✅ MURDER – PROBLEM QUESTION FRAMEWORK (ONE-STOP GUIDE)

1. INTRODUCTION

Murder is a common law offence defined by Lord Coke as:

"The unlawful killing of a reasonable person under the Queen’s peace with malice
aforethought."

This breaks down into:

 Actus reus: the unlawful killing of a human being under the Queen’s peace

 Mens rea: intention to kill or cause grievous bodily harm (GBH)

2. ACTUS REUS

(i) Unlawful Killing

 Was the act unlawful (i.e. not justified by self-defence)?

 Can be a positive act (e.g. stabbing, shooting) or an omission (R v Gibbins and

Proctor [1918])

 Must occur under the Queen’s peace (R v Page [1954])

 Victim must be a human being (AG’s Ref (No.3 of 1994) [1997])

(ii) Causation

Factual Causation:

 Apply the but-for test (R v White [1910])

Legal Causation:

 Cause must be more than minimal (R v Kimsey [1996]) and blameworthy (R v Smith
[1959])

 Consider potential intervening acts:

o Acts of third parties (R v Pagett [1983])

o Victim’s own acts (R v Roberts [1971]; R v Williams and Davis [1992])

o Medical negligence (R v Cheshire [1991])

 Thin skull rule: R v Blaue [1975] – take your victim as you find them

 Coincidence: Fagan v MPC [1969], Thabo Meli [1954]

3. MENS REA

(i) Malice Aforethought

 Direct intent: D’s purpose was to kill or cause GBH (R v Mohan [1975])

 Oblique intent: Apply Woollin [1998]:

o Was death/GBH a virtually certain consequence?

o Did D appreciate this?

o If yes to both, jury may infer intent (R v Matthews and Alleyne [2003])

(ii) GBH intent suffices

 R v Vickers [1957]; R v Cunningham [1982]

(iii) Transferred Malice

 R v Latimer [1886] – MR transfers from intended to actual victim

4. PARTIAL DEFENCES (REDUCES TO VOLUNTARY MANSLAUGHTER)

1. LOSS OF CONTROL (s.54–56 CJA 2009)

Three-Stage Test:

1. Loss of self-control (need not be sudden – s.54(2))

2. Qualifying trigger (s.55):

o Fear of serious violence (s.55(3))

o Extremely grave circumstances & justifiable sense of being seriously wronged

(s.55(4))

o Clinton [2012] – infidelity can count if part of broader context

3. Objective test: person of same sex/age with ordinary tolerance might act similarly (R
v Camplin [1978])

 Exclusion: No defence if D acted out of revenge (s.54(4); Ibrams and Gregory [1982])

2. DIMINISHED RESPONSIBILITY (s.2 Homicide Act 1957 as amended)

Four Elements:

1. Abnormality of mental functioning

2. Arising from recognised medical condition (Byrne [1960], Golds [2016])

 3. Substantially impaired ability to:

o Understand conduct

o Form rational judgment

o Exercise self-control (s.2(1A))

4. Provides explanation for D’s conduct (s.2(1B) – causal link)

Notes:

 Intoxication alone not enough (Dowds [2012])

 Mix of alcohol + mental illness: apply Dietschmann [2003]

 Jury should not override clear psychiatric evidence (Brennan [2014])

5. COMPLETE DEFENCES (FULL ACQUITTAL)

1. SELF-DEFENCE (Common Law + s.3 Criminal Law Act 1967)

Test (Gladstone Williams [1984]):

1. Did D honestly believe force was necessary? (subjective test)

2. Was force reasonable in the circumstances? (objective test – R v Martin [2002], CJIA
2008 s.76)

 Householder Cases (s.76(5A) CJIA): allows disproportionate (not grossly

disproportionate) force (Ray [2017])

2. INSANITY (M'Naghten Rules [1843])

D must have:

1. A defect of reason from

2. A disease of the mind causing

3. D did not know the nature/quality of the act or that it was legally wrong

Cases:

 Kemp [1957] – arteriosclerosis = disease of mind

 Sullivan [1984] – epilepsy = insanity

 Windle [1952] – knowing legality bars defence

3. AUTOMATISM (Bratty [1963])

Requirements:
  Total loss of voluntary control (AG Ref (No.2 of 1992))

 Caused by external factor (e.g. spiked drink – Quick [1973])

 If internal → Insanity (Hennessy [1989])

6. INTOXICATION (NOT A DEFENCE PER SE)

 Can negate MR for specific intent crimes (e.g. murder)

 Sheehan and Moore [1975] – drunken intent is still intent

 If D was too drunk to form intent → may not be guilty of murder, but manslaughter
still possible

 In DR: intoxication + RMC = Dietschmann test

7. CONCLUSION

State whether:

 The AR and MR for murder are fulfilled

 Any defence applies (partial or complete)

 Whether liability is for murder, manslaughter, or acquittal

✅ ASSAULT – PROBLEM QUESTION FRAMEWORK (ONE-STOP GUIDE)

1. INTRODUCTION

Assault is a common law offence, charged under s.39 Criminal Justice Act 1988 (summary
only). It is defined through case law as:

"Any act by which D intentionally or recklessly causes V to apprehend immediate and

unlawful personal violence." (Fagan v MPC [1969]; Ireland [1998])

No actual physical contact is required.

2. ACTUS REUS

(i) Any Act (No Omission)

  Assault requires an act, not an omission (Fagan v MPC [1969])

 Can include:

o Words (Constanza [1997])

o Silence (Ireland [1998])

o Messages/social media/letters – if they cause apprehension of force

(ii) Apprehension of Immediate Unlawful Force

 V must apprehend unlawful personal violence – actual danger is irrelevant (Logdon v

DPP [1976])

 Apprehension must be of immediacy – not distant/future violence (Lamb [1967])

 However, immediacy is broadly interpreted – includes conduct that suggests force

could be applied at any moment (Constanza [1997])

(iii) Examples & Exclusions

 Conditional threats may not suffice (Tuberville v Savage [1669]) unless threatening
body language is present (Read v Coker [1853])

 V must be aware (e.g., not asleep or unconscious)

 Hostility is not required (Faulkner v Talbot [1981])

3. MENS REA

(i) Intention

 Direct intention: D’s aim/purpose to cause apprehension (Mohan [1975])

 Oblique intent rarely used, as recklessness usually suffices

(ii) Recklessness

 Defined in Venna [1976], confirmed in Savage & Parmenter [1992]:

1. D foresees risk that their conduct may cause V to apprehend immediate force

2. D unreasonably goes ahead anyway

o Subjective test – R v Cunningham [1957]

4. COINCIDENCE OF AR AND MR

 AR and MR must coincide

  Can be part of a continuing act (Fagan v MPC [1969])

5. CONSENT AND OTHER DEFENCES

 Consent may be a defence only if the conduct falls within accepted social
interactions (Collins v Wilcock [1984])

 Self-defence may apply if proportionate

 Honest belief in necessity of action may be relevant even if mistaken (Williams

(Gladstone) [1984])

6. CONCLUSION

To establish assault:

 D must cause V to apprehend immediate unlawful personal violence

 D must do so intentionally or recklessly

 No contact or injury is required

If the AR and MR are both satisfied, and no valid defence applies, D will be liable for assault
under common law, punishable under s.39 CJA 1988

🔎 QUICK CASE INDEX

 Fagan v MPC [1969] – continuing act, omission vs act

 Ireland [1998] – silence can amount to assault

 Constanza [1997] – letters/words can suffice

 Logdon v DPP [1976] – imitation gun caused real fear

 Lamb [1967] – no apprehension = no assault

 Tuberville v Savage [1669] – words can negate assault

 Read v Coker [1853] – threatening body language counts

 Savage & Parmenter [1992] – confirmed recklessness test

 Venna [1976] – recklessness as MR for assault/battery

 Mohan [1975] – defined direct intent

 Williams (Gladstone) [1984] – honest mistake defence

  Faulkner v Talbot [1981] – no need for hostility

 Collins v Wilcock [1984] – implied consent boundaries

✅ BATTERY – PROBLEM QUESTION FRAMEWORK (ONE-STOP GUIDE)

1. INTRODUCTION

Battery is a common law offence punishable under s.39 Criminal Justice Act 1988. It is
defined as:

"The unlawful application of force by D upon V, either intentionally or recklessly."

No injury is required—any unlawful touching suffices.

2. ACTUS REUS

(i) Application of Force

 "Force" can include the slightest physical contact (Collins v Wilcock [1984])

 Can be direct (e.g. punching) or indirect (e.g. setting a trap)

 No requirement for injury, pain, or visible harm

Examples:

 Slapping, spitting (DPP v K [1990] – acid in hand dryer)

 Touching clothing (Thomas [1985])

 Causing a person to drop a baby (Haystead v DPP [2000])

 Omissions may suffice where a duty exists (DPP v Santana-Bermudez [2003] – failure
to disclose needle in pocket)

(ii) Unlawfulness

 Must be without lawful justification or excuse

 Consent to ordinary social contact (e.g. bumping on public transport) makes contact
lawful (Collins v Wilcock [1984])

3. MENS REA
(i) Intention or Recklessness

 Direct intention – D’s purpose to apply force (Mohan [1975])

 Recklessness – D foresees the risk of applying unlawful force and proceeds anyway
(Venna [1976], Savage & Parmenter [1992])

o Subjective recklessness: Cunningham [1957] standard applies

4. COINCIDENCE

 MR and AR must coincide (Fagan v MPC [1969] – continuing act can suffice)

5. DEFENCES

(i) Consent

 Implied for everyday touching (e.g. handshakes, jostling in crowds)

 Not valid for violence beyond social norms (Collins v Wilcock [1984])

(ii) Self-defence / Defence of Another

 Use of force must be reasonable and proportionate (Criminal Law Act 1967, s.3)

 Honest belief in threat sufficient even if mistaken (Williams (Gladstone) [1984])

(iii) Lawful Correction / Physical Contact in Sport or Medical Context

 Only valid if performed reasonably within context

6. CONCLUSION

To establish battery:

 D must apply unlawful force to V (actus reus)

 D must do so intentionally or recklessly (mens rea)

 If both elements are present and no valid defence applies, D will be liable for battery
under common law (punishable under s.39 CJA 1988)

🔎 QUICK CASE INDEX

 Collins v Wilcock [1984] – slightest touching = battery; implied consent

 Thomas [1985] – touching clothing = touching the person

  Haystead v DPP [2000] – indirect application of force

 DPP v K [1990] – acid in hand dryer = indirect battery

 DPP v Santana-Bermudez [2003] – omission may suffice

 Venna [1976], Savage & Parmenter [1992] – recklessness suffices

 Mohan [1975] – intention defined

 Williams (Gladstone) [1984] – honest mistake = valid defence

 Fagan v MPC [1969] – continuing act principle

✅ ACTUAL BODILY HARM (ABH) – PROBLEM QUESTION FRAMEWORK (ONE-STOP GUIDE)

1. INTRODUCTION

ABH is a statutory offence under s.47 Offences Against the Person Act 1861, punishable
with up to 5 years’ imprisonment. It is a triable either way offence, and the act must involve
an assault or battery that causes actual bodily harm to the victim.

"Assault occasioning actual bodily harm" refers to an assault or battery that leads to more
than transient or trifling harm (Donovan [1934]).

2. ACTUS REUS

(i) Assault or Battery

 ABH must be founded on either an assault or a battery (Ireland [1998], Savage

[1992])

 Assault: Causing V to apprehend immediate unlawful force

 Battery: Application of unlawful force

(ii) Occasioning (Causation)

 D’s act must cause the actual bodily harm

 Apply:

o Factual causation – But for test (White [1910])

o Legal causation – D’s act must be a substantial, blameworthy and operative

cause (Kimsey [1996], Smith [1959])
 o No break in chain: e.g., V’s reaction must not be “so daft” as to be
unforeseeable (Roberts [1971])

(iii) Actual Bodily Harm

 Defined in Donovan [1934]: "any hurt or injury calculated to interfere with the health
or comfort of the victim"

 Must be more than transient or trifling

 Includes:

o Bruising, cuts, scratches

o Minor fractures

o Temporary loss of consciousness (T v DPP [2003])

o Hair cutting (DPP v Smith [2006])

o Recognised psychiatric harm (Chan-Fook [1994], Ireland [1998])

3. MENS REA

 No need to prove intention or recklessness as to the harm – only to the base offence
(Savage & Parmenter [1992])

(i) Intention

 Direct intention to cause apprehension or force (Mohan [1975])

(ii) Recklessness

 Subjective recklessness (Cunningham [1957]) – D foresees a risk of causing

apprehension or force and goes ahead anyway

4. DEFENCES

(i) Consent

 Generally not a defence to ABH (Attorney General’s Ref (No. 6 of 1980))

 Limited exceptions:

o Sport (Barnes [2004])

o Medical treatment

o Horseplay (Jones [1986])

 o Lawful correction of child (A v UK [1998])

 Brown [1993] – Consent invalid for sadomasochistic ABH

(ii) Self-defence / Prevention of Crime

 Must be reasonable and proportionate (s.76 Criminal Justice and Immigration Act
2008)

 D must have an honest belief in the necessity of force, even if mistaken (Williams
[1984])

5. CONCLUSION

To establish liability for ABH under s.47:

 D must commit an assault or battery

 Which causes actual bodily harm

 With intention or recklessness as to the assault or battery

 No requirement to intend or foresee the resulting harm

 If actus reus and mens rea are satisfied and no valid defence applies, D is guilty of
ABH

🔎 QUICK CASE INDEX

 Donovan [1934] – ABH defined

 Chan-Fook [1994] – ABH includes recognised psychiatric harm

 Ireland [1998] – silent phone calls = assault; psychiatric injury = ABH

 DPP v Smith [2006] – cutting hair = ABH

 T v DPP [2003] – unconsciousness = ABH

 Savage & Parmenter [1992] – only MR for assault/battery needed

 Roberts [1971] – foreseeable consequence = causation

 White [1910], Smith [1959], Kimsey [1996] – causation

 Barnes [2004], Brown [1993], Jones [1986] – consent boundaries

 Williams (Gladstone) [1984] – mistake in self-defence

 Mohan [1975], Cunningham [1957] – intention and recklessness

✅ GRIEVOUS BODILY HARM (GBH) – PROBLEM QUESTION FRAMEWORK (ONE-STOP GUIDE)

1. INTRODUCTION

Grievous Bodily Harm (GBH) arises under two separate offences in the Offences Against the
Person Act 1861:

 s.20 – Malicious wounding or infliction of GBH (triable either way)

 s.18 – Wounding or causing GBH with intent (indictable only)

The distinction lies primarily in mens rea. Both require proof of GBH or wounding.

2. ACTUS REUS

(i) Unlawful Wounding or Inflicting/ Causing GBH

 Wounding: A break in both layers of the skin (dermis and epidermis)

o Internal bleeding is not sufficient unless the skin is broken (JJC v Eisenhower
[1983])

 Grievous Bodily Harm:

o Defined as “really serious harm” in DPP v Smith [1961], simplified to "serious

harm" in R v Saunders [1985]

o Factors to consider:

 Age and health of victim (R v Bollom [2003])

 Psychiatric harm included (R v Burstow [1998])

 Transmissible diseases like HIV = GBH (R v Dica [2004])

(ii) Causation (for "inflict" or "cause")

 Must prove:

o Factual causation: But-for test (White [1910])

o Legal causation: Substantial, blameworthy, operative (Smith [1959]; Kimsey

[1996])

 For s.20 "inflict", direct physical force not required (R v Ireland; R v Burstow)

 For s.18 "cause", broader: any act that results in GBH

3. MENS REA

s.20 OAPA 1861

 D must intend or be reckless as to some harm, not necessarily serious harm (R v

Mowatt [1968])

 Recklessness is subjective (Cunningham [1957]) – did D foresee the risk of some

harm?

s.18 OAPA 1861

 Requires specific intent to:

o Cause GBH, or

o Resist or prevent lawful apprehension, and be reckless as to causing GBH

 No recklessness alone – must prove direct or oblique intent to cause GBH (Belfon
[1976])

 Oblique intent test: R v Woollin [1998] – Was GBH a virtually certain consequence,
and did D realise this?

4. DISTINCTIONS BETWEEN s.20 AND s.18

Element s.20 s.18

Actus Reus Wounding or inflicting GBH Wounding or causing GBH

Mens Rea Intent or recklessness as to some harm Specific intent to cause GBH

Sentence Max 5 years Max life imprisonment

Trial Mode Either way Indictable only

5. DEFENCES

(i) Consent

 Limited applicability for GBH (Brown [1993])

 May be valid in sport (Barnes [2004]) or medical treatment

(ii) Self-Defence / Prevention of Crime

 Force must be reasonable (s.76 CJIA 2008; R v Martin [2002])

  Honest belief in threat sufficient even if mistaken (Williams [1984])

 For s.18, jury must be sure D was not acting in self-defence with intent to cause GBH

(iii) Insanity / Automatism / Intoxication

 Specific intent (s.18) may be negated by voluntary intoxication (Sheehan and Moore
[1975])

 Intoxication not a defence to s.20, only relevant to MR

6. CONCLUSION

 s.20: Prosecution must prove wounding or GBH + intent or recklessness as to some

harm

 s.18: Prosecution must prove wounding or GBH + specific intent to cause GBH or
resist arrest

 If actus reus and respective mens rea are satisfied and no defences apply, D is guilty

🔎 QUICK CASE INDEX

 JJC v Eisenhower [1983] – wounding requires broken skin

 DPP v Smith [1961] / R v Saunders [1985] – GBH = serious harm

 R v Bollom [2003] – consider age/health of V

 R v Burstow [1998], R v Dica [2004] – psychiatric harm & disease = GBH

 R v Ireland [1998] – silent calls can inflict GBH

 R v Mowatt [1968] – s.20 MR = intent/recklessness to some harm

 R v Belfon [1976] – s.18 requires specific intent

 R v Woollin [1998] – oblique intent test

 Brown [1993], Barnes [2004] – consent limits

 Williams (Gladstone) [1984], Martin [2002] – self-defence rules

 Sheehan and Moore [1975] – intoxication negates specific intent

✅ CONSENT AS A DEFENCE – PROBLEM QUESTION FRAMEWORK (NFOAP)

1. INTRODUCTION

Consent may operate as a defence to non-fatal offences against the person (NFOAP),
particularly assault and battery. Its availability for more serious offences like ABH (s.47), GBH
(s.20) and wounding (s.18) is limited to exceptional circumstances.

 Common law defence: Applies to assault and battery.

 Statutory clarification: s.71 Domestic Abuse Act 2021 prohibits use of consent as a
defence to serious harm inflicted for sexual gratification.

2. ELEMENTS OF CONSENT

To be a valid defence, consent must be:

(i) Express or Implied

 Express: V clearly agrees (verbally or otherwise).

 Implied: Recognised in daily social contact (Collins v Wilcock [1984])

o E.g. handshake, jostling in a crowd

(ii) Effective Consent

 Capacity: V must have mental and legal capacity (Burrell v Harmer [1967]; Mental
Capacity Act 2005)

 Informed: V must know the nature of the act (Konzani [2005])

 Freedom: Consent must not be obtained by fraud or duress

o Fraud as to identity (Richardson [1998]; Melin [2019])

o Fraud as to nature of act (Mobilio [1991])

o Duress (Jones [1986])

3. CONSENT TO HARM – RECOGNISED CATEGORIES OF EXCEPTION

Under R v Brown [1994], consent is not a defence to ABH or more unless the harm occurred
within a recognised exception. Lord Jauncey stated exceptions include:

(i) Surgery

 Lawful surgical intervention with informed consent is valid (e.g. Corbett [1971],
cosmetic surgery, gender reassignment)
(ii) Tattooing and Piercings

 Consent valid for minor body alterations (Wilson [1996])

 Invalid for extreme body modifications (BM [2018])

(iii) Religious Flagellation

 Ritualistic self-mortification accepted as exception (Brown)

(iv) Sports

 Barnes [2004]: Injuries within rules = consented to

o Must be recognised sport with rules

o Excessive or reckless foul play = no defence

(v) Horseplay

 Rough but friendly play may attract defence (Jones [1986]; Aitken [1992])

o Must have genuine belief in consent, even if mistaken

(vi) Sexual Activity – STI Cases

 Consent valid if V knows of STI risk (Dica [2004])

 Invalid if V unaware of risk (Konzani [2005])

4. LIMITATIONS ON CONSENT

(i) Public Policy (Brown [1994])

 No defence for consensual sadomasochism (ABH+)

 Legal moralism: court seeks to prevent "cult of violence"

(ii) Domestic Abuse Act 2021 – s.71

 Expressly prohibits consent as defence to serious harm caused for sexual gratification
(applies to ABH, GBH, wounding under OAPA 1861)

(iii) Children – S.58 Children Act 2004

 Battery of a child cannot be justified as reasonable punishment where offence

involves ABH or worse

5. NECESSITY
  Defence operates where D acts to protect V (e.g. dragging V from oncoming car) – Re
F [1990]

6. APPLICATION IN PROBLEM QUESTIONS

 Determine nature of harm: is it battery/assault (consent defence available) or

ABH+/GBH (restricted)?

 Establish whether conduct falls under recognised exception

 Test for valid consent:

o Was it voluntary?

o Was V capable of consenting?

o Was it informed and free from duress/fraud?

 If D claims belief in consent, assess genuineness (reasonable mistake not necessary –

subjective test)

7. CASE INDEX

 Collins v Wilcock [1984] – Implied consent in everyday contact

 Burrell v Harmer [1967] – Minors cannot consent due to lack of capacity

 Konzani [2005] – Consent requires knowledge of STI risk

 Richardson [1998] – Identity deception must be fundamental

 Brown [1994] – Consent not valid for sadomasochistic ABH

 Wilson [1996] – Branding by spouse = akin to tattooing = valid

 Barnes [2004] – Consent in sport; beyond rules = no defence

 Jones [1986]; Aitken [1992] – Horseplay: genuine belief in consent may suffice

 BM [2018] – Body modification not exempted

 Dica [2004] – Informed consent to HIV risk valid

 Domestic Abuse Act 2021 s.71 – No consent defence for sexual gratification-based
serious harm

✅ INVOLUNTARY MANSLAUGHTER – PROBLEM QUESTION FRAMEWORK (ONE-STOP GUIDE)

Involuntary manslaughter arises where D causes the death of V but does not have the mens
rea for murder. It sits on a spectrum of blameworthiness and includes two primary forms:

1. Unlawful Act Manslaughter (Constructive Manslaughter)

2. Gross Negligence Manslaughter (GNM)

🔶 1. UNLAWFUL ACT MANSLAUGHTER (CONSTRUCTIVE MANSLAUGHTER)

✅ Definition:

D commits unlawful act manslaughter where:

 D commits a criminal base offence,

 That act is objectively dangerous (risk of some physical harm), and

 Causes V’s death.

There is no requirement that D intended or foresaw death (AG’s Ref (No 3 of 1994)).

➤ A. Base Offence

 Must be a criminal offence (Kennedy [2008])

 Cannot be a civil wrong (Franklin [1883])

 Cannot be based on an omission (Lowe [1973])

 Must satisfy all elements, including mens rea (Lamb [1967])

 Cannot be a negligence-based offence (Andrews v DPP [1937])

 Strict liability offences likely excluded

Examples:

 OAPA offences (e.g. one punch deaths – A (2005))

 Criminal damage (Farnon [2015])

 Burglary (Watson [1989])

 Human trafficking (Nica [2021])

➤ B. Objective Danger

 Objectively dangerous: would a sober and reasonable person see a risk of some
harm? (Church [1966])

 Must be physical harm, not emotional distress (Dhaliwal [2006])

  Objective test, D’s foresight irrelevant (Newbury [1977])

 Special knowledge of harm not expected of ordinary person (Dawson [1985])

➤ C. Causation

 Factual causation (White [1910]) – But for D’s act, would V have died?

 Legal causation (Smith [1959]) – Was D’s act a substantial and operative cause?

 Apply chain of causation principles:

o Fright and flight (Lewis [2010])

o Drug supply (Kennedy [2008])

o Suicide (Dhaliwal [2006])

➤ D. Mens Rea

 Mens rea only needed for the base offence, not for death

 No mens rea for the overall offence (Lamb [1967])

🔷 2. GROSS NEGLIGENCE MANSLAUGHTER (GNM)

✅ Definition:

D causes death by gross negligence in circumstances where a duty of care is owed.

Based on Adomako [1995] and clarified in Rose [2018], the six elements are:

➤ 1. Duty of Care

 D must owe V a duty of care at the time of the act/omission

 Follows civil principles (Donoghue v Stevenson)

 Examples:

o Doctor/patient (Adomako [1995])

o Employer/employee (Dean [2002])

o Illegal activity (e.g. smuggling immigrants – Wacker [2003])

o Familial duty (e.g. supplying drugs – Evans [2009])

➤ 2. Breach of Duty

 Act: would a reasonable person in D’s position have acted differently?

 Omission: would a reasonable person have done more?

➤ 3. Serious and Obvious Risk of Death

 Risk of death must be serious and obvious to a reasonable person (Misra [2004])

➤ 4. Reasonably Foreseeable Risk of Death

 Not necessary for D to foresee it – objective test (Singh [1999])

 Must assess at time of breach, not in hindsight (Rose [2018])

➤ 5. Causation

 Apply standard factual and legal causation rules

 For omissions: would intervention have prevented death? (Evans [2009])

➤ 6. Grossness of Breach

 Must be “grossly negligent”, far below acceptable standard (Adomako)

 Described as “truly exceptionally bad” (Sellu [2017])

 Jury decides based on expert evidence

➤ Mens Rea

 No requirement for intention or recklessness

 Negligence substitutes mens rea

🔚 Summary Comparison

Element Constructive Manslaughter Gross Negligence Manslaughter

Mental State Mens rea for base offence only No intent/recklessness – objective standard

Type of Conduct Unlawful act (not omission) Act or omission

Risk Standard Risk of some harm (Church) Risk of death (Misra)

Breach Type Criminal act only Breach of duty of care

Examples Fights, pranks, burglary-related Doctors, carers, dangerous omissions

🔎 Key Cases

 Kennedy [2008] – Base offence must be committed by D

 Lamb [1967] – No offence without full mens rea for base offence

 Church [1966] – Objective test for dangerousness

  Dawson [1985] – Special knowledge irrelevant

 Adomako [1995] – GNM six-part test

 Misra [2004] – Risk of death required

 Evans [2009] – Duty by creating a dangerous situation

 Sellu [2017] – Grossness standard refined

 Rose [2018] – Timing of risk assessment

✅ THEFT – PROBLEM QUESTION FRAMEWORK (ACTUS REUS + MENS REA STRUCTURE)

Offence: Theft is defined under s.1(1) Theft Act 1968:

"A person is guilty of theft if he dishonestly appropriates property belonging to another with
the intention of permanently depriving the other of it."

To establish liability for theft, both actus reus and mens rea must be satisfied.

🔶 ACTUS REUS

The actus reus of theft consists of:

1. Appropriation (s.3)

2. Property (s.4)

3. Belonging to Another (s.5)

1. Appropriation (s.3)

Definition: "Any assumption by a person of the rights of an owner."

 Includes any right of the owner, such as selling, destroying, or using (Morris [1984])

 Consent is irrelevant (Lawrence [1972], Gomez [1993])

 A valid gift can still be appropriation (Hinks [2000])

 Appropriation can be continuing (Atakpu [1994])

Apply: Did D assume any rights of the owner? Did it matter whether V consented?
2. Property (s.4)

Definition: "Money and all other property, real or personal, including things in action and
other intangible property."

Includes:

 Money

 Personal and real property

 Intangible things (e.g. bank accounts)

 Body parts if skill applied (Kelly [1999])

Excludes:

 Confidential information (Oxford v Moss [1979])

 Electricity (Low v Blease [1975])

Apply: Is the item in question included under the statutory definition of property?

3. Belonging to Another (s.5)

Definition: Property belongs to anyone with possession, control, or proprietary interest.

 D can steal from someone who has temporary control (Turner (No.2) [1971])

 Property left outside charity shop was not abandoned (Ricketts [2010])

 Property can belong to more than one person (Woodman [1974])

Apply: Who had possession, control, or proprietary rights over the property at the time of
appropriation?

🔷 MENS REA

The mens rea of theft consists of:

1. Dishonesty (s.2)

2. Intention to Permanently Deprive (s.6)

1. Dishonesty (s.2 + Ivey v Genting)

Statutory exceptions in s.2(1):

 D believes they have a legal right (s.2(1)(a))

  D believes owner would consent (s.2(1)(b))

 D believes the owner cannot be found (s.2(1)(c))

Where none apply, apply Ivey test:

1. Determine D’s actual belief as to the facts (subjective)

2. Would ordinary decent people find the conduct dishonest? (objective)

 Ivey v Genting [2017]; reaffirmed in Barton and Booth [2020]

Apply: Did D genuinely believe they had a right or consent? If not, would ordinary people
find it dishonest?

2. Intention to Permanently Deprive (s.6)

Definition: D must intend to treat the item as his own to dispose of, regardless of V’s rights.

 Borrowing can amount to theft if property is rendered useless (Lloyd [1985])

 Returning identical money ≠ same coins (Velumyl [1989])

Apply: Did D treat the property in a way that shows intention to keep, destroy, or
fundamentally deny the owner's rights?

✅ CONCLUSION TEMPLATE

 Has there been an appropriation under s.3? Apply relevant facts.

 Does the item qualify as property under s.4?

 Did it belong to another under s.5 at the time?

 Was D dishonest according to the Ivey test and statutory exceptions?

 Did D intend to permanently deprive the owner of the property?

If all five elements are satisfied, D will be criminally liable for theft under s.1(1) of the Theft
Act 1968.

✅ RAPE – FULL PROBLEM QUESTION FRAMEWORK (Sexual Offences Act 2003)

Offence: Rape – Section 1, Sexual Offences Act 2003

"A person (A) commits an offence if— (a) he intentionally penetrates the vagina, anus or
mouth of another person (B) with his penis, (b) B does not consent to the penetration, and
(c) A does not reasonably believe that B consents."

The offence requires:

1. Actus Reus

o Penile penetration

o Of Vagina, Anus, or Mouth

o Without consent

2. Mens Rea

o Intent to penetrate

o Lack of reasonable belief in consent

🔶 ACTUS REUS

1. Penile Penetration

 Must be committed by a person with a penis (only men can commit rape as principal
offenders).

 Penetration can be slight; ongoing penetration = continuing act (Kaitamaki [1985])

Apply: Did A use his penis to penetrate the vagina, anus, or mouth of B? If yes, this element
is satisfied.

2. Lack of Consent

Consent is defined under s.74 SOA 2003:

"A person consents if he agrees by choice, and has the freedom and capacity to make that
choice."

This includes three legal routes:

🔹 s.74 General Definition – use in most scenarios

 Did B make a free and informed choice? Consider intoxication, pressure,

manipulation, fear, submission.

 R v Olugboja [1982] – submission ≠ consent.

 R v Ali [2015] – consent obtained through grooming may fail.

 R v Bree [2007] – drunken consent is still consent unless capacity is lost.

🔹 s.75 Evidential Presumptions – use where listed facts apply: If A:

 used or threatened violence

 caused B to fear violence

 unlawfully detained B

 woke B from unconsciousness

 gave B stupefying substances

 knew B was physically unable to communicate

Then: It is presumed B did not consent, and A had no reasonable belief in consent – unless A
rebuts the presumption with evidence.

🔹 s.76 Conclusive Presumptions – use only where there is intentional deception:

 A deceived B as to the nature/purpose of the act

e.g. doctor pretending sex is medical treatment (R v Flattery)

 A impersonated someone known personally to B

e.g. pretended to be B’s boyfriend (Elbekkay [1995])

Then: Consent and belief in consent are conclusively presumed to be absent. No rebuttal is
possible.

Apply: Identify which section applies to the facts. Use s.74 by default, and s.75/s.76 only
where their elements are strictly met.

🔷 MENS REA

1. Intent to Penetrate

 Direct intention must be shown (i.e., A meant to do the act). This is rarely contested.

2. Lack of Reasonable Belief in Consent

 s.1(1)(c) requires A to not reasonably believe B consents.

 Test is subjective + objective:

1. What did A actually believe? (subjective)

2. Was that belief reasonable in all the circumstances? (objective)

 R v B [2013] – belief in consent must be evaluated with reference to objective

standard.
  R v Ali [2015] – distorted beliefs (e.g., due to grooming or power imbalance) may be
found unreasonable.

Apply: Did A believe B consented? If yes, was that belief reasonable to the ordinary person
in A’s shoes?

🔚 CONCLUSION TEMPLATE

 Was there penile penetration? If so, element one is satisfied.

 Was B consenting? Apply s.74, s.75, or s.76 as appropriate.

 Did A have a reasonable belief in consent? Use the hybrid subjective/objective test.

If all three elements are satisfied, A is liable for rape under s.1 SOA 2003.

✅ ASSAULT BY PENETRATION – PROBLEM QUESTION FRAMEWORK

Sexual Offences Act 2003, s.2

Statutory Definition (s.2(1)): A person (A) commits an offence if:

1. A intentionally penetrates the vagina or anus of another person (B) with a part of A’s
body or anything else,

2. The penetration is sexual,

3. B does not consent to the penetration, and

4. A does not reasonably believe that B consents.

🔶 ACTUS REUS

1. Penetration of Vagina or Anus with Any Body Part or Object

 This may include penetration with fingers or objects such as bottles or tools.

 Penetration need only be minimal and can be a continuing act (Kaitamaki [1985]).

 Unlike rape, this offence can be committed by persons of any gender.

Apply: What was used to penetrate, and which orifice? Was the act intentional and
voluntary?

2. The Penetration is Sexual

Defined under s.78 SOA 2003: A penetration is sexual if:

 (a) a reasonable person would consider it sexual by nature; or

 (b) the circumstances or purpose make it sexual.

Apply: Was the purpose of the act sexual? Would a reasonable person view the act as such?

 R v George [1956] and R v H [2005] can be used to illustrate this standard.

3. B Did Not Consent to the Penetration

Use the same consent framework as in rape:

🔹 s.74 (General definition): Did B agree by choice with freedom and capacity?

 If B is unconscious, manipulated, frightened, or too intoxicated, consent may not be

valid (R v Bree [2007], R v Olugboja [1982]).

🔹 s.75 (Evidential presumption): Applies in limited factual circumstances (e.g.

unconsciousness, threat of violence, drugs).

 Rebuttable by D.

🔹 s.76 (Conclusive presumption): If A deceived B about the nature or purpose of the act or
impersonated a known person.

 No rebuttal permitted.

Apply: Was consent valid under s.74? If s.75 or s.76 apply, explain and assess whether the
elements are met.

🔷 MENS REA

1. Intent to Penetrate

 This is usually not disputed. It is enough that the defendant intended the physical
act.

2. Lack of Reasonable Belief in Consent (s.2(1)(d))

Use the hybrid test from R v B [2013]:

 Subjective limb: Did A believe B consented?

 Objective limb: Was that belief reasonable in the circumstances?

Relevant evidence:

 Did A ask for consent?

 Did B say or do anything to indicate consent?

  Was B intoxicated, unconscious, frightened?

Apply: Examine if D’s belief was both genuine and reasonable. If D made no inquiries or
ignored obvious signs of incapacity, belief is unlikely to be reasonable.

✅ CONCLUSION

 Did A penetrate B’s vagina or anus with a body part or object?

 Was the act sexual?

 Did B consent? Apply s.74–s.76 as appropriate.

 Did A have a reasonable belief in consent?

If all elements are satisfied, A is guilty of assault by penetration under s.2 SOA 2003.

✅ SEXUAL ASSAULT – PROBLEM QUESTION FRAMEWORK

Sexual Offences Act 2003, s.3

Statutory Definition (s.3(1)): A person (A) commits an offence if:

1. A intentionally touches another person (B),

2. The touching is sexual,

3. B does not consent to the touching, and

4. A does not reasonably believe that B consents.

🔶 ACTUS REUS

1. Touching

Defined under s.79(8) as including:

 With any part of the body,

 With anything else,

 Through anything (e.g., clothing),

 And includes even the lightest contact.

Apply: Did A intentionally make physical contact with B, however slight?

Touching must be intentional but the motive is irrelevant at this stage.

 R v H [2005] – Touching the pocket of the complainant’s trousers was enough.

 R v Bounekhla [2006] – Includes touching with objects.

2. The Touching is Sexual

Defined by s.78 SOA 2003: Touching is sexual if:

 (a) it is sexual by nature; or

 (b) it may be sexual and is intended to be sexual.

 R v George [1956] – Non-sexual motives (e.g., foot fetish) can still result in sexual
touching if it satisfies the s.78 test.

Apply: Would a reasonable person view the touching as sexual? Was the purpose sexual? If
either limb of s.78 is met, this element is satisfied.

3. Lack of Consent

Apply the same three routes used in rape/assault by penetration:

🔹 s.74 (General Definition):

 Did B agree by choice with freedom and capacity?

 Consider effects of intoxication, fear, coercion, or manipulation (Olugboja, Bree).

🔹 s.75 (Evidential Presumptions):

 If B was unconscious, drugged, or physically unable to communicate, or where

violence or threats were used.

 If engaged, it presumes lack of consent and lack of reasonable belief—unless

rebutted by D.

🔹 s.76 (Conclusive Presumptions):

 If D deceived B as to the nature or purpose of the act, or impersonated someone

known to B.

 No rebuttal permitted.

Apply: Use s.74 by default; use s.75 or s.76 only when facts clearly match statutory triggers.

🔷 MENS REA

1. Intentional Touching

 There must be deliberate contact; accidental touching will not suffice.

2. Lack of Reasonable Belief in Consent

As with rape/assault by penetration, apply the hybrid test from R v B [2013]:

 Subjective: Did A believe B consented?

 Objective: Was that belief reasonable in all the circumstances?

Apply: Did A make inquiries? Was B intoxicated, passive, or confused? A failure to take
reasonable steps may make belief unreasonable.

If D was reckless as to B’s consent or ignored signals of discomfort or silence, mens rea is
satisfied.

✅ CONCLUSION TEMPLATE

 Was there intentional touching?

 Was the touching sexual under s.78?

 Did B consent? Use s.74–76 to determine.

 Did A have a reasonable belief in consent?

If all elements are satisfied, A is liable for sexual assault under s.3 SOA 2003.

✅ CAUSING A PERSON TO ENGAGE IN SEXUAL ACTIVITY – PROBLEM QUESTION FRAMEWORK

Sexual Offences Act 2003, s.4

Statutory Definition (s.4(1)): A person (A) commits an offence if:

1. A intentionally causes another person (B) to engage in an activity,

2. The activity is sexual,

3. B does not consent to engaging in the activity,

4. A does not reasonably believe that B consents.

⚠️Note: This offence applies where A causes B to commit a sexual act, either:

 Alone (e.g. masturbation), or

 With a third party, or

 With A (but A is passive, not actively participating).

Unlike rape (s.1) or assault by penetration (s.2), A does not do the sexual act; A causes B to
do it.

🔶 ACTUS REUS

1. A Causes B to Engage in an Activity

 The causation must be intentional: A must deliberately bring about B’s involvement
in the act.

 Includes physical compulsion, psychological pressure, deception, or manipulation.

Apply: Did A’s actions cause B to engage in the sexual activity? Was it voluntary, or was B
pressured or manipulated?

2. The Activity is Sexual

Defined under s.78 SOA 2003:

 An act is sexual if a reasonable person would consider it to be sexual by nature or

because of the circumstances or purpose.

Apply: Was the act obviously sexual? Did A intend the act to be sexual? If yes, this element is
satisfied.

3. B Did Not Consent

Apply the three-tiered consent framework:

🔹 s.74 – General Definition:

 Did B agree by choice with freedom and capacity?

 R v Bree [2007] – capacity lost through intoxication vitiates consent.

 R v Olugboja [1982] – submission is not consent.

🔹 s.75 – Evidential Presumptions:

 Applies in specific contexts like unconsciousness, threats, or incapacity.

 If applicable, the law presumes no consent unless rebutted.

🔹 s.76 – Conclusive Presumptions:

 If A intentionally deceives B about nature/purpose of the act or impersonates a

known person.

 No rebuttal allowed.

Apply: Use s.74 as default. If s.75 or s.76 applies, flag clearly and explain consequences.
🔷 MENS REA

1. Intent to Cause B to Engage in the Act

 A must intentionally bring about the result (i.e., B’s participation in the act).

 It must be deliberate.

2. Lack of Reasonable Belief in Consent

Apply the hybrid test from R v B [2013]:

 Subjective: Did A genuinely believe B consented?

 Objective: Was that belief reasonable in the circumstances?

Apply: Did A check for signs of consent? Did A ignore cues of discomfort or passivity? Was B
too intoxicated or manipulated?

If belief was not objectively reasonable, the mens rea is satisfied.

✅ CONCLUSION TEMPLATE

 Did A intentionally cause B to engage in the activity?

 Was the activity sexual under s.78?

 Did B consent (s.74, 75, 76)?

 Did A have a reasonable belief in consent?

If all elements are met, A is liable for causing a person to engage in sexual activity under s.4
SOA 2003.

✅ DEFENCE OF DURESS – PROBLEM QUESTION FRAMEWORK

(Covers both duress by threats and duress of circumstances)

🔶 OVERVIEW

Duress is a complete defence to all crimes except:

 Murder (R v Howe [1987])

 Attempted murder (R v Gotts [1992])

  Some forms of treason

Duress is an excusatory defence—the defendant admits the actus reus and mens rea but
claims they were compelled to act.

Two forms:

1. Duress by threats – pressure from another person

2. Duress of circumstances – pressure from surrounding events or conditions

The burden of disproving duress lies with the prosecution, once raised.

🔷 DURESS BY THREATS

✅ 1. Threat of Death or Serious Injury

 Must be threat of death or GBH – DPP v Lynch [1975]

 Threat to property, lesser harm, or pain alone is insufficient – Quayle [2006]

 Rape may qualify as GBH – R v A [2012]

 Threat must be external – R v Rodger and Rose [1998] (suicidal ideation = internal)

✅ 2. Threat Against D or Someone for Whom D Is Responsible

 Hasan [2005]: must be a person for whose safety D reasonably feels responsible

 R v Shayler [2001]: general threats to the public insufficient

✅ 3. Imminence of Threat

 Must be imminent, though not necessarily immediate

 Hudson & Taylor [1971]: threat can be operative even if not immediate

 Hasan [2005]: must be expected to follow “immediately or almost immediately”

✅ 4. Reasonable Person Test

 R v Graham [1982]: dual test

o D must genuinely believe the threat exists

o Would a sober person of reasonable firmness, sharing D’s relevant

characteristics, have responded the same way?

 Bowen [1996]: relevant characteristics include age, sex, pregnancy, serious physical
disability, or recognised mental illness

o Low intelligence, suggestibility, or intoxication generally irrelevant

✅ 5. Voluntary Association with Criminals

 Hasan [2005]: no defence if D ought reasonably to have foreseen risk of coercion

when associating with criminals

 R v Ali [2008]: extended rule to all foreseeable threats, not just those related to
specific crime

🔷 DURESS OF CIRCUMSTANCES

Developed in:

 R v Willer [1986]

 R v Conway [1988]

 R v Martin [1989] – test brought in line with duress by threats

Applies when D is compelled to act due to external circumstances, not a person’s threats.

Test:

1. Did D reasonably believe they were acting to avoid death or serious injury?

2. Would a sober person of reasonable firmness have done the same?

E.g., driving offences to avoid harm, possession of weapon for protection (R v Pommel
[1995])

🔷 NECESSITY (LIMITED SCOPE)

A justificatory rather than excusatory defence.

Used in rare medical or extreme cases – e.g.:

 Re F (Sterilisation) [1989] – medical treatment in patient’s best interest

 Re A (Conjoined Twins) [2000] – surgical separation justified by necessity

Test from Re A (Children) [2001]:

1. Act is needed to avoid inevitable and irreparable evil

2. No more done than is reasonably necessary

3. The evil inflicted is proportionate to the evil avoided

Not a defence to murder (generally):

 Dudley and Stephens [1884] – cannot justify murder by necessity

  Nicklinson [2013] – no necessity defence for euthanasia

✅ CONCLUSION TEMPLATE

1. Identify if D raises duress by threats, duress of circumstances, or necessity.

2. Analyse:

o Was there a threat of death/GBH or extreme pressure?

o Was it imminent?

o Was the response that of a reasonable person?

o Did D voluntarily associate with criminal conduct?

3. If all criteria are met and the crime is not murder/attempted murder, the defence
may succeed.

This framework ensures structured and first-class exam-ready analysis of the defence of
duress in all its forms.

✅ SELF-DEFENCE FRAMEWORK (UNDER s.76 CJA 2008)

Self-defence is a complete defence in English law. It applies where D uses force against
another person in order to protect themselves or others from unlawful violence.

🔶 APPLICABILITY

Self-defence is only available where:

 D uses physical force in defence.

 It is not available where D only commits property damage or theft (Blake [1993]).

It is a common law defence codified and clarified by s.76 Criminal Justice and Immigration
Act 2008 (CJA 2008), as amended.

✅ FRAMEWORK FOR SELF-DEFENCE

I. ELEMENT 1: NECESSITY OF FORCE – THE “TRIGGER”

 Subjective test: Did D honestly believe it was necessary to use force in self-defence?

 The belief must be honest, but need not be reasonable (s.76(3)).

  Even a mistaken belief can suffice, if genuinely held (Yaman [2012]).

 No duty to retreat but failure to do so may be relevant (Field [1972]).

 Pre-emptive strikes allowed if threat is imminent (Kelly [1989]).

 Revenge does not justify force – must be for protection (Williams [2020]).

APPLY: Did D believe they were under imminent threat of unlawful force?

II. ELEMENT 2: REASONABLENESS OF FORCE – THE “RESPONSE”

 Objective test: Was the force used by D reasonable in the circumstances as they
believed them to be?

 This is judged against what D perceived the facts to be, even if mistaken (s.76(3)).

 s.76(6): Force is not reasonable if it is disproportionate.

 s.76(7): Courts must account for the fact that D might not be able to “weigh to a
nicety” the exact measure of force.

APPLY: Did D respond with proportionate force to the perceived threat?

 Reed v Wastie [1972]: Force need not be perfectly measured.

 Keane [2010]: Consider nature and gravity of threat.

III. EXCLUSIONS

1. Mistaken Belief Due to Intoxication

 s.76(5): Where mistake is caused by voluntary intoxication, D cannot rely on self-

defence.

2. Mental Illness / Insane Delusion

 Martin [2001]: Where belief stems from psychiatric condition, may not qualify.

 Taj [2018]: Self-defence not available where delusion is due to a recognised mental
disorder.

3. Prior Fault

 Rashford [2005]: D can claim self-defence even if they initiated the confrontation,
unless they were the aggressor.

 Keane [2010]: If D was the aggressor and used violence to provoke a response,
defence fails.
✅ CONCLUSION CHECKLIST

To rely successfully on self-defence:

1. D must have used physical force.

2. D must have believed that force was necessary to avert an imminent attack.

3. D’s response must have been reasonable, judged on D’s perceived circumstances.

4. D must not have acted out of revenge or been grossly disproportionate.

5. The defence fails if D’s belief was caused by voluntary intoxication.

This framework provides a structured and comprehensive approach for analysing self-
defence in problem questions under English criminal law.

✅ PREVENTION OF CRIME – PROBLEM QUESTION FRAMEWORK

This defence allows individuals to use reasonable force in order to prevent a crime. It is a
statutory defence, codified in:

 s.3(1) Criminal Law Act 1967: "A person may use such force as is reasonable in the
circumstances in the prevention of crime or in effecting or assisting in the lawful
arrest of offenders or suspected offenders or of persons unlawfully at large."

 Further clarified by s.76 Criminal Justice and Immigration Act 2008.

✅ ELEMENTS OF THE DEFENCE

1. Force Must Be Used for the Purpose of Preventing Crime or Assisting Arrest

 Force must be used to:

o Prevent a crime (e.g., theft, assault, property damage), OR

o Effect or assist a lawful arrest.

 There must be a link between the force used and the objective of preventing crime.

APPLY: Identify the specific crime D believed was occurring or about to occur. Was the force
used genuinely aimed at stopping or disrupting this?

2. D Must Honestly Believe Use of Force Is Necessary

  Subjective test – What did D believe at the time, even if mistaken?

 The belief must be honestly held, even if unreasonable: R v Yaman [2012].

APPLY: Did D believe someone was committing or about to commit a crime? Was D trying to
stop it?

 Belief induced by voluntary intoxication invalidates the defence: s.76(5).

3. Force Must Be Reasonable in the Circumstances as D Believed Them to Be

 Objective test based on D’s belief in the facts: s.76(3), CJA 2008.

 Proportionate response is required:

o Disproportionate force = Not reasonable.

o D is not expected to "weigh to a nicety" in emergencies (s.76(7)).

APPLY: Would a reasonable person believe the level of force used was appropriate in the
circumstances as D believed them?

 Relevant Factors:

o Urgency of the situation.

o Seriousness of the crime.

o Whether non-violent alternatives were available.

🔷 EXCLUSIONS AND LIMITATIONS

1. Voluntary Intoxication

 If D’s belief in the need for force arose due to voluntary intoxication, the defence
fails: s.76(5).

2. Prior Fault or Aggression

 If D started the incident with unlawful intent, the defence may not apply: Keane
[2010].

3. Excessive Force

 The defence fails if D’s force was clearly disproportionate to the perceived threat or
crime being prevented: Palmer v R [1971].

✅ CONCLUSION CHECKLIST
To successfully raise the defence of prevention of crime:

1. Identify the specific crime D believed was being committed.

2. Confirm D used physical force to stop or prevent it.

3. Show that D honestly believed the force was necessary.

4. Assess whether the force used was objectively reasonable in light of D’s belief.

5. Ensure the belief was not caused by voluntary intoxication.

This defence is broad and powerful but hinges on both the honesty of belief and the
proportionality of response.

✅ DEFENCE OF PROPERTY – PROBLEM QUESTION FRAMEWORK

Defence of property is a subset of self-defence and is recognised under:

 Common law, and

 s.3(1) Criminal Law Act 1967: reasonable force to prevent crime (e.g. theft, criminal
damage),

 s.76 Criminal Justice and Immigration Act 2008 – clarifies how reasonableness of
force is assessed.

It overlaps with general self-defence, but with specific application to protecting property.

✅ ELEMENTS OF THE DEFENCE

1. Was the Use of Force for the Purpose of Protecting Property?

 D must act to:

o Prevent unlawful appropriation (theft, robbery, burglary), OR

o Eject trespassers, OR

o Prevent criminal damage to property.

APPLY: Identify the unlawful threat to property.

 Peaceful request to leave may be required before use of force (Green v Goddard
[1704]).

 AG’s Ref (No 2 of 1983): D may take reasonable steps to prepare to defend property
(e.g. petrol bombs in riots).
2. Honest Belief That Force Was Necessary

 Subjective test: Did D honestly believe force was required to defend the property?

 Even if mistaken, belief must be genuine: Yaman [2012].

 However, if the belief is caused by voluntary intoxication, defence fails: s.76(5).

APPLY: Did D believe property was under threat and that force was the only means to
prevent it?

3. Reasonableness of the Force Used

 Assessed objectively but in light of D’s perceived facts: s.76(3).

 Proportionality is key:

o Disproportionate force = not justified.

o Force should not be excessive relative to the threat posed.

 D need not precisely calculate force in heat of moment: s.76(7).

APPLY: Was the level of force reasonable given the threat to property?

🔷 HOUSEHOLDER CASES (OVERVIEW – if applicable)

Where the defence of property overlaps with household defence (e.g. burglaries), s.76(5A)
applies:

 Disproportionate force may be reasonable.

 But grossly disproportionate force is never permitted (R v Ray [2017]).

Only applies if:

 D is in a dwelling.

 D is not a trespasser.

 V is a trespasser.

Note: Typically not engaged unless question involves residential burglary.

🔷 EXCLUSIONS
  Voluntary Intoxication: D cannot rely on mistaken belief caused by intoxication
(s.76(5)).

 Force to Retaliate: D cannot use force to punish a trespasser—only to repel the

threat.

 Excessive Force: Overreaction voids the defence (R v Martin [2001]).

✅ CONCLUSION CHECKLIST

To successfully raise the defence of property:

1. D used force to protect property, eject trespassers, or prevent damage.

2. D honestly believed force was necessary.

3. Force used was reasonable and proportionate.

4. The threat was imminent, and the force was not excessive.

5. Belief was not caused by voluntary intoxication.

This framework ensures that all elements of a successful defence of property are covered
and applied precisely in line with statutory guidance and common law authority.

✅ AUTOMATISM – PROBLEM QUESTION FRAMEWORK

Automatism is a plea of denial of the actus reus – it is not a true defence but a denial of
criminal liability on the basis that D's actions were involuntary. If successful, it results in a
complete acquittal.

✅ LEGAL DEFINITION

 Automatism refers to an involuntary movement or action resulting from an external

cause, such that D had no conscious control over their actions.

 Lord Denning in Bratty v AG for Northern Ireland [1963]: "An involuntary act...
means an act which is done by the muscles without any control by the mind."

 Voluntary act is a core component of actus reus. If an act is involuntary, the actus
reus is not satisfied.

✅ ELEMENTS OF AUTOMATISM
1. D Suffered a Total Loss of Voluntary Control

 Must be complete loss of control over actions: Broome v Perkins [1987] – partial
control is insufficient.

 Must go beyond "irresistible impulse": AG for South Australia v Brown [1960].

 Examples include: reflex actions, spasms, unconsciousness, sleepwalking (if external

cause).

2. Loss of Control Must Be Caused by an External Factor

 External = Automatism → complete acquittal

 Internal = Insanity → special verdict

 See:

o Quick [1973] – insulin-induced hypoglycaemia = external factor = automatism

o Hennessy [1989] – diabetes without insulin = internal factor = insanity

o R v T [1990] – dissociation from rape = external cause = automatism

o Rabey [1980] – emotional stress from romantic rejection = internal →

insanity

3. D Must Not Be at Fault in Causing the Automatism

 D cannot rely on automatism if the incapacity was self-induced or could reasonably

have been foreseen.

 Kay v Butterworth [1945] – falling asleep at wheel = prior fault

 Quick [1973] – failure to eat after insulin = self-induced = no defence

✅ SPECIFIC vs BASIC INTENT OFFENCES

Specific Intent Offences (e.g. murder, theft, s.18 OAPA)

 Automatism may be a defence even if self-induced: Bailey [1983]

Basic Intent Offences (e.g. assault, battery, s.20 OAPA)

 Automatism is only a defence if:

o Not self-induced, OR

o Self-induced but not reckless: Bailey [1983]

 Voluntary intoxication causing automatism = no defence: Coley [2013]

APPLY: Identify the offence. If it is basic intent and D’s conduct was reckless (e.g. failed to
follow medical advice), the defence is unavailable.

✅ OPERATIONAL RULES

Evidential Burden

 D bears the evidential burden to raise the issue with supporting evidence.

 Medical evidence is essential: mere claims of blackouts are insufficient (Bratty,

Dervish).

 Once raised, prosecution must disprove beyond reasonable doubt.

✅ EXAMPLES

 Driving while unconscious = automatism (Watmore v Jenkins [1962]) only if there is

total destruction of control.

 Sleepwalking = automatism or insanity depending on cause (Burgess [1991]).

 Dissociative states = case-specific (compare T and Rabey).

✅ CONCLUSION CHECKLIST

1. Did D suffer a total loss of voluntary control?

2. Was the cause external (vs internal = insanity)?

3. Was D not at fault (no prior recklessness)?

4. Is it a specific or basic intent offence?

5. Is there supporting evidence, preferably medical?

6. If all conditions met, the defence of automatism results in complete acquittal.

✅ INSANITY – PROBLEM QUESTION FRAMEWORK

The defence of insanity applies where the defendant lacked criminal responsibility due to a
mental condition at the time of committing the actus reus. If successful, the verdict is "Not
guilty by reason of insanity", resulting in a special verdict under s.2(1) of the Trial of
Lunatics Act 1883.
✅ STEP 1: PRESUMPTION OF SANITY

 Everyone is presumed sane until the contrary is proven (M’Naghten [1843]).

 Burden of proof is on the defendant on the balance of probabilities.

✅ STEP 2: THE M'NAGHTEN RULES

To establish insanity, three cumulative elements must be satisfied:

1. Disease of the Mind

 This is a legal (not medical) concept. It refers to any internal condition that affects the
faculties of reason, memory or understanding.

 Kemp [1957] – Arteriosclerosis was held to be a disease of the mind despite being
temporary.

 Bratty [1963] – Any mental disorder prone to recurrence may constitute a disease of
the mind.

 Sullivan [1984] – Epilepsy qualified even though it was intermittent.

 Hennessy [1989] – Hyperglycaemia (due to not taking insulin) = internal cause =

insanity.

Contrast with:

 Quick [1973] – Hypoglycaemia due to external insulin = external = automatism, not

insanity.

2. Defect of Reason

 D must be deprived of reasoning capacity, not just failing to use it.

 Clarke [1972] – Mere absent-mindedness or confusion is insufficient.

 Must impair reasoning, not memory or attention.

3. Did Not Know the Nature and Quality of the Act OR That It Was Wrong

 Nature and quality: D did not know what they were physically doing (Codere [1916]).

 Wrongness: D did not know the act was legally wrong (not morally wrong).

o Windle [1952] – Saying "I suppose they’ll hang me for this" showed he knew
it was illegal.
 o Johnson [2007] – Legal standard confirmed: knowing act was contrary to law
is the threshold.

✅ STEP 3: APPLICATION TO THE FACTS

1. Identify the presence of a mental disorder.

2. Determine whether it constitutes a disease of the mind (internal cause).

3. Assess whether it caused a defect of reason.

4. Establish if D either:

o Did not understand the nature and quality of the act; OR

o Did not know it was legally wrong.

5. Evaluate supporting medical evidence (often two registered practitioners required).

✅ SPECIAL VERDICT & DISPOSALS

 If all criteria met: "Not guilty by reason of insanity" (s.2, Trial of Lunatics Act 1883).

 Judge has discretion under Criminal Procedure (Insanity and Unfitness to Plead) Act
1991:

o Hospital order

o Supervision order

o Absolute discharge

 Mandatory hospital order for murder.

✅ DIFFERENCE FROM AUTOMATISM

 Automatism: External cause (e.g. concussion, drugs) → complete acquittal

 Insanity: Internal cause (e.g. epilepsy, diabetes, sleepwalking) → special verdict

 The court will determine the nature of the condition: internal vs. external is key

✅ EXAMPLES & CASE SPOTLIGHTS

 Hennessy: Internal diabetes (no insulin) = insanity

 Quick: External insulin overdose = automatism

  Sullivan: Epilepsy = insanity

 Clarke: Absent-mindedness = no insanity

 Windle: Knew act was legally wrong = no insanity

 Codere: Did not understand physical nature = insanity

✅ INTOXICATION – PROBLEM QUESTION FRAMEWORK

The defence of intoxication is not a true defence but a denial of mens rea. It may excuse
liability where the defendant lacked the mental element of the offence due to their
intoxicated state. Whether it applies depends on:

1. Whether the intoxication was voluntary or involuntary, and

2. Whether the offence is one of specific or basic intent.

✅ STEP 1: IDENTIFY THE NATURE OF THE INTOXICATION

🔹 Voluntary Intoxication

 Occurs when D knowingly consumes alcohol or drugs.

 If the substance is known to be dangerous (e.g. alcohol, cocaine), intoxication is

treated as voluntary.

 Allen [1988] – Not knowing the strength of alcohol still counts as voluntary.

🔹 Involuntary Intoxication

 May include:

1. Drink or drug is spiked (e.g. Kingston [1994])

2. Taken under medical advice (e.g. Hardie [1985]) – Valium not known to cause
aggression

3. Non-dangerous drugs, if not taken recklessly

KEY POINT: Even if involuntary, D must still lack mens rea entirely for it to be a defence.

✅ STEP 2: IDENTIFY TYPE OF OFFENCE – BASIC OR SPECIFIC INTENT

🔹 Specific Intent Offences

 Require proof of purpose, intention, or ulterior intent.

  Voluntary intoxication may negate mens rea.

 Examples: Murder, Theft, Robbery, s.18 OAPA

 Case: DPP v Beard [1920] – If D was so drunk he could not form intent to kill = no
mens rea.

🔹 Basic Intent Offences

 Offences where recklessness is sufficient mens rea.

 Voluntary intoxication never negates liability.

 Examples: Assault, Battery, ABH, s.20 GBH

 Case: DPP v Majewski [1977] – Voluntary intoxication = reckless conduct = satisfies

mens rea.

 Case: Heard [2007] – Sexual assault is basic intent.

✅ STEP 3: APPLY INTOXICATION TO THE FACTS

🔹 If Voluntary:

 Specific intent offence?

o Yes → Ask whether D lacked intent due to intoxication → If yes, not guilty

o No → Mens rea is satisfied via recklessness (Majewski) → Guilty

🔹 If Involuntary:

 D can rely on intoxication for any offence, only if mens rea was not formed

 Even if drugged, D remains liable if he still had intent: Kingston [1994] – Involuntary
intoxication did not prevent conviction because D still had mens rea

Always analyse whether the intoxication made D genuinely incapable of forming the
required mens rea.

✅ SUMMARY TABLE

Offence Type Voluntary Intoxication Involuntary Intoxication

Specific Intent May negate mens rea Defence if no mens rea

Basic Intent Never a defence Defence if no mens rea

✅ CRITICAL CASES

 DPP v Majewski [1977] – Voluntary intoxication = reckless = basic intent

 Beard [1920] – Intoxication may negate intent in murder

 Kingston [1994] – Involuntary intoxication but still liable due to presence of mens rea

 Hardie [1985] – Valium = non-dangerous drug; intoxication was involuntary

 Allen [1988] – Not knowing strength of alcohol is still voluntary intoxication

 Heard [2007] – Sexual assault is basic intent

✅ CONCLUSION CHECKLIST

1. Voluntary or involuntary?

2. Specific or basic intent?

3. Did D form the necessary mens rea?

4. For specific intent, if D lacked intent due to intoxication → not guilty

5. For basic intent, if voluntary → no defence, even if very drunk

6. Involuntary → must prove absence of mens rea for any defence to apply