garda station but they refused to believe her, were abusive, and sent her away. He was eventually convicted.
    • Held: Obiter per Carney J: “where a credible complaint of felony is made to a policeman he has no discretion under the Common Law not to investigate it and apprehend a named offender. A failure to carry out this duty vigorously constitutes an illegality on the policeman’s part and renders him liable to prosecution.”

(2) Commission by Omission

Not all omissions give rise to liability. There must be a duty, in law, to act or intervene in the circumstances.

The categories that are identified in the following are not set in stone. They are changing as the law changes as well, of course, as society changes.

— Drug Supply

General rule: Liability for manslaughter can arise where the person becomes ill, you are aware of that fact, and do not call for help.

  • ***R v Evans (Gemma) [2009] EWCA Crim. 650
    • Background: Evans was convicted of manslaughter for supplying her half-sister with heroin. She did not summon the emergency services after the sister fell seriously ill. The sister died. Both mother and daughter are charged with the manslaughter. Mother is convicted due to her parent-child responsibility/duty to act.
    • Issue: What basis was Evans convicted under? Where does this duty arise from?
    • Held: “when a person has created or contributed to the creation of a state of affairs which he knows, or ought reasonably to know, has become life threatening, a consequent duty on him to act by taking reasonable steps to save the others life will normally arise.”

However, it was noted that this need only be calling the emergency services or something similar. So it seems that only a blatant and egregious refusal to act will warrant liability arising. Calling the emergency services and doing nothing more, even if you could, would not find liability.

— Duty Arising from a Relationship

A legal duty is owed to close relative as a result of the relationship itself.

Some examples of this are:

a) Parent & Child Relationships

NOTE: All cases from here until Topic 2 are considered to be gross negligence manslaughter  cases. The test for establishing gross negligence manslaughter is looked at in Topic4. The cases considered below must be linked with the test for gross negligence manslaughter.

The parent & child relationship is an extremely strong one and warrants perhaps the heaviest legal burden, of all relationships considered here.

  • ***R v Gibbins and Proctor (1918) 13 Crim. App. R. 134
    • Background: Father and stepmother failed to feed their child. The child starved to death.
    • Held: The Court found a duty to act. A failure to do so (such a clear and deliberate failure in this case) could give rise to liability for murder so long as the necessary mens rea is present.
    • The stepmother’s liability arose because she accepted money and food from the father and took a role in feeding the children.
      • What about Adult children?
        • Court looks for how independent that child has become. This is a question of fact.
  • ***R v Chattaway [1922] Cr. App. R. 7
    • Background: Deceased was 25 years old and had moved back in with her parents. Evidence showed that she was dependent upon them – completely under their control to the extent that she was not in control of her own affairs.
    • Issue: If the child is over 18, e.g. a fully fledged adult, the court will only seek to determine the level of dependence.
    • Held: Parents owed a legal duty to take care of her, despite her mature age.

Contrast ***Chattaway  with this next case:

  • ***R v Shepherd (1862) 9 Cox CC 123
    • Background: 18-year-old died in labor. Her mother failed to get midwifery support.
    • Held: Court ruled that the child was entirely emancipated from the mother and father and in control of her own affairs and so there would be no duty.

Although ***Chattaway and ***Shepherd come to opposing conclusions, there are is some possible recourse to this. First, ***Chattaway is a newer case, approximately 60 years later than ***Shepherd. Values perhaps changed during that time period. Also, there may be stark factual differences between the two cases in terms of dependence of each child. Although speculative, this must be noted when comparing the two, for the simple reason that there may be no valid comparison between the two cases where there may be very different factual matrices.

b) Spouses/Partners

General Rule: The relationship is not anywhere near as strong as the parent & child relationship. There is normally no prosecution except in extreme cases. Some of these are listed below:

  • ***R v Bonnyman (1942) 28 Crim. App. R. 131
    • Summary: Husband was found liable for the death of his drug addicted wife, having failed to get her proper medical care.
      • But what makes this case extreme? He was a doctor himself. He also consistently lied about what happens around her health.
  • ***R v Hood [2003] EWCA Crim. 2772
    • Suggests that spouses owe a duty to each other.
    • Background: Defendant was the sole carer for his wife. She had a variety of medical and lifestyle issues (diabetic, heavy drinker, heavy smoker, lost her left leg because of poor circulation). She suffered a bad fall and he failed to contact the emergency services. He didn’t call an ambulance for three weeks. She died in hospital. Had he called for medical assistance earlier, she probably would have survived (therefore there is no novus actus) – he is convicted of gross negligence manslaughter for failing to assist her.
      • However, there is a causation issue in that she contributed to hear death.
      • Conviction for manslaughter was available based on failure to act, despite the fact that there were multiple other contributory factors in relation to her death.
  • ***R v Smith [1979] Crim. LR. 251
  • Background: Defendant’s wife, after giving birth to a stillborn child suffers medical issues at home. He asks if he can get her help, she refuses however. Three days later she slips into unconsciousness at which point the husband called an ambulance. She died before they arrived.
  • Held: The judge directed the jury to the effect that the defendant owed a duty of care to his wife.
    • The case collapsed for failure of the jury to decide.
    • Note: The jury direction is important here in establishing a duty of care in such situations.

c) Siblings

General Rule: There is no duty to help a sibling.

  • ***R v Smith (1826) 2 C&P 449
    • Defendant’s brother, living in-house was bedridden. The brother did nothing to help.
    • Held: There is no legal obligation on one brother to maintain another (both adults) – so there is no criminal liability.

Contrast ***Smith with:

  • ***R v Evans (Gemma) [2009] EWCA Crim. 650
    • See infra.

The difference between these two cases seems to be the creation of the state of affairs. In ***Smith, the defendant brother had no role in causing the other brother’s death whereas in ***Evans, the opposite is true due to one sister supplying her half-sister with heroin. Note also, this nexus which is the creation of a state of affairs seems even to override the fact that in ***Evans the sisters were only half-sisters.

d) Assumption of Responsibility

There may be an assumption of responsibility. The following cases outline the two ways in which such a responsibility can be assumed:

  1. Duty can be implied.
  2. Duty can be adopted.

1) Implied Duty

  • ***R v Instan [1893] 1 QB 450
    • Background: Defendant lived with aunt (ate her food, lived there for free etc.). When her aunt got sick she did nothing to help. She was convicted of manslaughter on the basis that she continued to live in the aunt’s house for free, and continued to accept the hospitality, but did nothing in return to provide assistance.
    • Held: It was implied that she was under a duty to look after the aunt.

2) Adopted Duty

The following decision has been criticized widely, however it remains law thus far.

  • *****R v Stone and Dobinson [1977] 2 All ER 341
    • Background: S & D were a cohabiting couple. S was partially deaf and blind, with below average intelligence. D was described as ineffectual and somewhat inadequate. They had difficulty looking after themselves. S’s sister moved in with them who suffered from anorexia. She paid rent but did not leave the room/eat. D made inadequate attempts to look after her, but she eventually died.
    • S & D were prosecuted. If medical assistance heralded, she would have survived. The prosecution alleged that in the circumstance S & D had undertaken the duty of caring for the victim. As a result of their gross negligence she had died and so therefore they should be guilty of manslaughter.
    • Held: CtA upheld their conviction justifying this on the basis that there was a blood relationship between the deceased and S, she lived in the same house, they knew of her condition (Per Lane LJ).

It is easy to see why this case has stirred much controversy. Note the extensive criticism given to this case in ***Airedale NHS Trust v Bland [1993] 2 WLR 316. Firstly, as seen earlier, the courts justification in stating that there is a sibling relationship warrants no legitimacy as seen in ***R v Smith (see infra). Further, since S & D had difficulty looking after themselves, in what circumstances may they be considered able to successfully look after the deceased?

3) Can a person be released from an implied or adopted duty?

  • ***Joel v DPP et al [2012] IEHC 295
    • Background: A sick woman, previously under care discharged herself from hospital due to 1) Pathological fear of hospitals and; 2) Smoke of 60 cigarettes per day. Went to live with daughter and daughter’s partner. The allegation towards the daughter and her partner was that the accused allowed the deceased to die, (discovered with malnutrition and bed sores). Their defense was that the deceased was extremely strong-willed and refused all care/help as well as the HSE’s failure due to all care stopping on her discharge from hospital.
    • The trial jury failed to reach a verdict. This case illustrates the difficulty of prosecuting in many cases such as these.
  • ***R v Smith (1826) 2 C&P 449
    • See infra for facts of case.
    • Obiter: The jury should “balance the weight” of refusal of help v capacity to make choice as it may be reasonable to abide by someone’s wishes.
  • ***Airdale NHS Trust v Bland [1993] 2 WLR 316
    • Application made for declaration that it would be lawful for the doctors to withdraw medical treatment. Court ruled that it would be lawful, where it was in the best interests of the patient.

4) Contractual Duty

  • ***Brown v Pitwood (1902) 19 TLR 37
    • Defendant was responsible for closing the level closing gate at a railway crossing. He failed to do so and someone was killed. It was seen that “a man might incur criminal liability from a duty arising out of a contract.”
    • However, the courts have yet to deal with the extent of this duty, especially in regard to how much it must burden someone.

5) Duty Arising from the Creation of Danger

Failure to alleviate or remedy a dangerous situation (objective test), created by the defendant, may be sufficient for criminal liability.

  • ***R v Miller [1983] 1 All ER 978 (HL)
    • See infra for facts (sleeping man – cigarette – did not put fire out)
    • Criminal liability arose in this context
  • ***DPP v Santana-Bermudez [2003] EWHC 2908
    • Police asked “do you have anything in your pockets” Defendant said “No”. The policeman checked his pockets and was stabbed with a syringe.
    • This was an assault charge because he created a dangerous situation and did nothing to remedy it.
      • This is an important case as it creates liability where someone knowingly lies to a police officer where they have a dangerous object on their person. It serves to protect officers in arrests/stop-searches where such objects as syringes/needles and knives can sometimes even prove to be life threatening.

(3) Distinguishing Omissions and Acts

The distinction between a failure to act and a positive act may be blurred.

  • ***Fagan v Metropolitan Police Commissioner [1968] 3 All ER 44
    • Here, the distinction is blurred due to the “continuing action” theory where two seemingly separate acts coincide in the eyes of the law to create one, coherent act. Whether for policy reasons or simple logic, the distinction is blurred in such cases.
  • ***Airdale NHS Trust v Bland [1993] 1 All ER 821 (HL)
    • Bland was crushed in Hillsborough Disaster and left in a persistent vegetative state (PVS). This meant that in the eyes of the law he was technically still alive, however he had no independent functions and there was 0% chance of recovery.
    • The Hospital, with support of the family, wanted to remove life support. However, withdrawal of medical support is an omission, and the doctors may be liable.
    • The predicament was cleared up by the Court stating “the doctor is simply allowing his patient to die in the sense that he is desisting from taking a step which might, in other circumstances, prevent his patient from dying as a result of his pre-existing condition.”

Topic 2 – Mens Rea (A Brief Introduction)

Mens rea is the mental element of a crime. It is concerned with legal guilt as opposed to moral guilt however.

It may be said there are two types of fault:

  • Subjective
    • This is where the mental element should require accused to have personal awareness of actions, circumstances and consequences
  • Objective
    • This is the reasonable person.

Irish courts tend to take a subjective approach, unless there are good policy reasons to not do so.

The different categories of mens rea are:

  1. Intention
  2. Recklessness
  3. Knowledge
  4. Negligence
  5. Mistake
  6. Strict Liability Offences

(1) Intention

Intention is the highest form of mens rea. It is where the accused made a conscious decision to bring about a particular state of affairs.

Juries, when deciding on whether the defendant had intention, they take the literal definition of it as in the dictionary.

In Ireland, the case law is not comprehensive enough to define accurately when ‘intention’ means in this jurisdiction. The LRC has also made this same point.

Interestingly, there are two types of intention however:

  • Direct Intention
  • Oblique Intention

(1)(a) Direct Intention

Here a person directly intends a result when he desires to bring about that result and deliberately sets out to bring it about.

  • *****People (DPP) v Murray [1977] IR 360
    • Defendant beat victim with a large wooden stick.
    • Walsh J defined intention as: “To intend murder, or to cause serious injury… is to have in mind a fixed purpose to reach that desired objective. Therefore, the state of mind of the accused must have been not only that he foresaw but also willed the possible consequence of his conduct” (p 368)

(1)(b) Oblique Intention

This is where the defendant is acting for one purpose but brings about another.

  • ***(DPP) v Douglas & Hayes [1985] ILRM 25 CCA
    • “In the circumstances of any particular case evidence of the fact that a reasonable man would have foreseen that the natural and probable consequence of the acts of an accused was reckless as to whether his acts would cause death or not is evidence from which an inference of intent to cause death may or should be drawn, but the court must consider whether either or both of these facts do establish beyond a reasonable doubt an actual intention to cause death.”
    • This case is the only one in Ireland where oblique intention was discussed – The statement above is obiter

Foresight and recklessness could not be equated with intention, but they might, in particular circumstances, constitute evidence from which an inference of intention could be drawn. This widens the category of intention far beyond direct intention

(2) Recklessness

Recklessness is where a person does not intend to cause a harmful result but takes an unjustifiable risk of causing it.

Usually defined as engaging in conduct that involves taking an unjustifiable risk of causing harm to others

But what is a justifiable risk?

The courts look at the social utility of the activity involved relative to the probability and gravity of the harm which might be caused.

Note: The borderline between recklessness and intention, on the mens rea scale (if we may describe it as that) is where you may see murder v manslaughter convictions. 

  • ***People (DPP) v Murray [1977] IR 360

    • Here, Henchy J endorse the American Model Penal Code to as to define recklessness. As such, it was stated that “[a] person acts recklessly with respect to a material element of an offence when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct.”
    • Interestingly the Court noted that a subjective or objective approach may be taken. 
      • Objective:
        • D must recognize the risk of harm and run it.
        • OR – Does not out their mind to the risk, where the reasonable person would have seen the risk.
      •  Subjective
        • Only asks the question of what the defendant saw/sees.
  • ***People (DPP) v McGrath; Cagney [2008] 2 IR 111 (SC)
    • Both people were involved in homicide. Both were charged with manslaughter as well as reckless endangerment. Under the Offences Against the Person Act 1997 – they were only convicted of reckless endangerment.
      • Question of law was sent to the SCt, which was whether they fell into this category of reckless endangerment.
    • Geoghegan J:
      • “where recklessness is a constituent of a criminal offense in Ireland, the leading authority on its meaning is The People v Murray. The judgments of Henchy… make it clear that the required mens rea for the purposes of recklessness as to consequences is subjective and not objective.”

As seen, **McGrath clears up the issue surrounding objective vs. subjective.

(3) Knowledge

Knowledge is positive and correct belief that the circumstances of the offence existed.

  • ***Hanlon v Flemming [1981] IR 489 (SC)
    • Dishonest receipt of stolen goods. A component of the offense of receiving stolen goods, is the knowledge that they are stolen.
    • The court distinguished between knowledge of the facts and belief of the facts.
    • Court also distinguished between different levels of knowledge
      • Actual Knowledge – This is all that is required. It can be proven circumstantially, and is the knowledge that any reasonable mind would possess given the circumstances.
      • Direct Knowledge – Standing in front of a shop, someone comes along and smashes a window and they steal the goods in front of you. You have direct knowledge that those goods are stolen (witnessed the act).
        • This level of knowledge is NOT required – you do not have to have seen the goods being stolen to be committing a criminal offense.
    • The court also noted that while knowledge and belief frequently coincide, you might be able to believe something to be correct, without actually knowing it to be true – this is the necessary distinction between belief and knowledge. The point is that mere belief will not be sufficient.
    • The Common law has consistently equated knowledge with a situation where you close your eyes to the truth – the law calls this willful blindness. So… the jury can infer that you knew, because you have deliberately chosen to ignore the reality of the situation.
  • ***People (DPP) v Foley [1995] 1 IR 267
    • Foley was arrested in a property where a number of guns were found. Property was a small bed sit (a room) – there were a number of guns, including one in plain view, on the bed that he was sitting on at the time of arrest. He was convicted of possessing firearms, in the context in which he refused to answer (provided no explanation as to why the weapons were there or what he knew about them). The Court of Criminal Appeal said that the court was entitled to infer that he was in possession of the firearms, in the absence of any alternative explanation.

We see through these two cases (Hanlon and Foley) that there are different levels of knowledge (actual and direct) and that the distinction between belief and knowledge is necessary to determine. Also, it is seen from Foley in particular that in the absence of any other explanation, the Court may infer knowledge.

(4) Negligence

Negligence is conduct that departs from the standard to be expected of reasonable and prudent people.

It is an objective standard. However, the jury is able to reflect on the position that the defendant found themselves in (they will have regard to the D’s circumstances), so, if you are responding to an emergency call, your standard might be less than in normal circumstances.

Nearly all crimes in this area are minor crimes, such as road traffic offenses. An example – Gross Negligence Manslaughter – it is not a minor offense, and therefore uses a different measure of negligence. The word ‘gross’ indicates this.

Another example: L’Acquila Earthquake Case, Italy.

Negligence is not completely different from recklessness, in terms of running risk. The risks must be unjustifiable etc. So, a surgeon might proceed with a risky situation to save someone’s life, if the necessity means it can be allowed – however a surgeon should take all reasonable precautions – so it is not just about the risk that your are running, but how you run the risk.

**The reasonable person, who the D is being judged against is given the same level of knowledge and experience as the D. This goes the opposite way too, in terms of lack of knowledge. 

  • ***R v Lamb [1967] 2 All ER 1282

    • Man accidentally shoots friend (did not know how the revolver of the gun worked). He is charged with manslaughter and convicted. There is evidence that the D had no malice – and that both D and victim believed the gun to be safe.
    • Held: No mens rea and therefore he was acquitted.
  • **Brown v US 256 US 335 (1921)
    • Per Holmes J: “detached reflection cannot be demanded in the presence of an uplifted knife.”

(5) Mistake

There are two types of mistake:

  • Mistake of law
    • **DPP v Morgan – ignorance of the law is no excuse
  • Mistake of fact
    • ***The People (DPP) v Healy [1990] ILRM 313 – “if it were otherwise, there would be a premium on ignorance”

(6) Strict Liability Offences

These are offenses which do not require mens rea for any part of the offense.

E.g. recently repealed offences of defilement of a girl under the age of 15 and under the age of 17: s. 1 and 2 of the Criminal Law (Amendment) Act 1935.

The difficulty with strict liability offences is illustrated by the successful constitutional challenge raised against s. 1 of the 1935 Act in **C.C. v Ireland & Others [2006] 2 ILRM 161.

Topic 3 – Public Order Offenses

Topic 4 – Criminal Damage: Recklessness

i) Criminal Damage

Section 2 of the Criminal Damage Act 1991 states:

  1. A person who without lawful excuse, intends, or is as so reckless, damages property belonging to another, shall be guilty of an offence.
  2. A person who damages another’s property without lawful excuse;
    1. Intending to damage or is so reckless, and
    2. Intending or being reckless so as to endanger the life of another

Shall be guilty of an offense.

The use of “with the intention or is reckless as to…” is a classic description of the requisite mens rea for the offense of criminal damage.

Note: Arson (deliberately setting fire to property) is within this statutes ambit, however, it is regarded as a more serious offense since fire knows no boundaries.

 Some definitions include:

  • “Property” – Tangible property & data
  • “Damage” – Destroy, dismantle, deface, render inoperable/Data: Add to, alter, corrupt, erase, move etc.

ii) Recklessness

Recklessness: Where a person does not intend to cause a harmful result but takes an unjustifiable risk of causing it.

— Subjective Recklessness

The test in Ireland is a subjective test.

The key case to consider in Ireland is:

  • *****People v Murray [1977] IR 360
    • SEE POWERPOINT
    • This case made it clear that the requisite mens rea for the purposes of recklessness as to consequences is subjective and not objective.
  • **People (DPP) v McGrath; Cagney [2008] 2 IR 111 (SC)
    • This case affirmed the subjective test for recklessness in Ireland and also went on to note, per Hardiman J that “[for] the state of recklessness in general… an element of advertence is required.”

 — Objective Recklessness

  • ***R v Caldwell [1981] 1 All ER 961 (Caldwell Recklessness)
    • Note: This case is no longer part of English law and not a part of Irish law.
    • Defendant, after being fired from his hotel job, and while drunk, set fire to the hotel. Recklessness in criminal law does not require the defendant to subjectively appreciate the risk of causing damage, it would also be satisfied if they failed to see an obvious risk.
      • HofL defined recklessness as:
        • (a) D performed an act that created a serious risk of harm
        • (b) either; (objective tests now applied)
          • i) he recognized that there was some risk of that harm occurring, but nevertheless went on to take it
          • or
          • ii) he did not even address his mind to the possibility of their being any such risk and the risk was in fact obvious.
    • This objective test seems understandable yet there is one significant problem. What about the case of children, or those people who cannot understand certain risks (e.g. mentally ill persons). They would be caught in this legal black-hole as it were with the courts having seemingly no way out of prosecuting such an individual.

Nevermind the issues with this **Caldwell test, this next case tightened the test:

  • **R v Lawrence [1982] AC 510
    • Rephrased the Caldwell test to read “obvious and serious risk” as opposed to “obvious” risk

The issues with the strict objective Caldwell test was exposed quite egregiously in:

  • ***Elliott v C [1983] 2 All ER 1005
    • 14-year-old defendant who was educationally subnormal, sleep deprived and cold, in order to get warm, set fire to a garden shed. She was charged with criminal damage.
    • Held: Trial judge acquitted her based on her age, subnormal education and circumstances. However, on appeal, the HofL held: “if the risk of damage was obvious to the reasonable, prudent man, then you would be guilty of criminal damage, even if you had not thought of it, or could not think of it.”

This created a purely objective test which lasted from the 80s till 2003, until:

  • ***R v G and R [2003] 4 All ER 765 (HL)
    • Boys aged 11 & 12 went camping, set fire to a wheelie bin which subsequently led to the burning down of a supermarket, causing £1 million in damage. Convicted of arson, but a question was put to the HofL.
      • Can a defendant properly be convicted under s.1 of the Criminal Damage Act 1971 on the basis that he was reckless as to whether property was destroyed…etc?
      • Held: Objective test is wrong.
    • A new test was put in place:

“A person acts recklessly with respect to:

(i)         a circumstance when he is aware of a risk that exists or will exist;

(ii)       a result when he is aware of a risk that it will occur;

and it is in the circumstances known to him, unreasonable to take the risk.”

— Recklessness and Alcohol

  • If a defendant was voluntarily intoxicated, they may not rely foresight.
    • The act is deemed reckless if it is one the defendant would have foreseen if sober.

The reason why this is the case is that being intoxicated is a reckless act in and of itself. There are also policy reasons for this: most offenses occur while the defendant is intoxicated. It is almost better to say that you were sober.

Bingham LJ in **R v G and R specifically mentioned intoxication in his dicta.

  • If you are intoxicated, you cannot say that you did not foresee the consequences.

iii) What is Lawful Excuse?

Pursuant to s. 6 of the Criminal Damage Act 1991:

A person shall be treated as having lawful excuse where:

  • Section 6(2)(a) – the person he believed had entitlement to consent had done so, or would have consented to it;
  • Section 6(2)(c) – if he damaged or threatened to damage property in order to protect his or another’s property, where the offence is reasonable in the circumstances.
  • Section 3it is immaterial whether a belief is justified or not if it is honestly held.
  • ***Jaggard v Dickinson [1981] 2 WLR 118
    • Drunk defendant, Stumbled back to her friend’s house, could not get in so broke the window. Issue here was that this was not her friend’s house, she was mistaken. She said she honestly believed it was her friend’s house and her friend would have consented.
    • Held: D had an honest belief. Intoxication did not prevent the defense from working.
  • ***R v Denton [1981] 1 WLR 1446
    • Defendant set fire to machinery in factory. The whole plant burnt down. He claimed he had consent from the owner (who wanted to commit insurance fraud).
    • Held: Defendant had requisite consent
    • There was significant criticism of this case due to the criminal outcomes of it. It was described in ***Kelly as social anarchy if this would prevail.
  • ***DPP v Mary Kelly [2011] IECCA 25
    • Woman took axe to American war planes in Shannon. Argued she has lawful excuse to protect innocent people in Iraq.
    • Jury was hung at trial.
    • Held: regardless of removal of requirement of “immediate protection” law in 1997, she was convicted.

Topic 5 – Homicide: Murder

The classic definition, as given by Chief Justice Coke in 1640 provides:

Murder is when any man of sound memory and of the age of discretion, unlawfully killeth within any county of the realm, any reasonable person in rerum natura under the King’s peace, with malice aforethought either expressed by the party or implied by law, so as the party wounded or hurt, etc. die of the wound or hurt, etc. within a year and a day after the same”

i) The Actus Reus of Murder

1 – Sound mind & ages of discretion

The defendant should be legally sane – you can not be found “not guilty by reason of insanity”. – Criminal Law (Insanity) Act 2005, s. 5

Also, the defendant should have reached the age of criminal liability.

  • 10 and 11 for murder, manslaughter, rape and aggravated sexual assault
    • Children Act 2001, s. 52 (amended by the Criminal Justice Act)
  • 12 and over for most offenses

In practice, this young age for murder is very rare. The normal trigger point is 12. Any prosecution for child under 14 yrs, the DPP must give consent to prosecute – so there is a sense of discretion. Also, if you are convicted as a child of murder, you would spend the early part of your sentence in a children’s detention center. Also, the sentences are not usually mandatory life sentences. 

2 – Unlawful killing

Lawful killing includes such things as self-defence.

How do we prove death?

  • Cardio-respiratory of death
  • Brain stem death
    • Airdale NHS Trust v Bland [1993] 1 AC 789

The ‘within a year and day’ rule existed for a number of reasons:

  • Causation (keeping a tight time period allowed for a simpler way of assessing whether the actions of the D caused the death)
  • To prevent  offenders hanging on and being subject to liability if someone died a long time afterwards.

However, this rule has now been abolished, prospectively pursuant to s.38 of the Criminal Justice Act 1999

  • First case of this took place the end of last year. (2011)
  • There are no safeguards in Ireland for protecting against 2nd prosecutions on the same facts.

The ‘In Rerum Natura’ Rule still applies:

  • ***Attorney General v X [1992] ILRM 401

    • This case is interesting because traditionally, the fetus was not considered and individual living human being. Only on birth would killing it relate to homicide. 
    • Against this historic preconception, there is Art. 40.3.3 which protects the life of the unborn. Therefore it is unclear whether this amendment has changed the traditional definition of murder to include an unlawful killing of the unborn. What we do have to determine this  is the judgment in The X case. However there are conflicting rulings:
      • McCarthy J: described a foetus as a “life contingent” (living in attachment to its mother).
      • Hederman J: described it as “no less a human being than a born child”
    • This means that there is potential in the Irish jurisdiction where someone who carries out an illegal abortion to be prosecuted for murder. What is more relevant is where someone carries out an attack on a pregnant woman and her unborn child subsequently dies. 
  • ***R v Kwok Chak Ming [1963] Crim. LR. 748
    • Hong Kong Case (still a protectorate of the UK) – here a pregnant woman was stabbed. Child was born alive but subsequently died as a result of the stabbing.
    • Held: If all the necessary elements of the offense were re-sent, a defendant could be convicted of either murder or manslaughter.
  • *****Attorney General’s Reference No.3 of 1994 [1998] AC 245

The ‘Doctrine of Transferred Malice’ operates to marry the actus reus and mens rea of the same crime where they coincide. This doctrine is based on policy reasons, as opposed to any logical justification.

  • ***R v Latimer [1886-90] All ER 386
    • D was a soldier. Got into an argument with a man in a pub. Took off his belt and swung it at the man. He missed and wounded the landlady.
    • Held: Court says, malice is to be transferred. He was convicted.
  • ***R v Mitchell [1983] 2 All ER 427
    • D and another man were in the post office and got into a fight. D pushed the other man who fell onto an old lady. This caused her injuries from which she later died.
    • Charged with manslaughter and convicted. The intention to commit the assault on the intended victim is transferred to the lady and because in manslaughter you just have to have found a dangerous and unlawful act, it could become manslaughter.
      • This is stretching the doctrine a fair amount. 
  • ******R v Pembilton (1874) LR 2 CCR 119
    • Defendant threw a large stone at a group of people. He missed the people and broke a window. He was charged and convicted of criminal damage. This conviction was quashed however
      • Why does the doctrine not apply here? This is because you cannot transfer intention from one offense to another type of offense. 
        • Intention to harm person (assault) cannot be transferred and become(criminal damage).
  • *****Attorney General’s Reference No.3 of 1994 [1998] AC 245
    • Issue: If you aim an assault at a pregnant woman and you harm the unborn child,  can you malice be transferred?
    • Background: A 24 week pregnant woman was stabbed and badly injured by her boyfriend. The boyfriend knew she was pregnant with his child and the result of the assault was that the child was born grossly premature (24 weeks) – potentially viable but in most situations a child born at this stage will not survive. Child lived for 121 days and died not as a direct result of the stabbing, but due to premature birth issues relating to the development of its lungs.
    • Pleadings: Father pleaded guilty to the offense of attacking the mother (before the child died) – after the child died, he was charged with murder.
      • From the evidence, it appeared that his intention was solely to harm the mother, and no intention to harm the unborn child.
      • Case stated: “can the accused be found guilty of murder – is it possible?”
    • Given that we know you cannot be found guilty of killing a fetus, the court had to use two legal fictions.
      1. Doctrine of Transferred Malice, combined with;
      2. Mother and a fetus are in principle/theory, one entity.
    • The prosecution argued that if you combine these two legal fictions, you can find him guilty of murder.
    • However, the court said they cannot stand by the idea that the mother and child are one entity (different DNA etc). This legal fiction was thrown out.
    • Having dismissed, they had to try and apply, a double transferred malice.
      1. From the mother to the fetus, and then from the fetus to the born child.
      2. However, they said this was too great a leap – too remote.
    • Causation is not the same as Transferred Malice
    • Because the intention was directed solely at the mother and not at the fetus, he could not be tried for murder.
    • So, can it be manslaughter? Yes.
      • Despite the fact that the fetus was not a living person at the time of attack, the mens rea for manslaughter is not intention. The mens rea for murder can include an act which is unlawful and what a reasonable person recognizes that it creates a harm of causing risk to another person. This comes to the point about if you attack a pregnant woman you are running a risk of harming the fetus.
    • This is still a double transfer of malice – so recklessness can be double transferred but not intention. – albeit in a less serious scenario.

Manslaughter is a kind of mop-up offense.

  • No prosecution like this has been made in Ireland. However there is an inquest ongoing and due to be held at the end of 2012.
  • Given the Irish abortion laws and art. 40.3.3 – it may be easier to convict for murder in Ireland, but we still are very unsure of this.
  • In the US, there have been prosecutions for the murder of unborn children. (certain states) – others allow for prosecutions of mothers who attempt suicide or take drugs.

Indiana case – woman attempted suicide. Child died as a result and she is facing life imprisonment for the murder of her unborn child.

Causation, is necessary to prove that the accused’s actions accelerated the victim’s death.

  • ***R v Dyson [1908] 2 KB 454
    • Background: Father committed a serious assault on his infant child. Child was already suffering from meningitis and the evidence was that they would have died eventually anyways, from the meningitis.
    • Held:  This did not prevent the father from being found guilty from manslaughter because the injuries he inflicted were the main cause of death. (Due to year and a day rule, he was acquitted as the child died 2 years later – this would not happen today however)
  • ***R v Blaue [1975] 1 WLR 1411
    • This case affirms the proposition that the victim does not have to accept medical treatment in the event of an attack on them – even where this rejection leads to their inevitable death. (Jehovas witness refusing blood transfusion on religious grounds)
  • **R v Jordan (1956) 40 Cr. App. R. 152
  • **R v Smith [1959] 2 All ER 193
  • **R v Cheshire [1991] 3 All ER 670
    • These 3 cases above all affirm the proposition that the  wound must be the operating cause of death. 

ii) Mens Rea of Murder

The mens rea for murder is intention to cause death or serious injury. 

The definition of mens rea is very important as it defines who falls into the category of murder – and this is obviously a serious issue as it is one of the most serious crimes that one can commit.

In Coke CJ’s original definition, foresight was required. Now however, we have a statutory definition of mens rea.

Criminal Justice Act 1964, s.4:

  • s. 4(1) – Where a person kills another unlawfully the killing shall not be murder unless the accused person intended to kill, or cause serious injury, to some person, whether the person actually killed or not.
  • s. (2) – The accused person shall be presumed to have intended the natural and probable consequences of his conduct; but this presumption may be rebutted.

Proof of an actual intention to kill or seriously injure is critical because this is distinguishes manslaughter from murder.

The statute also deals with transferred malice and the test is clearly identified as subjective. Section 4(2) deals with oblique intention.

The Law Reform Commission in Ireland has suggested Ireland adopt the English Criminal Law approach to murder – their approach is similar, but they have a lot more cases than we do. 

–English Case Law on Murder

The cases below center on oblique intent.

  • ***Hyam v DPP [1974] 2 All ER 41

    • Love triangle – accused poured petrol through front door of rivals house and set fire to it. Two people in the house died. At trial she said she did not intend to kill or cause serious injury, she only intended to frighten.
    • Held: Guilty of murder – The test used in this case was: foresight of consequences being highly probable. This was sufficient to establish intent.
  • ***R v Moloney [1985] 1 All ER 1025
    • Soldier was up late  drinking with his stepfather (their relationship was very good) – they were also drunk. They decided to have a competition – who can load a shotgun the fastest? Mr. Moloney won. Father said “you don’t have the nerve to pull the trigger do you?” – Mr. Moloney then shoots his stepfather. He was very distraught as he did not want to kill his father.
      • If we were to use the Hyam test, would Mr Moloney have foresight? – He was acquitted of murder.
  • ***R v Hancock and Shankland [1986] 1 All ER 641
    • Miners strike. Scabs were being transported to the mines (via taxis) to the mines. Hancock and Shankland went onto a motorway bridge and decided to drop a concrete block off the bridge to create a fearful situation.
    • Their defense was that they did not aim it at the vehicles – yet it landed on top of a taxi and killed a taxi driver.
    • Held“…the greater probability of a consequence the more likely it is that the consequence was foreseen and… if that consequence was foreseen the greater the probability is that the consequence was also intended.” (Per Lord Scarman)
  • ***R v Nedrick [1986] 3 All ER 1
    • Facts similar to Hyam.
    • Court said: was death or serious bodily harm a virtual certainty? Did the D foresee that consequence?
    • Here, we are therefore looking at something different. Ms. Hyam would probably not be convicted of MURDER under this test – Nedrick was convicted of manslaughter.
    • The virtual certainty standard is a much higher standard.

The current test in England is:

  • *****R v Woollin [1998] 3 WLR 382

    • Defendant lost his temper and threw child to the floor – causing serious head injuries.
    • Held: The jury is entitled to find the necessary intention if 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 D realized such was the case, but should be reminded that the decision is one for them  one a consideration of all the evidence.

So, the English test is:

  • The accused acts to kill or cause serious harm (Direct intention) OR the accused kills or causes serious harm as a means to another end (by-product of another end) that they try to bring about AND their conduct is virtually certain to cause that death or injury AND they appreciate it (see those consequences). 

–Irish Case Law on Murder

  • ***The People (DPP) v Murray [1977] IR 360
    • Held“To intend to murder, or to cause serious injury is to have in mind a fixed purpose to reach that desired objective. Therefore, the state of mind of the accused person must have been not only that he foresaw but also willed the possible consequences of his conduct.”
  • ***DPP v Douglas & Hayes [1985] ILRM 25 CCA
    • Background: Both applicants were appealing against conviction in the Special Criminal Court, of what is an attempted murder charge under the Offenses Against the Person Act 1861. In attempted murder, the prosecution must prove that you intended to murder the person – there is no consideration given to ‘attempted harm’.
      • “Unless the accused expresses his intent, his intent can only be ascertained from looking at his actions and the surrounding circumstances.”
    • The Court upheld that foresight and recklessness could not be equated with intention, but they might, in particular circumstances, constitute evidence from which an inference of intention could be drawn.
    • The court can drawn the inference of intention, but does not have to.
      • “… would have foreseen the natural and probable consequence…” – it is similar to the English test of “virtual certainty” but it is considered to be more lax (wider). 
  • ***Clifford v DPP [2008] IEHC 322
    • Accused was involved with a criminal activity with “an intent to commit a breach of the peace”.
      • Note: the closer the conduct comes to achieving the consequence, the more likely we are to infer that it was intended.
      • “the more obscure the consequence, the less readily can the inference be made” – this is similar to the English R v Hancock and Shankland case.
    • However, even if it is highly likely or inevitably likely – it is not a mathematical formula – consideration must be given to all the relevant circumstances and it is ultimately the courts discretion.
      • “It is a matter of judgment for the court”

–Intending the Natural and Probable Consequences

Section 4(2) of the 1964 Act deals with this presumption.

  • ****DPP v McBride (29/01/1996, unrep) CCA
    • The accused here was fixated on a young work colleague. She shared a house with her boyfriend. The accused went to visit the house, had an argument at the front door with the boyfriend, he closed the door whereupon the accused shot through the door with a shotgun, thereby killing the victim.
    • One of the things that the jury had to consider was whether the State had satisfied them beyond reasonable doubt that the presumption had not been rebutted. … It was for them to decide if it affected their view as to whether he had the necessary intent.
      • Using s. 4(2) – we assume that the natural and probable consequence was death or serious injury. However, the accused argued he shot it accidentally.
        • Judge had to direct the jury as to how they understood S. 4(2) – here, there is a two stage process:
          1. Consider whether death or serious injury was a natural and probable consequence of the defendant’s acts?  (if they answer no, then no intention can be inferred) – if they say yes, it continues to step 2. Jury can conclude, if they say yes, that the accused intended the consequence.
          2. Has the accused rebutted by providing an alternative explanation, this presumption? If he has, has the prosecution rebutted the rebuttal?
      • The rebuttal here was not seen as convincing.

–Reform Proposals

Report on Homicide: Murder and Involuntary Manslaughter, Law Reform Commission recommedned the following definition of “intention”:

  • A result is intended if:
    • i) It is the defendant’s conscious object or purpose to cause it; or
    • ii) He is aware that it is virtually certain that his conduct will cause it, or would be virtually certain to cause it if he were to succeed in his purpose of causing some other result.

The LRC also provisionally recommended expansions of intention to include a person who is so reckless as to manifest extreme indifference to the value of human life. This was taken from the American Penal Code.

But, there are criticisms to be had with the LRC’s proposals. Such questions arise as to what would be extreme indifference? Recklessness? Would this in a sense blur the murder/manslaughter categories. 

–Intention to Cause Serious Harm/Injury

The LRC recommended in 2007 that the term “serious injury” should remain undefined.

–Punishment for Murder

The Criminal Justice Act 1964 abolished the death penalty in relation to murder excepting capital murder.

The current sentence is mandatory life sentencethe judge has no discretion in recommending how long someone serves for murders. This is on average, 17.5 years.

The Minster for Justice decides parole – which is recommended by the Parole board

  • This has its problems – should politics be involved? – Should the parole board be given a final say?
  • Even on parole, you are released on license which has certain conditions – e.g. reporting to Gardai station etc – if you breach the conditions you can be recalled back to prison without trial etc.

The mandatory sentence – there are only two other areas with these, apart from murder

  • Drugs
  • Firearms

Judges do not like mandatory sentences – in almost all cases, they distinguish the case and engage in discretionary sentencing.

Topic 6 – Homicide: Manslaughter

Manslaughter covers all unjustifiable killings of adults and children that are not murder, apart from infanticide and suicide. There are two types of manslaughter:

  1. Voluntary manslaughter
  2. Involuntary manslaughter

i) Voluntary Manslaughter

This is where the accused had the requisite mens rea for murder but there are mitigating circumstances such as:

  • Provocation
  • Self-defence – using more force that was reasonably necessary but no more than he genuinely believed was necessary.
  • Diminished Responsibility

Provocation is only  a defense to murder – nothing else.

ii) Involuntary Manslaughter

This is where the accused killed but did not have the requisite mens rea for murder. This can occur in the following ways.

  1. By an unlawful and dangerous act.
  2. By a willful failure to perform some legal duty (Contract?).
  3. By a lawful act performed with gross negligence.

iii) Voluntary Manslaughter – Provocation

In essence, the defense of provocation is a sudden and temporary loss of self-control that renders the accused incapable of preventing him/herself from committing a homicide.

  • *******The People (DPP) v MacEoin [1978] IR 27
    • This is the KEY CASE FOR PROVOCATION
    • What was made clear is the defendant must have intended to cause death or Grievous Bodily Harm (GBH) – and the reason why they intended it was because of the relevant provocation – if you perhaps act in an involuntary way you may not be acting under your own control.
    • Provocation is ONLY a defense for murder. It does not work anywhere else. But why do we have it for murder? – this a concession for human frailty-in a way that you would not normally react.
    • When we talk about being incapable of stopping yourself, this does not mean you have lost consciousness – you are still aware of what you are doing and you have the intention to do it. (you have the mens rea for murder)

The classic definition of provocation comes from an older English case however:

  • ***R v Duffy [1949] 1 All ER 932
    • D killed her husband after an extended period of domestic violence. Whilst he was asleep she killed him with a hatchet. (this was not a sudden and temporary loss of control) – “provocation is some of act or series of acts done by the dead man to the accused, which could cause in any reasonable person, and actually causes in the accused a sudden loss of self-control rendering the accused so subject to passion as to make him or her for the moment not the master of his mind.” Per Devlin J.

— The Irish Subjective Approach to Provocation

  • ********The People (DPP) v MacEoin [1978] IR 27
    • Facts: D and victim were friends, but also heavy drinkers. They shared a house. On that night they drank 15-20 pints. D went to bed. Victim carries on drinking. It’s well known that the victim, when drinking, gets loud and aggressive. Victim comes into D’s room, with a hammer in hand. D gets the hammer, hits the victim and carries on hitting him until dead.
      • It is often the case that the victim has some degree of responsibility for what happens – they created the moment of anger/crisis. – this is another reason for allowing this defense.
    • Held: D is convicted of murder at trial and appeals – his main reason for appeal was because of the direction the trial judge gave to the jury: he said that ”provocation must have rendered the defendant incapable of forming intention.” – this is incorrect.
      • On appeal Kenny J cites **Moffa v The Queen and Murphy J’s lenghty criticism of the objective test. “But what are the characteristics of the reasonable man?” “He should have lived the life of the accused.”
      • Kenny J also cites the law on self-defense as noted in AG v Dwyer – where it was held that when self-defense is raised, the correct charge to the jury is that if they come to the conclusion that the accused used more force than was reasonably necessary, but no more than he honestly believed, they should return a verdict of guilty of manslaughter.
      • Kenny J cites academic criticism in the form of Smith & Hogan and Professor Glanville Williams.
        • The court/jury should have regard to the accused’s temperament, character and circumstances. Also, if the prosecution prove beyond reasonable doubt that the force used was unreasonable and excessive having regard to the provocation, the defense of provocation fails.
    • Part of this judgment was based on the consensus that provocation can never result in an acquittal, it can only ever result in a charge being reduced to manslaughter.

Even the English courts had recognized that the objective test was somewhat hard to swallow: The “objective test is profoundly illogical”, it should be subjective:

  • ***R v Bedder [1954] 1 WLR 1116.
    • Defendant tried to have sex with prostitute – he was impotent however. The victim taunted him about his failure to perform. They got into a physical fight which involved her punching him and him stabbing her. She died.
    • Held at first instance: that the jury should consider the effect of the taunts and violence upon D without considering his impotence. – this is strange however as his impotence is directly related to the violence.

Nevertheless, as England tried to determine the best test to be used, the ***MacEoin approach was confirmed in Ireland in a series of cases:

  • **The People (DPP) v Noonan [1998] 2 IR 439
  • **The People (DPP) v Kelly [2000] 2 IR 1

However, both these cases, although affirming the subjective approach that should be taken hinted at introducing an objective element.

  • They say that the jury can consider the reasonableness, by using common sense, and experience of life in deciding whether or not they are convinced by D’s evidence – it is basically a credibility issue.

The next two cases, provided obiter that perhaps the MacEoin approach is a little extreme and there are policy issues that might warrant an objective element being brought in as a secondary check on the subjective test.

  • ***The People (DPP) v Davis [2001] 1 IR 146
    • Facts: Accused is a white supremacist. Someone of another race  comes and talks to him. He is offended so much, he kills them. He said in court that he believed that this was a truly terrible thing for someone to do to him – but has D suffered a “sudden and temporary loss of self-control”? – in the subjective test we don’t ask what may be reasonable.
    • Obiter: ***MacEoin was an extreme standard of subjectivity. Court suggested that it might be appropriate to put limits on this.
  • ***DPP v Curran [2011] IECCA 95 (CCA)
    • Court expresses concern about the subjective test: “it is important that the structure of the defense is maintained… and that all the elements of the defense, and in particular those features which true provocation form mere uncontrolled rage, are maintained.”

Law Reform Commission – Consultation Paper on Homicide 2003

  • Noted that Ireland is the only jurisdiction in the world with a purely subjective test.
  • Recommended a shift away and that the defense should go back to its basics – only be available when the accused was responding to actions or words of accused.

LRC, 2009, Report on Defenses in Criminal Law

  • Recommended that the defense be based primarily on whether the provocation was such that it was reasonable for the accused, based on the standard of an ordinary person to have lost self-control.

The 2003 Report seems more in keeping with the criticisms expressed by the Kenny J in MacEoin. In the 2009 Report, the approach is seemingly reverted to an objective test. Recommending a shift away, and letting the defense, based on a subjective approach, only be available when responding to the acts or words of the accused will settle quickly cases such as Davis.

The 2009 Report does not keep in mind the heavy criticisms placed on the objective approach. 

iii) Has the Defendant lost his self-control as a result of something said or done?

This is a question of fact.

But, what is “loss of self-control”? (Don’t forget, intention must still be present)

  • ***R v Richens [1993] 4 All ER 877
    • D was a 17 year old student who killed a fellow student who he thought had raped his girlfriend.
    • Court stated that the provocative conduct of the victim must lead to a sudden and temporary loss of self-control resulting in D not being able to restrain himself, but he must still know what he is doing.
      • D must be unable to restrain himself but still know what he is doing
        • This can be contrasted with the Cocker case
  • ***R v Cocker [1989] Crim Lr 74
    • D suffocates his wife. She was suffering from a terminal illness and she had repeatedly asked him to kill her. His argument was that he kept refusing until he snapped, lost self-control and smothered her. He said that he was provoked by her endless pleas.
    • Judge said the jury cannot consider this defense – as a result they could only bring in one verdict which was guilty of murder – the jury took an unusual step and wrote a letter to the judge protesting about what they had been forced to do – they saw it was unfair.
    • Held: Court of Appeal held that the trial judge was correct; that loss of self control was about “losing temper” or “being angry” – and not another kind of emotion. On the evidence, D had not lost his temper, but succumbed to endless pleas (pity, love, mercy etc.). This tells us that the courts can be unimaginative.
      • But this confirms that the loss of self-control is anger-related uncontrolled, flailing violence.
      • Mercy killings cannot come under the provocation defense. 

– Caused by Something ‘Said’ or ‘Done’

[1] The ‘thing’ does not have to be done/said by the victim.

  • ***R v Davies [1975] QB 961
    • Accused shot and killed his wife who was being met by her lover. Trial judge told the jury that the source of the provocation could not be the lovers action of walking towards the wife. However, the Court of Appeal disagreed and said the action did not necessarily have to be that of the victim.

In Ireland, given we have an entirely subjective test that it would make sense that the deceased does not need to be the source of the provocation. All that matters is that the accused was provoked – this was agreed with in:

  • ***People (DPP) v Doyle 
    • Accused claimed that his former partner had informed him that his daughter was being sexually abused by someone (3rd party). Accused was worried about this and eventually convinced himself that the source of this abuse must be his ex-partner’s new boyfriend. He goes over to the house, enters and kills a man who was sleeping upstairs.
    • The victim was not his ex partner’s boyfriend, but just someone who happened to be visiting (mistaken identity). He went with FOUR FRIENDS – this suggests that provocation is diminished with the delay.
      • Quite clearly the provocation is  from his ex-partner – the only connection between her and the victim is that he is sleeping in her house (remote) – clearly here is a situation where the provocation has nothing to do with the deceased.
      • Case tells us that the provocation does not have to come directly from the victim.
        • There is a limited element – clearly when the accused killed the victim he thought he was killing the person who abused his daughter (mistaken identity).
        • The case can turn on a very particular set of facts here (peculiarities).
        • Argued very particular set of facts. CCA raised concern over possible delay being too long. He did not successfully argue his defense. It does not necessarily matter if the provoking act comes from a 3rd party…

However, in contradiction to this:

  • ***DPP v Delaney [2010] IECCA 123 (CCA)
    • “it is an essential feature of the defense that the provocation must come from the deceased.”

[2] The loss of control has to be provoked.

  • ***R v Acott [1997] 1 WLR 306
    • D killed his mother. He was 48 and financially dependent on her. Facts show that he had lost control, but there was no evidence of a provoking act or word.
    • Held: Provocation is that which is provoked, not just having a bad temper etc.

If a defendant suddenly “flips” – this is not provocation – there may be issues around diminished responsibility but there is no defense of provocation. Just because of irritation/annoying circumstance, provocation will not be found.

However, this can be contrasted with

  • ***R v Doughty (1986) Cr App R 319
    • D killed 17 day old son (he was good father up until this point) – however, the child cried constantly. Evidence was that he lost self-control – he flipped. He tried to stop the child from crying from placing a pillow over its head – the child died.
    • He claimed provocation. (losing self-control)
    • Trial judge refused to accept a claim that a child crying could be a provoking act. “crying is neither a thing said or done – crying must be endured – it is of nature”. He was convicted of murder – appeal for provocation was rejected.
      • Court of Appeal then said that the law was not limited to words or actionsit encompassed any action that could loosely be termed provocative and could therefore include a baby crying.
      • The important question here is: “was the accused provoked into losing his self-control.”
        • Because there is a causal connection here between the baby crying and D’s actions, it should have been put to the jury.
        • Held: His conviction was quashed.

iv) The loss of self-control’ must be ‘sudden and temporary’

The longer the time-lag, the more the element of pre-meditation will be seen by the court/jury.

a) Classic Position

Originally the defendant had to kill immediately in response to provocative act.

  • ***R v Duffy [1949[ 1 All ER 932
    • Distinction drawn between provocation and revenge
    • The issue is what is the time frame: how long is too long? When does immediacy start to turn into something more calculated.
      • This issue has come to head in a series of domestic violence cases.
      • “circumstances which induce a desire for revenge are inconsistent with provocation, since the conscious formulation of a desire for revenge means that the person has had time to think, to reflect, and that would negative a sudden temporary loss of self-control which is the essence of provocation.” (Lord Devlin at 932)

b) The ‘Slow Burn’ Reaction

  • *****R v Ahluwalia [1992] 4 All ER 89
    • Facts: Accused in this case had endured years of abuse from her husband, both physical and psychological. On the night in question he taunted her about having an affair and said that he was going to beat her up in the morning (common threat by him which he usually acted on) and then he went to bed. Once he was asleep, she got a can of petrol and set fire to him, killing him.
      • At trial, she claimed provocation. She was convicted of murder because she had waited for him to go to sleep  – there was a ‘cooling off’ period.
    • This was appealed to the Court of Appeal – said that the longer the gap in time between the provocative act and the killing, the less likely the jury is to believe that the defendant had lost her self-control at the time of the killing as a result of provocation.
      • However the court did say that it was possible to have a ‘slow burn’ reaction, whereby D suddenly snaps sometime after the last act.
        • You are still required to have a sudden and temporary loss of self-control – but it may not necessarily be immediate, it can be delayed – there must be some medical evidence etc. as to the delayed reaction.
        • In this case, she was acquitted of murder but found guilty of manslaughter, not on the basis of provocation, but on grounds of diminished responsibility.
        • Lawyers don’t usually want to argue diminished responsibility, as there is a stigma attached.

What about Ireland? It has been stressed that the act must be “sudden and temporary.”

  • ***DPP v Kelly [2000] 2 IR 1

    • Stressed that there must be no cooling off period.

However;

  • ***DPP v Delaney [2010] IECCA 123 (CCA)

    • Although noting that the action must be immediate, the court went on to say that in battered women cases, where a woman has been subject to prolonged abuse, she may lose self control on a final ultimate, intolerable act.
      • This left open the possibility for the Ahluwalia principle to be brought into Ireland.

LRC Report on Defenses 2009

  • The LRC noted that the fact that the killing was not immediate did not preclude the possibility of the defense being raised – again leaving open the possibility for the Ahluwalia case to be brought into Ireland. 

v) Does the Defendant’s Action Have to be Proportionate?

The general principles is yes, and is an objective test as seen in ***MacEoin

However, it can be confusing:

  • ***DPP v Mullane (11 March 1997, unreported), CCA
    • Did the accused react in a way that bore a reasonable relation to the provocation, as far as the accused’s temperament, character and circumstances are concerned.
      • Is this an objective or subjective test. It is very difficult to tell when the two seemingly overlap. 
      • What should occur is a two-stage process. 
  • ***DPP v Kelly [2000] 2 IR 1
    • This case warned about the proportionality principle in MacEoin. They allowed it in this case not on an objective basis, but instead on grounds of credibility.

vi) Cumulative Provocation

Someone who has been subject to long term abuse, often the triggering act to the violence is a relatively small act. This is where cumulative provocation comes from. Small acts usually take on huge significance, in terms of how threats are perceived.

This bears significant relation to BWS cases (Battered Women Syndrome) – See ***Ahluwalia.

  • ***R v Thornton [1992] 1 All ER 306

    • The background of the actions must be considered – Is this implying a subjective test in England?
  • ***DPP v O’Donohoe (16-19 March 1992, Irish Times, unrep) CCA
    • Violence over 10 years. Defendant got a barring order removing the victim from the family home. She felt sorry and let him back in. Violence continued. She killed him – the court accepted ‘cumulative provocation.’
  • ***DPP v Bell (1999, unrep)
    • History of physical, sexual and domestic abuse at the hands of the deceased – this was allowed to be taken into consideration in terms of how D responded to the provocation of the last act.
      • Although sometimes it may be a trivial final act, it must be viewed from the perspective of D
      • However, it is not enough to prove just a provocative act – there still must be a sudden and temporary loss of self-control. 

vii) Self-Induced Provocation

You cannot rely on the defense of provocation if you have induced it.

  • ***DPP v Kelly [2000] 2 IR 1
    • “the reaction must be genuine in the sense that the accused did not deliberately set up the situation which he now invokes as provocation.”

The defense remains open to an accused if the deceased’s reaction to the accused’s initial provocative conduct is excessive.

  • ***R v Edwards [1973] AC 648
    • Appellant killed the victim who he had been blackmailing. Victim had attacked the appellant with a knife.
    • Privy Council noted obiter that although you might expect a certain degree of hostility from the victim of blackmailing and the person should expect that, if however that hostile response goes beyond what might be expected then it could amount to provocation.
    • Held: The question should have been put to the jury because the victim inflicted painful wounds on the appellant. Was not merely threatening.
  • ***R v Johnson [1989] 1 WLR 740
    • D had made violent threats to the victim. Victim responded by pinning D up against the wall and threatening him with a broken glass. D then produced a knife and stabbed the victim.
      • Series of ever more violent acts.
    • Held: D should have been allowed to raise the defense even though he had initiated the conflict (not that he should have succeeded) – the question should be put to the jury however.

Note:– there are links here with an alternative defense of self defense. – Therefore you can have more than one type of defense.

Kelly suggests that we would not allow the case to be put to the jury on these grounds, but in reality we do not have a case confirming this outright. 

viii) Provocation and Mistake

An honest mistake affords an accused the defense of provocation. The accused is entitled to be tried as if his mistaken assumption were true.

In Ireland, the subjective nature of this test seem to mean even an unreasonable mistake can found the defense: ***DPP v MacEoin.

ix) Should we Expect the Defendant to Exercise Self-Control?

English test for provocation was:

  1.  Has D lost his self-control as a result of something said or done. (subjective test – same as in Ireland)
  2. Was the provocation enough to make the reasonable person do as D did? (objective component of the test)

Look back to MacEoin – as to why the Irish Court of Criminal Appeal found this test­ too restricting.

For a long period of time, we saw the English Courts fluctuating back and forth. S.3 of the Homicide Act 1957 – provided that at least part of the test must be objective. They took the reasonable man and then overlayed him with subjective interpretations relevant to the case (alcoholism, impotence) etc. etc.

  • ***AG for Jersey v Holley [2005] 2 AC 580 (Holley)  Privy Council
    • Last case in England before defense of provocation was abolished.
    • D killed his girlfriend – he was an alcoholic as was she. They had a dysfunctional relationship. She, on the day told him that she had been unfaithful to him. He went and got an axe. She said “you don’t have the guts.” He then killed her.
    • He pleaded provocation saying that in assessing his self-control, the court must take into account his alcoholism so as to argue diminished responsibility.
      • Privy Council said they do not want to hear any more of these cases (alcoholism etc.) where they have to take into account subjective characteristics. This was due to the fact that s.3 of the Homicide Act provides that the test must be objective.
    • Held: We recognize that this test means some people cannot claim provocation – that some people have reduced levels of self-control. In this way you can never meet the reasonable man/objective test.

Provocation, is a very problematic defense, by virtue of its construction and its history. As a result of this case, they abolished the defense of provocation – in England, Australia, NZ etc. They replaced it instead with another defense: Loss of Self-Control.

Coroners and Justice Act 2009 – s.54

To qualify for this defense you must:

  1. Suffer a loss of self-control
  2. Have lost that control by virtue of an attributable “qualifying trigger”
  3. A person of Ds sex and age, with normal degree of tolerance & self-restraint and in the same circumstances of D, might have reacted in the same way.
  • S. 55 – meaning of a qualifying trigger. What are these attributable “qualifying triggers”?
  1. Defendants fear serious violence from Victim against Defendant or another identified person and/or
  2. Things done or said or both which;
    • Constituted circumstances of an extremely grave character and
    • Caused D to have a justified sense of being seriously wronged.

Sexual infidelity is not a trigger.

Challenge to this:

There was a challenge to this:

  • ***Clinton
    • Involved sexual infidelity.
    • D killed his partner and he argued provocation on three bases:
      1. Taunted him about having an affair.
      2. Ridiculed his suicidal tendencies.
      3. She told him she didn’t want the children.
    • Within this context, their relationship was dysfunctional.
    • Judge said that you cannot argue sexual infidelity and the other arguments are not strong enough arguments so you cannot argue anything.
    • He appealed to the Court of Appeal which said:
      • We should let the jury know the context and they should be allowed to think about it (Here, they sneak the infidelity back in-as a contextual factor)
      • The court is subverting the legislation – putting a ground back in as a contextual factor.
      • They basically said that the issue should have been put to the jury for them to decide. 

x) Mistake and Provocation

  • ***People (DPP) v Doyle
    • General Position: An honest mistake affords an accused the defense of provocation. The accused is entitled to be tried as if his/her mistaken assumption were true.
    • We have to ask if this must a reasonable mistake or may it be unreasonable? In Ireland, because we have a purely subjective test, it seems to mean even an unreasonable mistake can found the defense. In other jurisdictions (Australia, NZ) – it must be honest and reasonable
    • However, when put to a jury, the more ridiculous the mistake, a matter of fact will most likely lead to the jury not believing the defenses arguments.

On a finale note, ***DPP v Curran [2011] IECCA 95 – expressed concern about the law and need for reform. 

Topic 7 – Non-Fatal Offenses Against the Person

Historically, the law on non-fatal offenses was a combination of common law rules and statutes (Offences Against the Person Act 1861).

s. 47 = s. 3 (After Dolny this may be arguable)

s. 20 = s. 4

Now, it is largely governed by the Non Fatal Offences Against the person Act 1997 (1997 Act). This was enacted in response to the 1994 LRC Report on Non-Fatal Offences Against the Person. It repealed the majority of the 1861 Act, and abolished the common law offenses of assault, battery (creating instead a single offense of assault) and false imprisonment.

The creation of a single assault offense is an important point of divergence between Irish and English law. 

i) Assault and Aggravated Assault

[1] Assault

Section 2(1) of the 1997 Act:

  • Assault occurs when without lawful excuse, intentionally or (subjectively) recklessly;
    • (a) directly or indirectly applied force to or causes an impact on the body of another, or
    • (b) causes another to believe on reasonable grounds that he or she is likely immediately to be subjected to any such force or impact without consent.

–Acus Reus Elements for section 2(1)(a)

(a) Direct Actions

Originally, the application of force had to be direct. This was changed in:

  • **DPP v K (a minor) [1990] 1 All ER 331
    • 15 year old boy took test tube of acid into the bathroom. On hearing the teacher, he dumped it into an upturned hand dryer. Another student subsequently got acid burns on his face which left him permanently disfigured.
    • Issue: COuld K be found liable for assault?
    • Held: No distinction between direct and indirect force.

Note: This case pre-dates the 1997 Act. The 1997 Act confirms the principle laid down here. 

Also, an omission does not constitute an assault:

  • ***Fagan v Metropolitan Police Commissioner [1968] 3 All ER 442

    • Driver ran over policeman’s foot.
    • Here the continuing action theory was invoked instead.

However regard should be had to **R v Miller [1983] 1 All ER 978 and **DPP v Santana-Bermudez [2004] Crim. LR. 471.

(b) Force

‘Force’ is defined in s. 2(2) as:

  • (a) application of heat, light, electric current, noise or any other form of energy, and
  • (b) application of matter in solid, liquid or gaseous form.

There is no minimum degree of force required for an act to become an assault (principle of autonomy):

  • ***R v Thomas (1985) 81 Cr. App. R. 331
    • Accused rubbed the hem of a woman’s skirt – she was unaware.
    • Held: Guilty of assault.

This principle is long standing: See Blackstone’s commentaries.

— Actus Reus Elements for Section 2(1)(b)

(a) Apprehension

Reasonable apprehension is required (no fear is required). The objective element protects defendant’s against the ‘Egg Shell Skull Rule’.

  • ***R v Lamb [1967] 2 All ER 1282

    • Lamb and friend did not know how a Revolver (gun) operated properly. The friend thought he was safe – Lamb shot and killed his friend.
    • Lamb did not committ assault.
      • Therefore the key point here is awareness.

(b) Immediacy

Immediacy has been retained in the 2nd form of assault (s. 2(1)(b)). In practice however, this has been understood as “imminent” (***R v Ahluwalia). It is still an objective test.

  • ***Smith v Chief Superintendent Woking Police Station (1983) 76 Cr. App. R. 234

    • Peeping Tom was found guilty of an assault.
    • His proximity to the victim was the determinative factor (as opposed to immediacy)
  • ***R v Constanza [1997] 2 Cr. App. R. 492
    • Accused was stalking the woman he loved, delivered her letters. She as a result suffered of depression and anxiety.
    • This case applied and expanded ***Smith. The proximity of the accused’s home to the victim’s was determinative.
  • ***R v Ireland [1997] QB 114
    • Silent phone calls to 3 women.
    • Issue: Does psychiatric injury count as bodily harm (accused was charged with assault occasioning actual bodily harm).
    • Held: Yes. In the context of immediacy, ***Smith was applied.

There has been criticism of Constanza in particular. Smith & Hogan have differentiate between an immediate apprehension of violence and someone apprehending immediate violence

(c) Words as an Assault

Originally (at common law) words could not amount to an assault (*R v Byrne [1968] 3 CCC 179 (Canada)).

However, there seems to be a move away from this old position:

  • ***R v Ireland [1998] AC 147
    • “A thing said is also a thing done”.
  • ***R v Constanza [1997] 2 Cr. App. R. 492

It should be noted also that words can negative what may have been an assualt (*Tuberville v Savage)

— Mens Rea for Assault

For type 1 assault, the force has to be intentional or subjectively reckless

For type 2 assault, the accused must intend to cause the victim to apprehend immediate violence, or be subjectively reckless as to causing the apprehension.

However, the subjective reckless test is tempered by the reasonableness of the victim’s apprehension.

[2] Aggravated Assaults

LRC recommended the 1861 Act’s wide variety of aggravated of assaults be replaced with a simpler series of offenses (harm vs. serious harm).

The 1997 Act implemented these recommendations:

  • s. 3(1) A person who assaults another causing him harm shall be guilty of an offense
  • s. 4(1) A person who intentionally or recklessly causes serious harm to another shall be guilty of an offense.

(a) Harm Required

Section 3 requires proof of harm.

Section 3 (assault causing harm) is not a compound offense (Do not need to prove s. 2 assault):

  • ***Minister for Justice v Dolny [2008] IEHC 326

    • Section 3 is entirely separate from s. 2.
    • This was confirmed by the SCt in the same case on appeal ([2009] IESC 48)

“Harm” is defined in s. 1 as –> “harm to body or mind and includes pain and unconsciousness.”

Technically the victim can cause the pain and not break the chain of causation:

  • ***R v Roberts [1972] 56 Cr. App. R. 95

    • Victim jumped out of car due to sexual assault.

Section 4 requires proof of serious harm.

“Serious harm” is defined in s. 1 as –> “injury which creates substantial risk of death or serious disfigurement or substantial loss or impairment of mobility of part or whole of the body or function of any organ.

Note: Section 4, unlike s. 3 does not include harm to the mind. Therefore, psychological harm can only be charged pursuant to s. 3 –> harm (as opposed to serious harm). 

The “serious harm” need not be permanent:

  • ***People (DPP) v Kirwan [2005] IECCA 136

    • Held: Legislature chose not to follow LRC’s wording recommendations (“serious permanent disfigurement” and”protracted loss or impairment”). By ommitting the word permanent, plastic surgery could be a viable solution etc.

(b) Mens Rea

Section 3 = absolute liability (Dolny) – Is this unconstitutional since there is a lack of mens rea?

Section 4 = intention or recklessness.

Perhaps the difference is warranted since s. 3 offenses have a 5 year max. prison term whereas s. 4 have a max life sentence. 

Does the defendant have to foresee the precise kind of injury contemplated by the applicable section?

  • ***R v Mowatt [1967] 3 All ER 47

    • “It is enough that he should have foreseen that some physical harm to some person, albeit of a minor character, might result.”
    • In this sense, recklessness abounds and has no limits. Even if your intent was to commit a s.3 assault, if it escalates to s. 4, you will be charged under s. 4.

[3] Defenses to Assault and Aggravated Assault

(a) Consent

Section 2(3) provides:

  • In circumstances such as is generally acceptable in the ordinary conduct of daily life, no assault will be committed. 

Implied consent can be revoked:

  • ***Collins v Wilcock [1984] All ER 37
    • Facts: Two officers spotted two women who they thought to be soliciting prostitution. Upon asking them to enter the car, Collins (supposed prostitute) walked away. Wilcock grabbed her arm to detain her. Collins scratched the officer.
    • Held: An assault because Wilcock was not exercising her power of arrest when she detained Collins.
      • The principle of personal autonomy stood strong in this case.

***Dolny was clear that consent is not a defense to a s.3 charge. This presupposes that consent is also not a defense to a s.4 charge. This is precluded on public policy grounds (a person cannot consent unless the act has social value).

  • *****R v Brown and Others [1994] 1 AC 212
    • Facts: Five homosexual men engaged in sadomasochistic sexual acts, consenting to the harm. None of the individuals complained against any of the harm. However, they were uncovered by an unrelated police investigation.
    • Judgment: Reference was made to:
      • ***R v Donovan [1934] 2 KB 498 – Appellant in private beat up a 17-year-old girl for sexual gratification, with her consent – Held: if the act is unlawful act, consent is not a defense.
      • ***AG’s Reference (No.6 of 1980) [1981] 1 All ER 1057 – Two men decided to settle argument in fist fight on street. It was held not to be in the public interest, consent was not a defense. 
    • Held: Majority (3:2) – Consent was immaterial in this case because satisfying a sadomasochastic libido by inflicting harm is not of social value. Consent as a defense was limited by public policy considerations. Found guilty under s. 47 OAPA 1861, three were also found guilty under s. 20 OAPA 1861.

An application was made to the ECtHR:

  • ****Laskey and Others v UK [1997] ECHR 21627/93
    • Attempted to rely on Art. 8. 8(1) = respect for private/family life. 8(2) = no interference with 8(1) unless in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing  of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedom of others.
    • Held: The State has a right to intervene where there is infliction of physical harm – the harm that is allowed is a matter for the individual state.

Furthermore, reference was made to:

  • ***R v Wilson [1997] QB 47

    • Accused’s wife wanted tattoo. Husband did this using a branding technique. Wound became infected and the doctor reported this.
    • Held: Wife’s consent was valid as the branding was more akin to tattooing and cosmetic enhancement that infliction of pain for sexual gratification.

The law was criticized as Wilson left in in a state of uncertainty. However, it seems to have been cleared up in:

  • ***R v Emmett (18 June 1999, unreported) Court of Appeal

    • Cohabiting couple – woman consented to erotic asphyxiation. On another occasion she consented to having her breasts set on fire. Man charged with s.3 assault.
    • Issue: Does **Brown or **Wilson apply?
    • Held: The case of **Brown applied. **Wilson was distinguished as the “actual and potential damage” to which she consented went far beyond that in **Wilson.

Courts look to see for social value

Note: corporal punishment of children is a recognized public policy exception (although the Minister for Children, Frances Fitzgerald is considering whether to legislate on limiting this or even abolishing it).

  • ******R v Dica [2004] EWCA Crim. 1103

    • Facts: Accused was told he was HIV positive (note: actual knowledge) and started receiving medical treatment for it. Subsequently, he was in two long-term relationships. He infected both women with HIV. Both said they would not have consented had they known.
    • Judgment: Reference was made to:
      • ***R v Clarence [1889] 22 QBD 23
        • Husband gave wife gonorrhea, claimed she consented to sex but not the disease.
        • Issue: Whether husband had committed a s. 20 OAPA 1861 (akin to s.3) offense?
        • Held: No fraud as to identity or nature of the act and therefore no assault, despite causing GBH.
    • Held: i) Clarence was no longer authorityii) under Brown, as a matter of public policy, such violent conduct cannot be excused merely because there is a private consensual sexual element. This same public policy consideration would prohibit the deliberate spreading of disease, including sexual diseases.

Therefore, general rule = consent to sexual intercourse is not the same as consenting to the risk of a STD. 

There is an exception however. Where the victim consents to the risk but not the certainty of infection. (Consent is a defense here, as noted in Konzani).

  • ***R v Konzani [2005] EWCA Crim. 706

    • Facts: Accused knew he was HIV positive (actual knowledge). Infected three women. He had an honest but unreasonable belief that they consented to the risk.
    • Held: With reference to Brown, consent to sex does not form ‘a kind of all purpose species’ of consent. A general consent to sex does not cover a case of concealed HIV status.

There is a distinction between ‘running a risk’ and ‘consenting to run a risk’.

A very recent development is the case of:

  • ***R v Golding (Augist 2011, Northampton Crown Court)

    • Golding knew he had an STI, but did not tell his girlfriend. She confronted him and he later admitted the truth.
    • Charged with same offense as Dica and Konzani (GBH). Sentenced to 14 months in prison – but has been released on bail:
      • There is a difference between herpes and HIV – 70% of people in the UK carry some variant of the herpes virus. (life threatening etc.?)

On the issue of identity, we may consider:

  • ****Bolduc & Bird v R. (1967) 63 DLR (2nd) 82 (Canada)

    • Facts: Woman went to see physician (after he invited her in) to undergo a vaginal examination. Doctor introduced her to a “medical intern” and she consented to his presence during the exam. The doctor actually conducted the exam. Both were prosecuted. 
    • Held: No fraud as to the nature of the act or identity of the person performing the act.
  • ***R v Richardson [1999] QB 444
    • Dentist was suspended from practice after having her license removed but continuing to practice.
    • Held: Fraud as t the currency of her medical qualification was irrelevant
  • ***R v Tabassum [2000] 2 Cr. App. R. 328
    • Appellant told the woman he fondled that he was a doctor compiling software. He was neither in fact. The case turned on the “consent” given.
    • Held: True consent had not been given (the woman was not given a breast exam but was instead fondled).

The court in Tabassum distinguished Richardson not on the basis of fraud as to identity but on the basis that the accused’s identity changed the nature of the act that was consented to.

Since the issue of consent, to what would otherwise be an assault has so frequently arisen in the medical context in Tort, these cases are applicable even to the criminal law. Two of them are:

  • ***St. George’s Healthcare NHS Trust v S [1998] 3 All ER 673

    • Facts: A 36 week pregnant woman was diagnose with pre-eclampsia. She was told she needed to undergo a C-section but refused as she wanted a natural birth. A social worker tried to convince her otherwise, but she would not. The social worker (former nurse) then admitted her against her will to a mental institution where she had a C-section.
    • Issue: Was she entitled to refuse medical treatment? Was there a lack of consent?
    • Held: As a result, her right to personal autonomy could not be forced to yield to the rights of her unborn child.
  • ***F v West Berkshire Health Authority [1990] 2 AC 1
    • Facts: Voluntary in-patient, in a mental hospital had the capacity of a 4-5 year-old child (she was 36). She began sexual relations with another inmate and their was concern surrounding the possibility of her becoming pregnant (pill is not always effective, IUD could kill her with risk of infection, other contraceptives also have a failure rate.)
    • The authorities sought to sterilize her.
    • Held: Sterilization was in her best interests.

(b) Lawful Excuse

Section 18(1) of the 1997 Act gives lawful excuse a statutory basis. It provides:

  • The use of force by a person for any of the following, if only reasonable in the circumstances as he/she believes them to be does not constitute an offense:
    • a) Protecting against injury, detention or assault caused by a criminal act.
    • b) Protect from trespass
    • c) Protect property
    • d) Protect another’s property
    • e) Prevent crime or breach of the peace

ii) Syringe Offenses

Syringe offenses are criminalized under s 6-8 of the 1997 Act.

A “syringe” is defined in s. 1 as –> “any part of a syringe or needle or any sharp instrument capable of piercing skin and passing onto or into a person blood or any fluid or substance resembling blood.”

(a) The Section 6 Offenses

Section 6 creates four distinct offenses.

Section 6(1) – Offense to injure another person by piercing his skin with a syringe or threatening to do so;

Section 6(2) – Makes it an offense to spray, pour or put onto another, blood or any fluid or substance resembling blood or threatening to do so;

—with the intention of or where there is likelihood (objective recklessness) of causing that other to believe that they may be infected with a disease as a result will be guilty of an offense. Neither of these two offenses require actual harm.

Section 6(3) – A person who commits or attempts to commit an offense in s. 6(1) or (2) but does so to a 3rd party shall be guilty of an offense. (This is the doctrine of transferred malice being put on a statutory footing).

Section 6(4) – An offense under subsection (1), (2) or (3) warrants on summary conviction, a fine of £1,500 and a term not exceeding 12 months and on a conviction on indictment, a fine or imprisonment term not exceeding 10 years.

Section 6(5) – This addresses offenses with contaminated syringes. It also includes the doctrine of transferred malice. (Liable for life imprisonment)

But, what is a “contaminated syringe” – It is defined in s. 1 as a syringe with which the contents are contaminated “with any disease, virus, agent or organism which if passed into the blood stream of another could infect them with a life threatening or potentially life threatening disease.”

(b) Possession (Section 7) and Disposal of Syringes (Section 8)

Section 7 provides:

  • A person who has a syringe or blood container with them or in any place, intended by them unlawfully to cause or threaten to cause injury or to intimidate another (allows for transferred intent) shall be guilty of an offense. 

This is a strict liability offense.

The importance of knowledge re. possession can be seen in:

  •  ***Minister for Posts and Telegraphs v Campbell [1966] IR 69.
    • Case concerned non-compliance with TV licensing regulations.
    • Held: To be liable for possession, you must have knowledge. In this case, the court could not find knowledge.

Section 7 raises two questions of constitutionality.

(1) Targeting individuals?

  • ***King v AG [1981] IR 233

    • Plaintiff argued that because of his known characteristics he was targeted under the Vagrancy Act for loitering.
    • Held: Loitering as an offense was too vague to warrant specific discrimination. Discrimination towards categories of people is warranted….

(2) Sub-sections (2) and (5)

Section 7(2) allows for a member of the Garda Siochana who has reasonable cause to suspect that a person may have a syringe on them in contravention of s.6, may stop and search (with reasonable force) and if one is found, seize and detain it, unless another reasonable excuse for it is given.

Section 7(5) allows for possession in and of itself as sufficient evidence of intent in the absence of any adequate explanation by the accused. Hebeas corpus being infringed upon?

Section 8 deals with the abandoning of syringes.

  • Section 8(1) – A person who abandons or places a syringe in a place that is likely ot injure another and does so or is likely to cause a threat or frighten another shall be guilty of an offense.
  • Section 8(2) – Intentional placement
  • Section 8(3) – Subsection (1) does not apply where those purposes are lawful (medical, dental veterinary).
  • Section 8(4) – In relation to a prosecution under subsection (1), where the syringe is placed in a private dwelling where that person normally resides, it is a defense that he did not intentionally place the syringe so as to injure, or cause a threat to or frighten another.

There is a presumption of mens rea here as this is a strict liability offense. 

iii) Poisoning 

The LRC recommended reformulating the offense of poisoning. These recommendations were given effect in s. 12 of the 1997 Act.

(1861 Act had two separate poisoning offenses)

Section 12 provides:

  • Section 12(1) – Knowing that the other person does not consent, he intentionally or recklessly administers to or causes to be taken by another a substance which he knows to be capable of interfering substantially with the other’s bodily functions.
  • Section 12(2) – For the purposes of this section, a substance capable of inducing sleep or unconsciousness is sufficient.
  • ***R v Kennedy (No.2) [2012] UKHL 38

    • Kennedy prepared heroin for deceased (deceased administered themselves). Charged with unlawful manslaughter. Argue that the unlawful act was s. 23 OAPA 1861 (precursor to the Irish s. 12)
    • Held: An informed voluntary act is a novus actus interveniens breaking the chain of causation.

While in Ireland the substance needs to be “noxious”, in Ireland this is not the case – even spiking drinks is poisoning.

Initially there was a strict line taken on administration:

  • **R v Dones [1987] Crim. LR. 682
    • Defendant squirted ammonia at victim with a plastic lemon. Charged with administering a noxious substance.
    • Court looked at the dictionary for a definition of “administer” = “apply”
    • However, using the legislation, some sections used the words “apply” or “cast or throw” in conjunction with “administer”.
    • Therefore squirting is not administering.

However, a broader definition is no applied which is more in keeping with the 1997 Act

  • ****R v Gillard (1988) 87 Cr. App. R. 189
    • A number of English men in France used CS gas on bouncer.
    • Held: Literal approach was favored and this was administering.

iv) Harassment

A new offense of criminal harassment was introduced by s. 10 of the 1997 Act.

Section 10 provides:

  • (1) – without lawful authority or reasonable excuse – including telephone – harasses = consistently following, watching, pestering, besetting or communicating. 
  • (2) (a) – intentionally or recklessly intereferes with another’s peace and privacy or causes alarm or distress or harm, and;
  • (2) (b) – those acts are such that the reasonable person wold realize seriously interfere with another’s peace and privacy or cause alarm, distress or harm – shall be guilty of an offense.
  • (3) – allows for a restraining order
  • (4) – failing to comply with (3) shall be guilty of an offense.
  • (5) – Even if the court is not satisfied someone should be convicted under s. 10 (1), they may nevertheless make an order under ss. (3), if this is in the interests of justice.

Prior to this, it was difficult for those harassed to obtain legal protection:

  • ***Royal Dublin Society v Yates (unreported, 31 July 1997, High Court)

    • Accused wrote letters, sent roses, held an art exhibition “Through Olivia’s Eyes”
    • RDS (on behalf of Olivia O’Reilly) sought to rely on torts of intimidation and nuisance.
    • Applying the law on intimidation, Yates was not liable as this require that the victim complied with threats or suffered financial loss.
    • However, he was found liable in nuisance.

The first case to look at s. 10 – dealt with the mens rea requirement:

  • ***People (DPP) v Ramachchandran 
    • Held: Mens rea was tempered by objective reservation placed on the offense, that “his or her acts are such that a reasonable person would realize that the acts would seriously interfere with another’s peace or privacy or cause alarm, distress or harm.”

In the English context of mens rea for harassment we see:

  • ***R v Colohan [2001] Crim. LR. 845

    • D was a paranoid schizophrenic who sent threatening letters to his local MP.
    • Tried to argue that the standard of reasonableness as applied in provocation (and in duress) should apply here.
    • Held: No – the objective structure of reasonableness would apply because if the act were constructed as the appellant wants it to be, the Act would be effectively useless.

An unresolved issue is the quantifying of harassment (i.e. what does “persistent” mean?). In England the phrase used is “course of conduct” whereas in Ireland we use the word “persistent”. Some cases consider this issue:

  • ***Lau v DPP [2000] Crim. LR. 586

    • D slopped victim when she was still his girlfriend. 4 months later however he threatened her new boyfriend with violence.
    • Held: Two incidents in and of themselves do not amount to a “course of conduct”.
      • Also, consider the fact that the violence was directed at two different people – there must therefore be a clear nexus between the incidents.
  • ***Wass v DPP (unreported, 11 May 2000) QBD
    • D followed a former girlfriend, as she gout off a bus. He tried to stop her but she entered a shop. He waited however and tried to stop her as she left.
    • Held: The two events were not a single act – they can be split into two distinct events so as to amount to a “course of conduct”
      • This is in stark contrast to the “continuing action theory”. 
      • Also, it serves as a presumption that only two events can amount to a ‘course of conduct’.
  • ***DPP v Lynch [2010] 3 IR 434
    • Accused was hired by parents victim to install a kitchen. He exposed himself at least 3 times to the children and masturbated.
    • Held: A series of events, even though over a short (2.5 hour) time frame were held to be within the meaning of “persistent”.
      • It was provided obiter that even a long, continuos act may amount to harassment (persistence).

There is another constitutional issue that should be considered in the form of s. 10(5) of the 1997 Act. This allows for a restraining order to be implemented even where that person is legally innocent. “No smoke without fire” – this may impugn your right to good name etc.?

Topic 8 – Sexual Offenses

Some introductory remarks

It has been said the study of sexual offenses is a study in social values.

Why is rape a separate offense from assault? – It has a stigma attached to it that other offenses don’t, the UN recognizes it as such and it comes with altogether different risks than regular assault.

It is a gender specific offense (only men can commit the crime of rape).

Generally rape myths are false: 2/3 of cases occur by known people of the victim. 2/3 happen in the home. Also there is only a 60% success rate at trial.

i) Rape

Rape is governed by s. s of the Criminal Law (Rape) Act 1981 (1981 Act).

Section 2(1) provides:

  • A man commits rape if;
    • (a) he has unlawful sexual intercourse with a woman who at the time of intercourse does not consent to it, and;
    • (b) at the time he knows of her non-consent, or he is reckless as to whether she does or does not consent to it.

Actus Reus: Rape has two external actus reus elements: penetration and lack of consent (complainant’s perspective).

Mens Rea: Consent is also part of the mens rea of the offense, but it is judged from the accused’s perspective.

Note: When consent is an actus reus element, it is judged from the complainant’s perspective. 

(a) Penetration

Sexual intercourse is penetration of the vagina by a penis. This was defined in s. 63 of the OAPA 1861 Act.

However, even the slightest penetration is sufficient:

  • ***People (AG) v Dermody [1956] IR 307

    • Complainant stated the accused “put his private part a wee bit into mine” –> her hymen was not broken.
    • Held: No matter how slight the penetration, it is still penetration and therefore, rape.

The English Sexual Offenses Act 2003 provides for the possibility of gender reassignment per s. 79(3). This means that in England, a surgically constructed vagina falls within the category of rape.

However, there is no equivalent legislation in Ireland.

  • ***Foy v Registrar for Births, Deaths and Marriages & Others [2007] IEHC 470
    • Foy, a transgender sought for her birth certificate to be changed. Section 4 of the Act governing states that a birth certificate may only be changed where there was a clerical error. Foy argued that there was of course an error of fact or substance due to her being listed a male.
    • Held: HCt held the test in Ireland was biological and therefore it could not be changed. However, the SCt noted that the law had changed due to the enactment of the ECHR Act 2003.
      • A Gender Recognition Advisory Group was set up to advise the government on legislation and a Heads of Bill is expected in 2013.

Note: The possibility remains for Ireland to bring in such a bill as the case of **Goodwin v UK in effect brought the Gender Recognition Act 2004 to the fore in the UK. 

(b) Consent

It must be proved, beyond a reasonable doubt that the woman did not consent.

  • ***People (DPP) v C [2001] 3 IR 345

    • Consent was defined here as: “voluntary agreement or acquiescence to sexual intercourse by a person of the age of consent with the requisite mental capacity. Knowledge or understanding of facts material to the act being consented to is necessary for the consent to be voluntary or constitute acquiescence.”

–Consent Exemptions

At common law rape could be committed by any male, with two exemptions:

  1. A husband could not rape his wife; (Historically, this was due to the “mutual matrimonial contract” where the woman “hath given herself up” (Hale)). 
  2. A boy under 14 was irrebuttably presumed physically incapable of rape.

The marital rape exemption was abolished by s. 5 of the Criminal Law (Rape) (Amendment) Act 1990 but note however:

  • s. 5(2) – criminal proceedings against a man in respect of the rape by him of his wife shall not be instituted except by or with the consent of the DPP.

The irrebuttable presumption with regard to boys under 14 was abolished by s. 6 of the 1990 ActHowever, the defense of infancy remains relevant. The age of 10 is where a boy becomes liable for rape, pursuant to s. 52 of the Children Act 2001 as am. by s. 129 of the Criminal Justice Act 2006.

–Consent obtained by fraud

Fraud as to the nature of the act or identity of the person will nullify consent.

(a) Identity

  • *** R v Dee (1884) 15 Cox CC 579

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

3 responses to “Criminal Law

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