CAPE LAW UNIT 1, MODULE 3 CRIMINAL LAW: Lectures for CAPE Law Students in Anguilla BY DON MITCHELL CBE QC

CAPE LAW UNIT 2, MODULE 3 CRIMINAL LAW: Lectures for CAPE Law Students in Anguilla1 By Don Mitchell CBE QC (5th edition, revised 9 August 2011) Lectures prepared for the Form VI Class at the Albena Lake-Hodge Comprehensive School Table of Contents
Page List of cases i 1 24 31 47 49 50 51 51 51 52 52 52 55 61 66 72 73 76 81 84 88 93

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Criminal Liability Offences against the Person Murder Manslaughter Assault Battery Wounding with Intent Causing GBH with Intent Malicious Wounding Inflicting GBH Wounding Assault Occasioning ABH Common Assault Sexual Offences Rape Incest Offences against Property Theft Robbery Burglary Criminal Damage Inchoate Offences Conspiracy Attempt Incitement Defences Insanity

Based on the textbooks by Smith and Hogan, Criminal Law (2002, 10th edition), Jonathan Herring, Criminal Law (2007, 5th edition), and the Study Guide prepared by Camilla Edwards and Lilieth Deacon.

Diminished Responsibility Provocation Intoxication Self Defence Sentencing

36, 98 32, 98 98 100 105

List of Cases Page 5, 14, 41 33 16 88 102 103 30 108 7, 31 4 97 3 37 12, 14, 40, 48 35 86 68 7 39 57 95 102 74, 75 33 16 112, 14, 48 89 30 2 3, 28 70 57 107, 110 5 67 114 73 9, 10 3 31

R v Adomako [1995] R v Ahluwalia [1992] Alphacell Ltd v Woodward [1972] Race Relations Board v Applin [1973] Ayliffe v DPP [2005] Beckford v R [1988] R v Benge [1865] R v Bird (1992) R v Blaue [1975] Bratty v AG for Northern Ireland [1963] Attorney General for the State of South Australia v Brown [1960] R v Burgess [1991] R v Byrne [1960] R v Caldwell [1982] DPP v Camplin [1978] R v Campbell (1991) Chan Man-sin v A-G of Hong Kong [1988] R v Cheshire [1991] R v Church [1965] R v Clarence [1888] R v Clarke [1972], R v Clegg [1995] R v Collins [1972] R v Crocker [1989] Cundy v Le Cocq [1884] R v Cunningham [1957] R v Curr [1968] R v Dalloway [1847] R v Deller [1952] R v Dyson [1908] R v Easom [1971] R v Elbekkay [1995] Edwin Farfan v The State (1980) R v Gibbins & Proctor [1918] R v Gomez [1993] Guerra v Baptiste (1995) R v Hale [1978] R v Hancock and Shankland [1986] Hill v Baxter [1958] R v Hinks [2001]

R v Holland [1841] R v Hughes (2001) Hyam v DPP [1975] R v Ibrams and Gregory [1981] Invicta Plastics Ltd v Clare [1976] R v Ireland [1998] R v Jones [1990] R v Jordan (1956) Kaitamaki v The Queen [1958] R v Kelly [1998] R v Kemp [1957] R v Khan and Others [1990] R v Kingston [1994] Knuller Ltd v DPP [1973] Kong Cheuk Kwan v R [1985] R v Lamb [1967] R v Larkin [1943] R v Larsonneur [1933] R v Latimer [1886] R v Light [1857] R v Lloyd [1985] M'Naghten's Case (1843) R v McNamara [1988] DPP v Majewski [1975] R v Malcherek and Steel [1981] R v Martin (1881) R v Meredith [1973] R v Miller [1983] R v Mohan [1976] R v Moloney [1985] DPP v Morgan [1975] R v Morhall [1996] R v Most (1881) R v Nedrick [1986] R v Olugboja [1982] R v Owino [1996] Oxford v Moss (1978) R v Paget and Pemberton [1983] Palmer v R [1971] R v Parmenter [1992] R v Pembliton [1874]

27 114 11, 27 33 89 49 85 29 56 69 95 87 100 82 42 40 39 7 16 48 71 93 15 99 7, 28 52 70 5 87 9, 27, 99 58, 59, 60 36 89 9, 10 56 102 68 6 101 13, 14, 52 17

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State v Persaud [1975] Phillips v R [1969] R v Pittwood [1902] Pratt and Morgan (1993) R v R [1992] R v Roberts [1972] R v Robinson [1977] R v Satnam, R v Kewal [1983] R v Savage [1991] R v Seymour [1983] Shaw v DPP [1961] Shaw v R [2002] R v Shivpuri [1987] R v Smith [1959] R v James Smith (1990) Smith v Desmond [1965] R v Smith and Jones [1976] Sodeman v R [1936] R v Spratt [1991] R v Stone and Dobinson [1997] DPP v Stonehouse [1978] R v Sullivan [1984] Sweet v Parsley [1970] R v Tandy [1989] R v Thornton [1992] Tuberville v Savage [1669] R v Turner [1971] R v Venna [1975] Walton v R [1978] R v White [1910] R v Whitehouse [1977] R v Windle [1952] Winzar v Chief Constable of Kent (1983) Wollmington v DPP [1935] R v Woodman [1974] Yip Chin-Cheung v R [1995]

59 35 4 114 60, 61 52 71 58 13, 14, 52 41 82 103 6 29 83 73 75 96 13, 49, 52 5, 41 86 95 15 38 34 48 69 48 38 87 89 96 8 18 70 84

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UNIT 1: PUBLIC LAW MODULE 3: CRIMINAL LAW1 We shall cover this module in seven lectures, each one dealing with one of the specific objectives of your syllabus. They are: 1. Explain the basic principles of criminal liability; 2. Apply the basic principles of criminal liability to offences against the person; 3. Apply the basic principles of criminal liability to sexual offences; 4. Apply the basic principles of criminal liability to offences against property; 5. Apply the basic principles of criminal liability to inchoate offences; 6. Explain select defences available in criminal law; and 7. Evaluate the theories and practices of sentencing in the Commonwealth Caribbean. 1. CRIMINAL LIABILITY Your syllabus requires you to apply the basic principles of criminal liability to certain (a) offences against the person, (b) sexual offences, (c) offences against property, and (d) inchoate offences. The basic principles of criminal liability that you are expected to understand and to apply are: (i) the actus reus, including the age of criminal responsibility, and the status of the offender; (ii) the mens rea; (iii) specific intention: recklessness, crimes of negligence, and strict liability; (iv) coincidence of actus reus and mens rea; and (vi) transferred malice. Let us begin by establishing what is meant by criminal liability. There are two elements of a crime. These two elements are crucial in determining criminal liability. These are the actus reus and the mens rea of a crime. When is a crime committed? It is a general principle of criminal law that a person may not be convicted of a crime unless the prosecution have proven beyond reasonable doubt both (a) that he has caused a certain state of affairs which is forbidden by criminal law, and (b) that he
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Based on the textbooks by Smith and Hogan, Criminal Law (2002, 10th edition), Jonathan Herring, Criminal Law (2007, 5th edition), and the Study Guide prepared by Camilla Edwards and Lilieth Deacon. Last revised 13.8.2011.

had a defined state of mind in relation to the causing of the event or the existence of the state of affairs. The event or state of affairs is called the actus reus, and the state of mind the mens rea of the crime. Both of these two elements must coexist before one can be deemed guilty of a crime. Let us look at the definitions of each: (i) The actus reus refers to the conduct of the accused, the illegal activity itself. It includes acts or omissions, consequences and surrounding circumstances. (ii) The mens rea refers to the accused's state of mind, the guilty mind. It can be his intention, recklessness, gross negligence or mere knowledge, depending on the particular crime. The prosecution must be able to show by evidence that the

accused's "defined state of mind" must have "caused the event". How do you show that someone intentionally committed an act? It is not possible to do so by direct evidence. The prosecution cannot get into an accuseds head to demonstrate to the jury what was in the head. Evidence may be not only direct, but indirect, eg, by asking the jury to draw an inference. If an accused knowingly and deliberately stuck a knife into the victim, the jury can be asked to infer that he did so intentionally. That is how intent is proved. (i) Actus reus: Look at the following cases, which illustrate the actus reus. You are not expected to know all these cases by heart, only to read and understand how the principle above was applied. Only when a case is identified as a leading case then you are expected to remember the title, facts and findings of the case. (a) In R v Deller [1952] the defendant was charged with the offence of obtaining money by false pretences. He had induced the complainant, P, to

purchase a car by representing, inter alia, that the car was free from encumbrances. To D's knowledge it was not free from encumbrances as he had given a bill of sale to a lender against the car. A bill of sale is a mortgage document which is required by law to be registered in the Registry of Bills of Sale. The actus reus of the offence that the prosecution had to prove was the existence of a valid lien or encumbrance on the title to the car. He did not know that the document granting the lien was probably void as an unregistered bill of sale. D thought he was lying, but it turned

out that his representations to P were true, as the bill of sale had not been registered and was therefore void. D was convicted of the offence of obtaining money by false pretences. His conviction was quashed by the Court of Criminal Appeal. Even though he had the necessary mens rea, the actus reus had not been established.

(b) In R v Dyson [1908], in November 1906 and again in December 1907, the accused, D, inflicted injuries on a child who died on March 5, 1908. The date of death was more than one year and one day after the last injury that could have caused the death. As we shall see when we do murder and manslaughter, it is a part of the actus reus of the crimes of murder and manslaughter at common law that the death must occur within a year and a day after the injury inflicted. If the death occurs more than one year and a day after the injury, the accused cannot be guilty of murder of manslaughter. D was indicted for manslaughter. He was convicted by the jury, and sentenced by the judge. He appealed. Held, his conviction must be

quashed as the prosecution had not been able to prove the actus reus. The child's death had occurred at a time longer than that required for D to be found guilty of manslaughter. His conviction was quashed in the absence of an actus reus of the crime. Elements of the actus reus: In our definition of the actus reus, we

mentioned certain components of it. To refresh your memory, we repeat them here. The actus reus (conduct) includes acts and omissions, consequences and surrounding circumstances (states of affairs). Let us look at these components. Acts: An act of either commission or omission may be deemed an actus reus. The act must be proven to have been the act of the accused. It is possible for some action of mine to lead to a result forbidden by the criminal law, but yet that action is not my "act", in a legal sense. To be my "act" it must be proven to be a voluntary, conscious movement by me of my muscles. Thus, as we shall see in a later lesson, there is a defence of "automatism". The defence of automatism is available when the act was done while unconscious, or as a result of spasms, reflex actions, and convulsions. In such an instance, the commission of the act would not have been a result of my will. In Hill v Baxter [1958], the accused was stung by bees while driving, as a result of which he lost control of the vehicle, which hit and killed the deceased. Held, there was no actus reus on the accused's part, resulting in the deceased's death. He had the defence of automatism. In R v Burgess [1991], the accused suffered from apoplexy. While under an attack of the illness the accused wounded the victim. Held, the accused's action was involuntary, and he had not committed the actus reus of wounding.

Compare the leading case of Bratty v AG for Northern Ireland [1963]. In that case, the defendant, D, took off a girls stocking and strangled her with it. There was medical evidence that he was suffering from psychomotor epilepsy which might have prevented him from knowing the nature and quality of his act. He pleaded the

defences of automatism and insanity, but the jury rejected them. On appeal his condition was held to be evidence of insanity. Lord Denning indicated that the

defence of automatism has narrow limits as a defence. It is confined to acts done while unconscious and to spasms, reflex actions, and convulsions. As a result, the defendant was committed to a mental asylum for the criminally insane instead of being released. The first two cases show instances when an act of the accused does not amount in law to sufficient actus reus. Omissions: Generally, my omission to act which results in some injury or damage to another person does not impose any liability on me at common law. If I see my neighbour about to be injured, and I do not take action to help her, I have committed no offence at law. Now, let us look at some instances where an omission may amount to an actus reus. Typically, an omission amounting to a crime arises where a statute imposes a duty. So, under the Road Traffic Act it is an obligation of a person involved in a traffic accident to report the accident to the police station. Any driver not complying with this duty commits an offence. Similarly, under the Customs Duties Act it is an obligation to pay customs duties on goods imported. Anyone failing to do so commits an offence. Additionally, an omission may render one criminally liable at common law. This may happen in cases of (a) contractual duty; (b) by virtue of holding a public office; (c) undertaking to care for another person; (d) relationship; (e) where there is a duty to minimise the consequences of one's own act; and (f) as a consequence of an action. (a) Contractual duty: In R v Pittwood [1902], Pittwood, the railway keeper, failed to close the gate at a railway crossing before the train came. This resulted in the death of the driver of a vehicle which attempted to cross the line. Pittwood owed the public a duty to act arising out of his contract of employment. His inaction amounted to a breach of his contractual duty as a consequence of which a life had been lost. Held, Pittwood was guilty of manslaughter.

(b) By virtue of holding office, professional responsibility: In the leading case of R v Adomako [1995], the accused anaesthetist, was found guilty of manslaughter for failure to perform on time a procedure during surgery, resulting in the patients death. He had failed to discover a disconnected endotracheal tube, even though an alarm went off after the disconnection to which Adomako should have been alerted. Held, such recklessness on the part of the accused in ignoring the alarm and failing to discover the tube, resulting in the death of the patient, amounted to the crime of manslaughter. (c) Undertaking to care for another: Where one undertakes to care for an aged, infirm or physically or mentally challenged person, one may be found liable for failing to discharge that undertaking. In the leading case of R v Stone and Dobinson [1997] the parties, an unmarried couple, had an elderly relative (the sister of one of them) living with them. She suffered from anorexia nervosa. She later became incapable of caring of herself. She refused to see a doctor or to leave her room. Stone was nearly blind and of low intelligence. Dobinson was described as

ineffectual and inadequate. They made some effort to help her by trying to trace her doctor and by washing and feeding her. They failed to make contact with the doctor. She subsequently died. The couple were convicted of manslaughter and appealed. Held, the couple was under a duty to summon medical help for the victim if they could not care for her themselves. The jury was entitled from the evidence to find that a duty of care had been assumed by them, and that they had failed to discharge this duty. They had shown indifference to an obvious risk. Their appreciation of the risk, coupled with a determination nevertheless to run it, was reckless. appeals were dismissed and their conviction for manslaughter upheld. (d) By virtue of relationship: Parents or persons in loco parentis have a duty to care for their child. In R v Gibbins & Proctor [1918], a father and his girlfriend neglected to feed the father's child, as a result of which the child died. Held, they were guilty of murder. (e) Duty to minimise own act: Where the actions of the defendant, D, lead to a state of affairs, D may incur liability even if D acted innocently. This occurs where the act might cause harm, and D does nothing to avert it. In the leading case of R v Miller [1983], D went to sleep with a lighted cigarette in his hand. He awoke to find his mattress smouldering. He did nothing about it. He moved into an adjoining room where he went to sleep. The house caught fire and D was charged with arson. Held, D was guilty of arson. He should have realised that if he did not put out the fire Their

he had innocently caused, damage would ensue. He had a duty to make an effort to put the fire out. (f) Consequences of ones action: As we saw earlier, the consequences of one's action is a part of the actus reus. In R v Shivpuri [1987], the defendant, S, was convicted for attempting to be knowingly involved in dealing with a prohibited drug, contrary to statute. S had been arrested by customs officials while in possession of a suitcase. The suitcase contained material, which S said he knew to be a

prohibited drug. It turned out that the substance was not a prohibited drug but something similar to snuff. S's defence was that he could not be guilty of an offence as the substance was not a prohibited drug. Held, by attempting to bring about an illegal consequence, S was guilty of the criminal offence of attempting to be knowingly involved in dealing with a prohibited drug. Another instance when the consequences of A's action can lead to criminal liability occurs where that action results in the injury or death of B who takes evasive action to save himself from A. So, where a victim, fearing her attacker, jumps out of a window and is, the defendant can be found guilty of causing her injury. In these instances, where the accused does not directly inflict the injury, but his actions indirectly cause the injury, there are two criteria which must be fulfilled. The first criterion is that the jury must be satisfied that a reasonable and responsible man in the assailants position, could have foreseen the consequences of his action. The second criterion, applicable only in fatal cases, is that the unlawful act was such as to raise in a sober and reasonable person a recognition that the person attacked would suffer harm, albeit not serious harm. What if it is a third party who is injured? The rule is that if a third party reacts reasonably to an accused's threat, the accused will be liable for the consequence. An example of this was seen in R v Paget and Pemberton [1983]. There, while armed with a shotgun, the accused held a pregnant girl hostage using her as a shield while he fired at the police. The police fired back, killing the girl. The accused was found guilty of manslaughter. His appeal, on the ground that it was the police's action, a novus actus interveniens, and not his action, which resulted in the girl's death, was unsuccessful. What if the victim receives improper medical treatment after being injured by an assailant, resulting in the victim's death? The rule is that an accused must take his victim as he finds him. The court will look at the cause of the victim's death. See

R v Cheshire [1991]. There, the bullet wounds which the defendant had inflicted on the victim had ceased to be a threat to life. There was evidence that the victims death was caused by the tracheotomy performed and negligently treated by the doctors so that it narrowed his windpipe and caused asphyxiation. The Court of Appeal upheld the conviction. The test proposed by the Court in R v Cheshire is not easy to apply: Even though negligence in the treatment of the victim was the immediate cause of his death, the jury should not regard it as excluding the responsibility of the accused unless the negligent treatment was so independent of his acts, and in itself so potent in causing death, that they regard the contribution made by his acts as insignificant. In R v Malcherek and Steel [1981], where the victims life support systems had been turned off, resulting in the victims deaths, two appeals against convictions for murder were dismissed. Turning off the life support in a situation where the deceased was brain dead does not break the chain of causation. Where the victim's religious belief forbids him to take a blood transfusion, there is no break in the chain of causation if he dies. This was decided in R v Blaue [1975]. There, the defendant stabbed the victim, a young girl, and pierced her lung. She was told she would die if she did not have a blood transfusion. Being a

Jehovas Witness, she refused on religious grounds. She died from the bleeding caused by the wound. The accused was found guilty of murder. Surrounding circumstances or state of affairs: We look now at what role the surrounding circumstances can play in causing an accused person to be criminally liable. In these cases, the accused's willed action is not the issue. The existence of the state of affairs or the surrounding circumstances is enough. So, for example, in certain cases, it is sufficient that the accused is "found" or is in "possession". These are usually statutory offences. So, under section 265 of the Criminal Code2 of Anguilla, it is an offence to be found in possession of an item which is reasonably suspected of being stolen without a satisfactory explanation of how he came by it. Note, there is no need to prove he stole the item. It is the circumstance of his being in possession of it that is the offence. Such crimes have been known to result in unreasonable convictions. So, in R v Larsonneur [1933], the accused had been refused leave to enter the United
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RSA c C140.

Kingdom. He was brought to the UK by the police. He was found to have been rightly convicted of the offence of "being found" in the United Kingdom. See also Winzar v Chief Constable of Kent (1983). There, the accused was taken to a hospital on a stretcher. Being found to be drunk he was told to leave. He was seen slumped in a chair in the corridor and was apprehended by the police and taken to a car stationed outside the hospital. He was charged and convicted for "being found" drunk in the highway. (Both this case and Larsonneur have been criticised by Smith and Hogan as "peculiarly offensive" because of the involvement of the police. You will no doubt conclude that the actus reus of a crime is not always a straightforward issue. (ii) Mens rea Elements of the mens rea: We have already examined how the actus reus affects criminal liability. We shall now look at the mens rea in much the same way. Firstly, let us revise our definition of the mens rea. We said the mens rea refers to the accused's state of mind. This includes specific intention, as well as recklessness, gross negligence and knowledge, depending on the required ingredient for the particular offence. For an accused to be guilty of an offence, the prosecution must prove that the accused's "defined state of mind" must have "caused the event". We shall be looking at the following elements of the mens rea: (a) intention; (b) recklessness; (c) negligence; (d) blameless inadvertence. The question is, in a particular crime does the prosecution have to prove a specific intention, or will recklessness, negligence, or even blameless inadvertence suffice for the commission of the crime? (a) Intention and the mens rea: We refer to some crimes as crimes of specific intent. These include murder, theft, burglary, and wounding with intent. By the nature of these crimes, the accused apparently sets out to do something and takes steps to do it, achieving the result or the probable consequences. For

example, A intends to shoot to kill B and fires a gun in B's direction, killing or wounding him. Either consequence can arise from that action, and A will be

regarded as having the mens rea of the crime. This is referred to as "direct" intent. The specific intent for murder is with malice aforethought. The specific intent for theft is the intention of permanently depriving the owner of the item in question.

The specific intent of the crime of wounding with intent is the intention to cause a wound. If the prosecution cannot satisfy the jury that the accused had the particular intent required by the offence, eg, he may only have been careless or negligent, the accused is not guilty. We must distinguish crimes requiring a 'specific intent', such as malice aforethought for murder, from crimes of 'basic intent'. Crimes of assault and battery are crimes of basic intent, requiring either intention or recklessness. As we shall see when we come to look at defences, one important distinction between crimes of specific intent, eg, intent to do grievous bodily harm, the defendant can introduce evidence of intoxication to deny that the had the necessary mens rea. defence would not be available in a crime of basic intent. It is possible for a person to be convicted of a crime requiring a specific intent even if only indirectly. These are said to be cases of oblique intent. Say A intends only to frighten B, and approaches him with a gun. B sees A approach him and screams before trying to wrest the gun from A. The gun goes off, injuring B. A is charged with wounding with intent. He did not have the specific intent to wound. Yet, he can be convicted of the offence. In such a situation, A is said to have oblique intent. He should have foreseen that the consequences of his actions might be just the injury that occurred. Whether or not he had the specific intent, he will be deemed to have had it. A trilogy of cases in 1985 to 1986 examines the questions that a jury must consider to determine whether the accused could have foreseen that consequence from which his intention can be established. The cases are R v Moloney [1985]; R v Hancock and Shankland [1986]; and R v Nedrick [1986]. In Moloney, the appellant was convicted of murder. He had shot his Such a

stepfather with a shotgun in the early hours of the morning. Both the appellant and the victim had been very drunk and had started an argument as to which one was faster at loading and shooting a shotgun. The appellant claimed that he had not intended to injure the victim. The trial judge directed the jury that in law a man intends the consequence of his act where he desires it to happen; or where he foresees that it will probably happen, whether or not he desires it. An appeal against conviction was dismissed by the Court of Appeal. On appeal to the House of Lords the conviction was quashed, and a conviction for manslaughter substituted. Held, the jury did not need to be directed on the meaning of intention, but that in cases

where some reference to foresight of consequences was necessary, it must be made clear that such foresight is not equivalent to intention, but is evidence from which intention may be inferred. A jury would be entitled to infer intention in a case where the consequence was natural in the sense that in the ordinary course of events a certain act will lead to a certain consequence unless something unexpected supervenes to prevent it. Murder is a crime of 'specific intent', and the evidence of the defendants intoxication was relevant. It was up to the jury, considering all the evidence including the defendant's drunkenness, to decide whether he intended to kill or cause grievous bodily harm to his step-father. The fact of the drunkenness was crucial because otherwise it would have been unbelievable that a sober man shooting a gun a few feet away from his step-father did not intend to seriously harm him. However, taking into account the drunkenness, the defendant's story becomes believable and it would be possible for a jury to decide that the defendant did not have the necessary intention. In Hancock and Shankland, two striking miners wished to teach a lesson to a miner who was breaking the strike and going to work. They pushed heavy concrete blocks from the parapet of a bridge which struck a taxi taking the miner to work. It killed the taxi driver. They said they intended to push the blocks on to the middle lane, not the inside lane in which the taxi was driving, and that they intended to frighten the working miner and to prevent him from going to work, and not to hurt anyone. At their trial for murder the judge carefully followed the Moloney

guidelines, and directed the jury that they might convict if the injury was the natural consequence of the accuseds action. The Court of Appeal held that the conviction must be quashed. The guidelines were defective. The jury must be directed that they can only convict of murder if the injury was a direct consequence and a moral certainty or overwhelming probability of the accuseds action. In Nedrick v R (1986), N who threatened to burn out P against whom he had a grudge, poured paraffin through the letter box of her house and set it alight. Ps child died and N was convicted of murder. His conviction was quashed and a verdict of manslaughter substituted. The court identified two questions which a jury must ask themselves. These are: (1) How probable was the consequence, which resulted from the defendant's voluntary act? and (2) did he foresee that consequence?

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In the case of Hyam v DPP [1975], the appellant had set fire to a dwellinghouse by pouring a half gallon of petrol through the letter box and igniting it with a newspaper and a match. Asleep in the home were Mrs Brown and her three

children. Mrs Brown and one child escaped alive through a window. Two of the children died as a result of asphyxia by the fumes generated by the fire. The

appellants motive was jealousy of Mrs Brown. She was the current lover of a Mr Jones of whom the appellant was the discarded, or partly discarded, mistress. Her account of the fire was that she started it only with the intention of frightening Mrs Brown into leaving the neighbourhood, and she did not intend to cause death or grievous bodily harm, the specific intent of the charge of murder which she faced. The trial judge directed the jury that the prosecution must prove, beyond all reasonable doubt, that the accused intended to kill or to do serious bodily harm to Mrs Brown, the mother of the deceased. If the jury was satisfied that when the accused set fire to the house she knew that it was highly probable that this would cause death or serious bodily harm then the prosecution would have established the necessary intent. It did not matter if her motive was to frighten Mrs Brown. The accused was convicted of murder and appealed. The Court of Appeal dismissed the appeal and she appealed to the House of Lords. In the House of Lords, it was confirmed that the mens rea of murder is malice aforethought express or implied. Express malice means with intent to kill, while implied malice means with intent to do serious bodily harm. It is not sufficient on proof that when doing the act which led to the death of another the accused knew that it was highly probable that that act would result in death or serious bodily injury. A consequence foreseen as highly probable is not the same as a consequence which is intended. However, the court ruled that even if foresight of the probable consequences is not the same thing as intent, it can, nevertheless, be an alternative type of malice aforethought. Malice aforethought is a state of mind in which there is knowledge that the act which causes death will probably cause the death of or grievous bodily harm to some person, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused, or by a wish that it may not be caused. If a man in full knowledge of the danger involved, and without lawful excuse, deliberately does that which exposes a victim to the risk of probable serious harm or death, and the victim dies, the perpetrator of the crime is guilty of murder and not manslaughter to the same extent as if he had actually intended the consequence to follow. The

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appeal was dismissed. (b) Recklessness and the mens rea: Let us look at another issue

concerning the mens rea. The question for some offences is, was the accused reckless in doing as he did? Recklessness arises where A, not intending to cause a certain harm, takes an unjustifiable risk in causing it to occur. Emphasis is on the word unjustifiable". There are two types of recklessness, (1) subjective, and (2) objective. (1) Subjective recklessness R v Cunningham [1957] is the leading case. There, the defendant, D, tore a gas meter from the wall of the cellar of an unoccupied house, in order to steal money from it. He left the gas gushing out, with the result that it seeped into a neighbouring house endangering Ps life. D was convicted under section 23 of the Offences

Against the Person Act 1861 for maliciously administering a noxious thing so as to endanger life. The judge at first instance misdirected the jury that malicious meant wicked. The Court of Appeal quashed the conviction on the basis of the The Court laid down two essential elements to determine

misdirection. recklessness:

(a) The accused must have demonstrated an actual intention to do the particular kind of harm that in fact was done; or (b) the accused must have demonstrated recklessness as to whether such harm should occur or not. That is, the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it. It is neither limited to, nor does it indeed require, any ill-will towards the person injured. (2) Objective recklessness Here, the considerations of the reasonable man are crucial. The test for objective recklessness is, would a reasonable man have acted as the accused did? The leading case is R v Caldwell [1982]. In this case the accused, who held a grievance against the victim, the proprietor of a residential hotel, got himself very drunk and decided to set the hotel on fire. Some ten guests were resident in the hotel at the time. The fire was discovered and extinguished before serious harm was done. The accused was charged with the offence of recklessly endangering human life3. Lord Diplock laid down two tests in determining whether the accused had been reckless.

See section 217 of the Anguilla Criminal Code.

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The accused is reckless when he (a) does an act which in fact creates an obvious risk that property would be destroyed or damaged; and (b) the accused, when he does the act either has not given any thought to the possibility of there being any such risk, or has recognised that there was some risk involved and has nevertheless gone on to do it. Objective recklessness does not apply to offences against the person where a person will not be guilty of an offence unless he foresaw that he would cause harm. The mens rea of assault is intention or recklessness as to the creation of an apprehension of unlawful force. The mens rea of battery is intentionally or recklessly using force against someone. Look, for example at the cases of R v Spratt [1991], R v Parmenter [1992] and R v Savage [1991]. In Spratt, the accused, S, had fired an air pistol from his flat into the square below. A young girt playing in the square was injured by two pellets, which hit her. S's explanation was that he was aiming at a sign on a rubbish chute and he did not know anyone was there, and that he would not have fired the pistol had he known someone was there. He pleaded guilty at his trial to assault occasioning actual bodily harm, his counsel saying that it was based on recklessness. On appeal

against sentence, doubt was raised about the correctness of the conviction. The Court of Appeal allowed S to appeal instead against his conviction. Held, he was not guilty of the offence unless he foresaw that he would occasion actual bodily harm. In Parmenter, the accused had injured his child by rough handling. He had been convicted on four counts of unlawfully and maliciously causing grievous bodily harm to his infant son over a period of time. In his defence, P said that he was not aware that his manner of handling the child would have resulted in the injuries caused. On appeal, he partially succeeded as the House of Lords substituted a lesser charge. In Savage, Mrs S, who held a grudge against her husband's former girlfriend, B, attempted to throw beer on her. The glass fell from S's hand and B's wrist was cut by broken glass. purposely. In her evidence S denied that she had let the glass slip

At first instance, the jury was directed that S's deliberate action of

throwing the beer on B constituted an assault and that if she unintentionally let go of the glass so that it caused the wound, she was guilty. The Court of Appeal quashed S's conviction in relation to the wound, holding that S would be guilty only if she

13

foresaw that some physical harm would result from her act. The Court substituted a conviction for the lesser offence of assault occasioning actual bodily harm for which no specific intent is required. Parmenter and Savage went before the House of Lords on appeal and were considered together. Before their lordships' House, the question was whether the accused persons were property convicted, given on the law of recklessness. Their lordships discussed the leading cases of Cunningham, Caldwell and Mowatt and concluded that the appeal in Savage would be dismissed. Parmenter was allowed in part, their Lordships substituting another charge. Significantly, they held that it unnecessary that the accused should either have intended or have foreseen that his unlawful act might cause physical harm of the gravity described in the sections of the Offences Against the Person Act, that is, a wound or serious physical injury. It is enough that he should have foreseen that some physical harm to some person, albeit of a minor character, might result. (c) Crimes of negligence The question is, when is mere negligence sufficient for the jury to find that the accused had the necessary mens rea. 'Negligence' in this sense connotes 'gross negligence'. The issue that is put to the jury is whether a reasonable man would have acted as A did. Cases involving manslaughter are usually those considered under this head, as in R v Adomako [1994], which we looked at above. The anaesthetist in this case was convicted of manslaughter on the basis that his conduct had fallen way below that of a reasonable man (meaning a reasonable anaesthetist!). (d) Blameless inadvertence We come now to the fourth important element of the mens rea, when can an accused be found guilty of an offence when he appears to have been blamelessly inadvertent. There are situations when a person might not have foreseen that his actions had criminal consequences, but where he can still be guilty of an offence. There are others where a statute imposes a duty and a person might not have been aware that his actions were in breach of the statute. In these cases, the accused might reasonably have failed to foresee the consequences of his action, or where statute might have imposed a duty on him. There are two limbs to this head, namely (i) crimes of strict liability, and (ii) transferred malice.

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(i) Crimes of strict Iiability: Crimes of strict liability do not require mens rea in the same sense that other crimes do. The cases reveal, however, that the courts still examine the accused's mens rea. Public policy is an important consideration in these offences of strict liability. In these cases, the burden of proof is on the

accused, unlike in other cases when it is on the prosecution. These offences are usually creatures of statute. They are sometimes referred to as crimes of "absolute liability". Violations of road traffic legislation, dangerous drugs offences, and

violations of spirit licences, are among the most common occurrences. Another growing situation is that involving the protection of the environment. (a) Dangerous drugs: As you are no doubt aware, the issue of dangerous drugs is one of concern as traffickers present serious challenges to law enforcement personnel. In the Commonwealth Caribbean, all our countries have legislation In dangerous drugs cases, the

dealing with the nemesis of dangerous drugs.

offences are usually ones of strict liability. So, once you are found in possession of a prohibited drug, it matters not what your knowledge or state of mind was. You will be strictly liable for the offence. Here are two (2) interesting cases: In Sweet v Parsley [1970], the defendant, D, a teacher, let to tenants rooms in a farmhouse of which she was a sub-tenant, retaining a room for herself. The tenants smoked cannabis on the premises. D was convicted of the offence of being concerned in the management of premises used for the purpose of smoking cannabis, even though it was proved that she had no knowledge of it. The House of Lords, no doubt reacting to public uproar over the unfairness of her prosecution, quashed her conviction, based on the principle that the statutory provision required some element of mens rea. The section does not appear to require any mens rea. It is an offence of strict liability. In R v McNamara [1988], X was apprehended for being in possession of a box which he was carrying on the back of his motor cycle. The box contained a cannabis resin. His explanation was that he was delivering the box for a man, whose name he refused to give and that he thought the box contained pornographic material or private videos. He was charged under a relevant statute (Misuse of Drugs Act s. 5(3)). The trial judge had directed the jury to convict if they were "satisfied so that you are sure that he had possession of the contents of the cardboard box ..., and knew that the box contained something, unless on the

15

balance of probabilities he has proved that he neither knew, suspected, nor had reason to suspect the contents of the box was any controlled drug". This direction was approved by the Court of Appeal and the accused's appeal against conviction was dismissed. (b) Pollution: As a matter of public policy, parliament usually makes pollution cases offences of strict liability. Once you have polluted the environment, parliament does not want to know what your state of mind was. It is sufficiently dangerous to the public to oblige all persons in control of hazardous materials strictly liable for their handling. The leading case is Alphacell Ltd v Woodward [1972]. There, the defendant, D, built and operated setting tanks, which had an overflow channel into a river and provided pumps to prevent an overflow. The pumps became obstructed with

vegetation, and an overflow of polluted water occurred. There was no evidence of negligence on D's part, nor that they knew that the pollution was taking place. They were convicted on the basis that liability for the offence was strict. (c) Spirit licence violations: Persons selling alcohol commit offences

whether or not they know of circumstances which make a particular act illegal. As a matter of public policy, they are required to ensure that they comply with the law. In Cundy v Le Cocq [1884], D was convicted for selling intoxicating liquor to a drunken person, contrary to a statutory provision. He did not know that the person was drunk. The relevant section did not include the word 'knowingly'. It was held that D was strictly liable, and there was no need to consider whether D knew, had the means of knowing or could with ordinary care have known, that the person to whom he served the drink was drunk at the time. (ii) Transferred malice: In 'transferred malice' cases, we examine whether D, having the mens rea of a particular crime, then does something which causes the actus reus of the crime in question, is liable even if the result is unintended. For example, D meaning to kill X, kills Y whom he believes to be X. He has no mens rea against Y. D would be liable for Y's murder on the basis of transferred malice. R v Latimer [1886] illustrates the point. In this case, D hit at X with his belt, hitting him slightly but wounding Y who was standing nearby. He did not intend to injure Y. D was held liable for the injury to Y. The actus reus and mens rea of the same crime coincided, even though D had not set out to hit Y.

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It is different where the mens rea and actus reus of the crime do not coincide. In such a case, D is not liable. R v Pembliton [1874] demonstrates the principle. There, D who was involved in a fight outside a public house threw a stone at X. The stone missed X but broke a window. The intention to commit a personal injury is different from the intention to do damage to property. He was convicted at first instance for malicious damage. The conviction was quashed on the basis that he did not have the mens rea for the result. In other words, the actus reus of malicious damage had not coincided with the mens rea of the crime. Consider the following scenarios: (1) Mary, Mrs Brown's household helper, takes a watch from Mrs. Brown's dresser and puts it in her bag. As she is about to leave the house, Mrs. Brown says, "Oh, Mary, I forgot to tell you to take the watch on the dresser. It is yours. (2) Mary takes the watch and leaves with it. Later that evening Mrs Brown is looking for the watch to wear to a reception and discovers it missing. Mrs Brown calls the police who go to Mary's house and find the watch in a bag, under Mary's bed. In example (1) Mary's taking of the watch demonstrates both the mens rea and the actus reus of theft. She has taken it up and put it in her bag with the intention of permanently depriving the owner of it. Her actions, the state of affairs described, is the evidence of her intention, thus satisfying the need for the prosecution to prove the "defined state of mind" of the offence of theft. However, when Mrs. Brown tells Mary the watch is hers, both the mens rea and the actus reus of theft are destroyed as you cannot steal from yourself. (This will become clearer later when we look at theft in greater detail). In example (2) the state of affairs or event coincides with the state of mind. By taking the watch away to her home, and hiding it, Mary's intention seems clearly to be to deprive Mrs Brown permanently of it. The prosecution will have no difficulty in satisfying the jury that both the actus reus and the mens rea of theft existed, and she would be liable for the theft of the watch. Burden of proof Civil and criminal law are both concerned with liability for wrongful conduct. The same act, such as an assault, may amount to both a civil wrong (a tort) and a crime. In the case of a tort, liability is owed to the injured party. He is entitled to be

17

compensated for any losses by the payment of damages. In the case of a crime, liability is owed to the state. The punishment may be a fine or imprisonment or some other penalty prescribed by law. The 'burden of proof' refers to who must prove a particular fact. It is

fundamental to a criminal trial that the prosecution must prove its case. A person, however clear the evidence seems to be, is innocent until proved guilty. The leading case is Wollmington v DPP [1935], where the accused was convicted of murder, having shot his wife. His wife had left him a short time after their marriage. He went to see her, taking a shotgun with him. He claimed that he had intended to tell her that he would shoot himself if she would not return, and the gun went off accidentally, killing her. At the trial, the trial judge directed the jury that once it was proved by the prosecution that the accused had killed his wife, the shooting was presumed to be murder, unless the accused could satisfy the jury that the killing was accidental or justified, or should be manslaughter rather than murder. His appeal was dismissed by the Court of Appeal but allowed by the House of Lords. Held, if the judge were able to rule that the burden of proof had shifted to the accused, to prove that he was not guilty, that would be making the judge decide the case and not the jury. The accused is entitled to the benefit of any doubt. While the prosecution must prove the guilt of the prisoner, there is no such burden laid on the prisoner to prove his innocence. It is sufficient for him to raise a doubt as to his guilt. He is not bound to satisfy the jury of his innocence. Throughout the web of the English criminal law one golden thread is always to be seen: that it is the duty of the

prosecution to prove the prisoner's guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. The prosecution has to prove its case beyond reasonable doubt. The judge must direct the jury that it is not to convict unless it is convinced that all the elements of the offence were present. The phrase 'beyond reasonable doubt' is the

conventional way of expressing the idea that the jury must feel sure of the accused's guilt. It is stronger than the standard of proof in a civil case. In an action for negligence, for example, the plaintiff must only prove the claim 'on the balance of probabilities'. [Further reading: Smith & Hogan, Chapters 4, 5, 7 Herring, Chapters 1,3,4,5 and 6]

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Activity 1.1 Is each of the following statements true of false? (1) The Latin term for an intervening or supervening event is "novus actus interveniens'". (2) A administers a lethal dose of poison to D. Before the poison takes effect, D, who has a history of heart disease, dies from a heart attack. A is liable for murdering D. (3) A stabs D and believing D to be dead, throws D's body into a pond. D dies from drowning and could probably have survived, had he been able to swim. A is liable for murdering D. (4) A shoots B who is grievously wounded and is expected to die within an hour. B swallows poison and dies before the hour elapses. A is liable for B's death. (5) A hits B as a result of which B falls and hits his head, then lapses into a coma. B is given incorrect medication and dies from a heart attack. A is liable for B's death. (6) C is diagnosed with a rare form of bone cancer. Her mother X, does not agree with the doctor's advice that C should undergo some special treatment. Instead, X secludes C inside her religious community where she relies on faith healing and alternative medicines. C dies from the cancer. X is liable for Cs death.

Activity 1.2 Identify the particular heading of the mens rea under which each fact situation falls, citing a case. 1. Mallards Sugar Ltd. operates a refinery in Endeavour. From time to time residents have complained that effluent from the factory has been allowed to contaminate the Endeavour River. The Environmental Agency conducts a survey and finds that effluent is in fact coming from the factory and prosecutes them. They are convicted under the relevant statute. Issue: Case: 2. Barry is driving his car with a group of friends who have come down from Canada for the holidays. They are on their way to the beach and come up on a roadblock mounted by the police, who stop Barry and search his car. At the bottom of a backpack in the trunk the police two sticks of crack cocaine and arrest Barry and all the occupants of the car. The backpack belongs to one of the visitors and Barry does not know what is in their bags. Issue: Case: 3. X throws a stone at Y who shies away from it. The stone lands in the windscreen of Z's Mercedes Benz, breaking it. Issue: Case: 4. A, a diabetic, is admitted to hospital in a coma. B, a private nurse assigned to

19

A, fails to give A insulin at the times ordered by Dr. D and A dies. Issue: Case: 5. Abbot tells Sheriff "I am going to get even with you". Abbot sets fire to Sheriffs house. All of Sheriffs family and Sheriff escape, except his wife, who is burnt to death. Issue: Case:

Activity 1.3 Read the problems which follow, then decide, is there an "actus reus of a crime" or "no actus reus of a crime", as appropriate. (i) D buys a pound of compressed leafy substance, which he believes to be marijuana. At the airport, D is stopped and confesses to having the drug. It is later found that the substance is a medicinal herb called "cerasee" and not marijuana. ------------------------(ii) Marcia believes she is pregnant and goes to a doctor for the purpose of procuring an abortion. Abortions are illegal in her country. The doctor administers a medicine to Marcia and finds that Marcia is not pregnant. -------------------------(iii) Harold enters Mr. Jones' house at night, with the sole purpose of stealing a painting. He believes Mr. Jones is not at home. To Harold's surprise, Mr. Jones is home. In attempting to escape, Harold bounces into a mantelpiece, breaking several pieces of crystal and a Ming vase. -------------------------(iv) X has sexual intercourse with Y who he believes to be 18 and who tells him she is 18. Y is, in fact, 14. --------------------------

Activity 1.4 Read each scenario, then decide whether we have both the actus reus and the mens rea coinciding for criminal liability to arise: (i) Fred and Barney want to attend a cricket match without paying the entrance fee. They scale the back fence and, seeing two empty seats, they watch the match. (ii) Fred and Barney want to attend the cricket match. They climb a tree overlooking the field and watch from there. (iii) Unknown to B, A is already dead when he sneaks into A's room and injects him with a deadly poison.

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(iv) X, the householder, badgers Y to have sexual intercourse with him. She always refuses but says to him one day, "We will see what happens"'. That night, X goes to Y's room and has sexual intercourse with her, despite her protests. (v) Jack and Jill are in a fight at the well. Jill hits Jack on the head with her pail, as a result of which he suffers a concussion and faints.

Activity 1.5 Read the following scenarios, and then determine whether there is the mens rea of a crime: (i) A throws a stone into a crowd, intending to hit B. The stone misses B, but catches C, hitting him in the eye, resulting in blindness. (ii) D is suspected of several recent burglaries in the community of Tranquility. One night, the police apprehend a man who is seen in Miss Duffs yard crouching under a tree. In his bag they find several implements including a torch, a crowbar and pliers. (iii) X sharpens a machete and leaves with it, intending to kill Y. Y disarms him, whereupon X hits him on the head with an iron rod. Y does not die. (iv) A arranges with B, a bank teller that he is going to hold up the bank where B works. B gets cold feet, but is unable to get a message to A. A robs the bank and is arrested. He reveals B's part in the plot.

Activity 1.6 Identify the particular heading of the mens rea under which each fact situation falls, citing a case. 1. Mallards Sugar Ltd. operates a refinery in Endeavour. From time to time residents have complained that effluent from the factory has been allowed to contaminate the Endeavour River. The Environmental Agency conducts a survey and finds that effluent is in fact coming from the factory and prosecutes them. They are convicted under the relevant statute. Issue: Case: 2. Barry is driving his car with a group of friends who have come down from Canada for the holidays. They are on their way to the beach and come up on a roadblock mounted by the police, who stop Barry and search his car. At the bottom of a backpack in the trunk the police two sticks of crack cocaine and arrest Barry and all the occupants of the car. The backpack belongs to one of the visitors and Barry does not know what is in their bags. Issue: Case: 3. X throws a stone at Y who shies away from it. The stone lands in the windscreen of Z's Mercedes Benz, breaking it. Issue:

21

Case: 4. A, a diabetic, is admitted to hospital in a coma. B, a private nurse assigned to A, fails to give A insulin at the times ordered by Dr. D and A dies. Issue: Case: 5. Abbot tells Sheriff "I am going to get even with you". Abbot sets fire to Sheriffs house. All of Sheriffs family and Sheriff escape, except his wife, who is burnt to death. Issue: Case:

Activity 1.7 Understanding the elements of the mens rea Which of the following statements is true or false? 1. A direct intent is where an accused has the intent or desire of making something happen. True [ ] False [ ] 2 Objective recklessness does not apply to offences against the person. True [ ] False [ ] 3. In subjective recklessness, there is no requirement that the accused bore ill will towards the victim. True [ ] False [ ] 4. In crimes of strict liability the accused will always be convicted as the law is applied strictly. True [ ] False [ ] 5. In cases of negligence, resulting in death, the accused will be convicted of manslaughter, not murder. True [ ] False [ ] 6. Large corporations are always convicted for reports of environmental breaches. True [ ] False [ ] 7. In transferred malice, a defendant will be convicted even if the actus reus of the crime, which results, is different from the mens rea of the crime he intended. True [ ] False [ ] 8. Theft: is a crime of specific intent. True [ ] False [ ] 9. Crimes of strict liability are usually creatures of statute. True [ ] False [ ] 10. Recklessness is the taking of unjustified risk. True [ ] False [ ]

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Activity 1.8 10. No act is punishable if it is done involuntarily and an involuntary act . . . means an act which is done by the muscles without any control by the mind. (Lord Denning in Bratty v AG for Northern Ireland.) With reference to decided cases, explain how this view relates to criminal liability and involuntary actions. 30 minutes [2008, Unit1, Paper 2] 25 marks

Feedback: This is your first problem-type question. CXCs advice on how to handle this type of question reads as follows:
1. Candidates must follow instructions. Responses should not be merged; for example, Part (a) must be answered separately from Part (b). 2. Candidates must use language that is grammatically correct, formal, and impersonal, not general, vague or colloquial. 3. Candidates are encouraged to use the following format (summarized as IRAC) when answering problemtype questions. I - issue (identification) R - rule of law (state) A - application of law to facts C - conclusion 4. Candidates must support their responses with legal authority, namely: Case Law Statute Legal writers 5. Candidates must deal with issues and applicable law and refrain from restating the question, except in so far as a principle of law relates to stated facts. Instead, candidates should strive to answer the questions precisely. 6. Candidates need to be more familiar with definitions of terms and concepts, and should offer definitions of terms as appropriate.

Activity 1.9 8.(a) With reference to decided cases, distinguish between 'subjective recklessness' and 'objective recklessness'. (b) Assess the extent to which recklessness affects criminal liability. 30 minutes. [2008, Paper 2] Feedback: 25 marks

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2. OFFENCES AGAINST THE PERSON The offences against the person that you are required to do include fatal and nonfatal crimes. Crimes that result in death fall generally under the law of "homicide". "Homicide" refers to (i) murder and (ii) manslaughter. (i) MURDER With violent crimes, including murders, increasing in most of our various jurisdictions, citizens are demanding more punitive action. In fact, on the question of the appropriate penalty for murder, there appears to be unanimity across the region that we should retain capital punishment. The issue inspires passionate debate and in a later lesson, we shall examine the equally convincing arguments put forward by those in support, and those against, when we come to examine sentencing practices in the region. Definition of murder: Let us examine the definition of murder. Coke CJs "classic definition of murder", Notwithstanding its archaic wording and subsequent statutory interventions, is still essential. It is as follows: Murder is when a man of sound memory, and of the age of discretion, unlawfully killeth within any county of the realm any reasonable creature 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, die of the wound or hurt, within a year and a day after the same. To get a good grasp of Coke's definition, let us underline the key elements in the definition. These are: (i) "A man of sound memory and of the age of discretion"; (ii) "Unlawfully killeth within any county of the realm any reasonable creature in rerum natura under the king's peace"; (iii) "With malice aforethought either expressed by the party or implied by law"; (iv) "So as the party, wounded or hurt, die of the wound or hurt within a year and a day after the same". In Anguilla, by section 186 of the Criminal Code4, murder is committed where any person, with malice aforethought express or implied, causes the death of
4

RSA c C140.

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another person by an unlawful act or omission. [Compare the two definitions and note what change has been made to the common law.] The nature of the crime: There are four (4) main elements of the crime of murder, as our definition shows. traditional definition of Coke CJ. (i) A man of sound memory and of the age of discretion. The accused, male or female, must be competent to form the mens rea of the crime. He or she must therefore not be insane or be suffering from diminished responsibility. He or she must also not be below the age of criminal responsibility as defined by statute. In Anguilla, the age of criminal responsibility is found at s.17 of the Criminal Code5. This provides that a person under the age of 10 years is not criminally responsible for any act or omission. A person between 10 years and under 14 years is only criminally responsible if it is proved that at the time of doing the act or making the omission he had the capacity to know that he ought not to do the act or make the omission. (ii) Unlawfully killeth within any county of the realm any reasonable creature in rerum natura under the king's peace". Several important issues arise here: (a) The killing must be unlawful. It is not always unlawful to kill another person. A hangman or executioner, performing his duties in accordance with the laws of the state is not guilty of murder. A person who kills another in self defense where, had he not acted in his own defense, the deceased would have killed him, is justified in doing the killing. We shall deal at length with self defence when we come to the lecture on Defences. A soldier in time of war who refuses to kill the enemy on the battlefield, commits a criminal offence for not killing. (b) 'In rerum natura' refers to the requirement that the victim must be a human being. This raises questions as to when a person begins or ceases to be one. This is important in respect of foetuses at one end, and at the other end, those who are considered 'brain dead' as against those who are 'heart dead'. (c) The killing must have occurred in the country in which the prosecution is
5

We will look at each one in turn, using the

RSA c C140.

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brought. A person cannot be tried and convicted in Anguilla for a killing that occurred, eg, in Antigua. Abortion: The medical termination of pregnancy by a physician is now in most instances legal in the UK and in Barbados. It remains illegal in Anguilla and the rest of the Commonwealth Caribbean except when performed in a hospital after two doctors have certified that the life or physical health of the woman is at risk, or the child would be born severely handicapped. In Anguilla, the statutory provision is s.183 of the Criminal Code, which provides that any person who, being with child, with intent to procure her own miscarriage, unlawfully administers to herself any noxious thing, or unlawfully uses any instrument or other means whatsoever with the same intent, commits an offence and is liable on conviction to imprisonment for 14 years. Similarly, the offence of abortion is committed by the person who with a similar intent unlawfully administers to any female, whether or not she is with child, or causes her to take, any noxious thing or unlawfully uses any instrument with the like intent. In Anguilla, if the woman is 28 weeks or more pregnant, and she goes through an abortion procedure, the offence becomes that of 'child destruction'. The punishment is imprisonment for life. The statutory provision is s.185 of the Criminal Code. The section provides that any person who, with intent to destroy the life of a child capable of being born alive, by any willful act or omission causes a child to die before it has an existence independent of its mother, commits the offence of child destruction and is liable on conviction to imprisonment for life. It is a defence if the procedure was done in good faith for the purpose only of preserving the life of the mother. It has recently been confirmed that the prescription of the morning after pill does not amount to an offence on the basis that the pill is widely regarded as a form of contraception, rather than producing a miscarriage. For the killing of a foetus to amount to murder it must have been expelled from the mother, and be alive at birth, at the time of the act causing its death. However, if the act against the foetus was committed before its birth but results in its subsequent death, after having been born alive, the prosecution may succeed with a charge of murder, or more likely manslaughter, against an accused. The unborn child is protected elsewhere within the criminal law, but not generally by the law of murder. The destruction of a foetus will be punishable as the crime of abortion

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unless it is protected by the provisions permitting a medical termination of pregnancy. In Anguilla, s.199 of the Criminal Code deals with whether a foetus is a 'person capable of being killed'. It provides expressly that a child becomes a person capable of being killed when it has completely proceeded in a living state from the body of its mother. As with the common law, in Anguilla it does not matter whether or not the baby has breathed, has independent circulation, or the umbilical cord has been severed. Once the baby has been born, it is murder to deliberately kill it. Once the foetus has not been delivered, it may be the offence of abortion to terminate its life, but it is not murder or manslaughter. Brain death: On the issue of 'brain death' as against 'heart death', the law relies upon medical science to a great extent. It has been held in an American case that brain death is sufficient for charge of murder. There it was held that the

disconnection of a respirator following brain death was not the cause of death. The accused who had attacked the victim and placed him in a coma was guilty of murder.. (iii) "With malice aforethought either expressed by the party or implied by law (the mens rea of murder) The rather quaint expression, malice aforethought, is a term of art and goes to the root of the mens rea of murder. It is not required that the accused had 'malice', meaning evil thoughts, towards the victim. Neither is it necessary that he had

thought about the crime before committing it. Malice here means only an intention to kill or cause grievous bodily harm. The leading case, R v Moloney [1985], (playing with guns, need for intent) has set out the two (2) criteria for determining the existence of 'malice aforethought'. These are that the accused had an intention either: (a) to kill any person, or (b) to cause grievous bodily harm to any person. See: R v Moloney [1985]; and see also Hyam v DPP [1975] (blazing newspaper through letterbox, need for knowledge that harm will result from one's actions and a reckless persistence in the action amounts to an intention to cause that result). The terms 'express malice' and 'implied malice' must be taken, respectively, to mean (a) the intention to kill and (b) the intention to cause grievous bodily harm.

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(iv) "So as the party die of the wound or hurt within a year and a day after the same". (The actus reus of murder) This is known as the common law 'year and a day rule'. In England, it has been abolished by the Law Reform (Year and a Day Rule) Act 1996, ceasing to affect homicides after June 17, 1996. In Anguilla, the year and a day rule was expressly abolished by s.201 of the Criminal Code. This common law requirement for a period less than a year and a day relates to the element of causation. It provides a convenient cut-off point up to, or after which, the victim's death can, or cannot be, attributable to the accused. This is what is referred to as the 'causal relationship' between the violator's act and the victim's death. (See R v Dyson [1908]). The issue of causation is a very important one, raising a number of complexities. Among these we find intervening and contributory events, the 'but for' principle, and contributory cause. Let us look at these in turn. (a) Intervening acts or events An intervening act or event which breaks the chain of causation so that it is the intervening act that is really responsible for the death of the victim is called in law by its Latin tag of a "novus actus interveniens". Here are some examples of intervening acts or events which do not amount to a novus actus interveniens: (a) A, the accused, inflicts an injury on D, the deceased. D who is a diabetic, dies from a complication arising from the injury but exacerbated by his diabetes. The question is, was the diabetes a novus actus interveniens, or is A liable for murder? The rule is that A must take his victim as he finds him. (b) A shoots D and injures him. D subsequently becomes depressed

because of his slow recuperation and commits suicide. Would A be liable for the death, or was the suicide a novus actus interveniens? The answer is that the deliberate shooting was an operating cause of D's death, and A would be liable at least for manslaughter if not for murder6. In R v Malcherek and Steel [1981], the appellants were convicted of murder. In each case, the appellants had seriously injured a victim. The victims were both put on life-support machines, which were switched off when the victims were found to be dead, according to the medically accepted tests of brain death. The appellants argued that the juries in their respective cases had been misdirected on the issues of causation. The court held that switching off life-support machines had not broken
6

See Smith & Hogan, 10th ed, p.48.

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the chain of causation between the injuries and the death of the victims. The court found that the injuries were the operating cause of death. The court did not decide whether death occurred before or after the life-support machines were switched off, or which tests should be applied to determine death. Whichever tests were applied, the victims had died, and the medical treatment was 'normal and conventional', given bona fide by competent and careful medical practitioners. Evidence that other doctors might have acted differently did not affect the issue of causation. appeals were dismissed. (b) The "but for" principle In showing that the accused's act caused the death, where there was some alleged novus actus interveniens, the prosecution must show that "but for" (that is, "were it not for'') A's act, D's demise would not have occurred. A will not be liable where D's demise would have occurred in the same way without the intervention. In R v Jordan (1956), A stabbed D who was admitted to hospital and died eight days later. Medical evidence was led to show that D died, not from the wound, which had substantially healed, but from a medicine administered to D to prevent infection. The Court of Appeal found that the medical treatment was palpably The

wrong" and allowed A's appeal. The wound must be shown to be a sine qua non direct cause. Wrong medical treatment does not always exonerate an accused. If the

original wound is still a substantial cause, then the death can properly be said to be the result of the wound. In R v Smith [1959], in the course of a fight between two soldiers of different regiments, D stabbed P twice with a bayonet. One of Ps

comrades, trying to carry P to the medical reception station, twice tripped and dropped him. At the medical station, the officer who was busy with other cases did not realise that one of the wounds had pierced a lung and caused haemorrhage. He gave P treatment that was found to be thoroughly bad and might well have affected his chances of recovery. There was evidence that if the victim had received

immediate and different treatment he might not have died. Ds conviction for murder was upheld, the court saying: ... if at the time of death the original would is still an operating cause and a substantial cause, then the death can properly be said to be the result of the wound, albeit that some other cause of death is also operating.

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(c) Contributory cause The cornerstone of the law of causation is that the prosecution must show that the defendant's act was a 'substantial and operating cause' of the harm. The accused's act need not be the sole cause, or even the main cause, but the act must be a substantial cause. The accused's act in contributing to the death must not be so minute that it will be ignored under the de minimis principle. The accused's wrongful act is weighed alongside any supervening events and it is for the jury to decide whether the supervening events are in essence the cause of the death. Under this head, we make a distinction between a 'cause' and a 'substantial cause'. There are a number of interesting cases, which explain the distinction, and we shall look at a few of them. In determining the 'cause' of death, the principle is that the wrongful act of the accused does not have to be the main cause, but it must be a contributory cause. If Anne puts poison into Charlotte's food, but before the poison takes effect Emily shoots and kills Charlotte, then Anne is no longer liable for her death. Emily, by her act of shooting, assumes responsibility for the death. Emily's act was a novus actus interveniens, breaking the chain of causation. If Jason knows that Nadia wants to kill Victor and Jason tells Victor to go to a bar, knowing that Nadia is there and will kill Victor, Jason still does not cause Victor's death if he is killed by Nadia. Nadia's act of killing is a free, deliberate and informed act which breaks the chain of causation. To understand how the court approaches the issue of causing death compare: R v Benge [1865] and R v Dalloway [1847]. In Benges case there was a railway accident after a foreman negligently arranged for tracks to be removed at a time when a train arrived. Additionally, he had placed a flagman at a shorter distance than required by the company's regulations. The driver of the train did not keep a proper lookout, and there was an accident in which the flagman died. The foreman was tried for manslaughter. Held, the foreman could be criminally responsible for the accident, even though the driver was also to blame. It was no defense that the negligent act of third parties played a role in the victim's death. A's original mistakes in removing the tracks at the wrong time and in placing the flagman at a wrong distance, resulting in the flagman's death was the primary cause, resulting in the foreman's liability for manslaughter. In Dalloway, a man was driving a horse and cart without properly controlling the reins or looking where he was going. He was not holding the reins but left them

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loose on the horse's back. A three year old child jumped out in front of the cart and was killed. The court found that even if he had been exercising all due care and control he would not have been able to avoid injuring the child as she jumped in front of the cart without any warning. Although 'but for' the driving of the cart the child would not have been injured, it was not true that 'but for' his negligence the child would not have been killed. That was the issue that was to be left for the jury. In R v Holland [1841], D waylaid and assaulted P, cutting him severely across one of his fingers with an iron instrument. P refused to follow the surgeons advice to have the finger amputated, although he was told that if he did not his life was in great danger. The wound caused lockjaw and P died. The question for the jury was whether, in the end, the wound was the real cause of death. It was held that the failure of P to accept medical advice did not break the chain of causation. Holland was followed in R v Blaue [1975]. The argument that medical

science had advanced greatly since 1841 and that a refusal to undergo medical treatment would now be unreasonable, did not impress the court. conduct was reasonable or not was irrelevant. [Further reading: Smith & Hogan, Chapters 13 and 14 Herring, Chapter 9] Whether Ps

(ii) MANSLAUGHTER Manslaughter may be considered the basic charge in respect of a homicide, and murder as an aggravated crime of killing with an intent to kill or cause grievous bodily harm. Manslaughter may be found where, even though the defendant has the mens rea for murder, the presence of an additional factor reduces what would otherwise be murder to manslaughter. This is traditionally known as voluntary

manslaughter. The most important of these are manslaughter by provocation and manslaughter by reason of diminished responsibility. Manslaughter also includes cases of homicide where the mens rea of murder is lacking, traditionally known as involuntary manslaughter. These include constructive manslaughter and

manslaughter by negligence or recklessness. In Anguilla, the offence of manslaughter is provided for at s.191 of the Criminal Code, which provides that any person who, by any unlawful act or omission, causes the death of another person commits the offence of manslaughter and is liable to imprisonment for life.

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(1) Voluntary manslaughter A person will be guilty of voluntary manslaughter where the facts reveal that he had the necessary mens rea and actus reus for murder, but the circumstances are such that he is partially excused. The factors which will lead to his partial excuse are: (a) provocation; and (b) diminished responsibility. (a) Provocation In Anguilla, s.189 of the Criminal Code contains the statutory provision on provocation. It provides that where, on a charge of murder, there is evidence on which a jury can find that the person charged was provoked (whether by things done or things said or both) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury, and the jury shall take into account everything done and said according to the effect which, in their opinion, it would have on a reasonable man. For the purposes of the section, provocation is any wrongful act or insult which is of such a nature as to be likely, when done to an ordinary person, or in the presence of any ordinary person to another person who is under his immediate care, or to whom he stands in a conjugal, parental, filial, or fraternal relation, to deprive him of the power of self-control and to induce him to assault the person by whom the act or insult is done or offered. Provocation is only a defence to murder, not, eg, to a wounding or an assault. If it is successful, it reduces the charge of murder to manslaughter. that is, if the prosecution charge an accused with murder, and the jury have a reasonable doubt that there might have been provocation by the deceased, they may return a verdict of manslaughter. If a defendant has a choice of the both of the defences of

provocation and self-defence, eg, if the death occurred during a fight, it is better for him to rely on self-defence, which if successful leads to a complete acquittal. The two important elements for an accused in seeking to satisfy the Court that he was provoked into committing the homicide are: (1) that he lost his self-control and acted on a sudden impulse, that is, without pre-meditation, as a result of something said or done; and (2) that he acted as any reasonable person would have acted, that is, the provocation was enough to make a reasonable person do as the defendant did.

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Let us take these elements in turn: Sudden Impulse: The first essential ingredient in the defence of provocation is that the accused must have acted on sudden impulse. It is never for the accused to prove that he acted on sudden impulse, the burden of proof is always on the prosecution, and it is for the prosecution to satisfy the jury so that they can feel sure that the accused did not act on sudden impulse. The jury can take all the evidence into account. This means that provocation will not apply to a defendant who is a particularly laid back individual, who in the face of a highly provocative incident does not lose his cool, but instead carefully plans his revenge. In R v Crocker [1989], a man smothered his wife with a pillow following her persistent pleas that he kill her as she was suffering from a painful fatal illness. His defence was that one day after being goaded by his wife, he placed the pillow over her face and suffocated her. He had reached the last straw. The court decided that his acts were fully controlled and so he could not use the defence of provocation. There was no sudden impulse in what he did. In R v Ibrams and Gregory [1981], the deceased had bullied the accused persons over a period of time. They had not been able to secure effective police protection. Anticipating that the deceased would have continued with his usual behaviour, the parties conspired with a young woman to get the deceased into a drunken state and then to encourage him to take her to his bed. The accused would then come into the room and break the deceaseds arms and legs. The plans were duly made and executed and the deceased was killed. These events took place a week after the deceased's last aggression. The accused appealed against their conviction for murder on the ground that the trial judge had not put the defence of provocation to the jury. Their appeal was dismissed, the Court of Criminal Appeal finding that there was no sudden loss of self-control of the type required. Cumulative acts by the deceased may lead to the accuseds successful defence of provocation, although there were provocative acts in the past. There must be some act, which triggers the accused's response, however minor. This ingredient presents a difficulty for battered women who kill their abusive partners after years of abuse. The court is, however, prepared to accept that the temporary loss of self control may not be immediate upon a provocative act. In R v Ahluwalia [1992], the accused had entered an arranged marriage with her husband, who abused her over several years. One night she poured petrol over him while he

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was asleep and lit it, causing a fire that killed him. The court stated that it was necessary to show that she had suffered a temporary loss of self control although it was not necessary to show that the killing had been immediate upon a provocative act. Here, their Lordships said: We accept that the subjective element in the defence of provocation would not as a matter of law be negatived simply because of the delayed reaction in such cases, provided that there was at the time of the killing a sudden and temporary loss of self-control' caused by the alleged provocation. However, the longer the delay and the stronger the evidence of deliberation on the part of the defendant, the more likely it will be that the prosecution will negative provocation. The court also confirmed that battered-womens syndrome was a relevant characteristic that could be given to the reasonable person when considering how a reasonable person would have reacted. Battered-womens syndrome could also form the basis of a manslaughter verdict on the basis of diminished responsibility, and it was on this ground that the accuseds murder conviction was overturned and replaced with a manslaughter conviction. In R v Thornton [1992], A, who had a history of mental problems, married D in 1988, knowing him to be a heavy drinker and that he was jealous and possessive. She was the victim of domestic violence during the marriage. In 1989, D was

charged for violence against her. A month later, the abuse continued and A was heard to say that she would kill him. Two days after saying this, A and D quarreled and he called her a whore. A went to the kitchen and took a carving knife, which she sharpened. A then invited D to bed, but D refused and said he would kill her when she was asleep. She replied that she would kill him first and D dared her,

sarcastically. A killed him, stabbing him in the stomach. A called an ambulance and the police but told the police not to bother to try and save D, later telling them that D had threatened to kill her, and that she intended to frighten, but not kill him. The Court of Criminal Appeal dismissed her appeal. Submissions on her behalf that there was a long course of provocative conduct negating the "sudden impulse" requirements were unsuccessful. Circumstances which induce a desire for revenge are inconsistent with provocation. The conscious formulation of a desire for revenge means that a person has had time to think and to reflect. That would negative a sudden, temporary loss of self-control, which is of the essence of

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provocation. In Phillips v R [1969], the appellant and the deceased had been involved in a recently ended relationship. On the day of the killing, the deceased and the

appellant's mother were involved in a quarrel during which the appellant was present but not involved. The deceased spat at his mother and the appellant pulled a

machete from a bag his mother was carrying and used it to chop the deceased six times, killing her. His defence was provocation. He claimed to have acted on

sudden impulse and that he had spun around to punch her with his hand. The trial judge directed the jury to convict if they found that the appellant had not acted as a reasonable man. The Court of Appeal had allowed the appeal regarding the trial judge's direction, but had not disturbed the sentence. The Privy Council upheld the trial judge's directions and the subsequent conviction. The objective test for provocation is (i) would the reasonable man have lost his self-control; and (ii) would he then have retaliated as D did? The reasonable person, aka ''the reasonable man": The second essential ingredient in the defence of provocation is that the accused must have acted as any reasonable person would have done. The burden of proof is on the prosecution to disprove this. The jury must ask itself the question, would a reasonable person have responded in a manner similar to the accused? Who is the reasonable person? He/she was previously defined in English law as "the man on the Clapham omnibus". Cultural changes have re-defined him/her, so that he/she is not

homogeneous and might not be on the Castries or Basseterre omnibus, (or more likely, minibus). metamorphosed. The jury is to take into account the age and sex of the accused when considering the level of self-control to be expected. The leading case is DPP v Camplin [1978]. In that case, a 15 year old boy was raped by a middle-aged man who then taunted him. chapatti pan. The boy lost his self-control and killed the man with a In other words the reasonable man may be said to have

On appeal to the House of Lords, their Lordships described the

reasonable man as a person having the power of self-control to be expected of an ordinary person of the sex and age of the accused, but in other respects sharing such of the accused's characteristics as they think would affect the gravity of the provocation to him. As one judge said, one could not expect old heads on young shoulders.

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In R v Morhall [1996], the appellant was teased about his glue sniffing, and killed his taunter. In the House of Lords it was held that any characteristic, such as glue sniffing, that affected the gravity of the provocation to the accused could be taken into account (except drunkenness, unless the taunt related specifically to drunkenness). The jury should be directed to consider a hypothetical person, having the power of self-control to be expected of an ordinary person of the age and sex of the defendant, but in other respects sharing such of the defendant's characteristics as they think would affect the gravity of the provocation to him. Thus, the jury must distinguish between characteristics that affect the level of self-control and those that affect the gravity of the provocation. The House of Lords quashed the conviction for murder and substituted a conviction for manslaughter. The position is that although the defendant's characteristics can affect the gravity of the provocation, they cannot affect the degree of self-control expected, with the exception of age and sex. So, a tendency to violent rages or childish

tantrums is a defect of character rather than an excuse. A defendant must exhibit the level of self-control reasonable for his or her age and sex. If a defendant suffers from mental abnormality which means they have less self-control than other people they should be relying on diminished responsibility, rather than provocation. In summary, when the jury is being asked to consider provocation as a defence, they should ask themselves two questions: (i) How grave was the provocation? They should take into account any

characteristics of the defendant which affects the gravity of the provocation. (ii) How would a reasonable person of the defendant's age and sex respond to a provocation of that gravity? Here, no characteristic of the defendant, apart from age and sex, can affect the standard of self-control expected. (b) Diminished responsibility This is the second defence that, if accepted by the jury, would reduce a charge of murder to manslaughter. In Anguilla, s.187 of the Criminal Code sets out the

statutory provision on diminished responsibility. It provides that a person who kills another is not guilty of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or other inherent cause or induced by disease or injury) as substantially impaired his mental responsibility for his acts in killing.

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Diminished responsibility is a defence only to a charge of murder. It is not the same as insanity where the accused has a "defect of reason". It has been referred to as a type of "partial insanity". In R v Byrne [1960], the accused strangled a young woman and after her death, committed horrifying mutilations on her dead body. The facts of the killing were not in dispute, the accused making an admission in a long statement. His defence was diminished responsibility. Medical experts were called to give evidence on behalf of the accused. Their evidence was to the effect that the appellant was a sexual psychopath, and they provided examples of how such a mind works. Further, the doctors all argued that although the accused was not insane he could be described as partially insane. The judge directed the jury that the defence of

diminished responsibility was not available to the defendant. He was convicted and sentenced to life imprisonment, and appealed. The basis of the appeal was the failure of the judge to leave diminished responsibility to the jury, which would have reduced the charge to manslaughter. The Court of Criminal Appeal set out the requirements, which the accused must show, to succeed with the defence. These are: (a) that he was suffering from an abnormality of mind; and (b) that such abnormality of mind (i) arose from a condition of arrested or retarded development of mind or any inherent causes or was induced by disease or injury, and (ii) was such as substantially impaired his mental responsibility for his acts in doing or being a party to the killing". The Court of Criminal Appeal allowed the appeal but confirmed the sentence. Their Lordships said: The evidence of the revolting circumstances of the killing and the subsequent mutilations, as of the previous sexual history of the appellant, pointed, we think plainly, to the conclusion that the appellant was what would be described in ordinary language as on the border-line of insanity or partially insane. The key points to note about diminished responsibility are: It reduces a charge of murder to manslaughter. The accused must have suffered from an abnormality of the mind. The abnormality can arise from a birth defect, or may arise inherently or be induced by disease or injury. The abnormality must have impaired the accused person's mental responsibility.

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Abnormality of mind: It needs to be shown that the accused was suffering from an abnormality of mind. An interesting Privy Council decision from Barbados is Walton v R [1978]. The appellant was driving his girlfriend and her mother when he stopped the car suddenly. His girlfriend thought his actions were weird and flagged down another car. The appellant shot and killed a passenger in the car which

stopped. His defence was diminished responsibility. He relied on medical experts and a psychologist, but the jury, finding no history of mental impairment, convicted him. His appeal to the Court of Appeal of Barbados and to the Privy Council was unsuccessful. The Privy Council approved the approach taken in Byrne. Finally, we look at another well-known case on the topic. In R v Tandy [1989], the appellant was an alcoholic. After a round of vodka, she strangled her 11 year old daughter. She pleaded diminished responsibility. The judge directed the jury that if she voluntarily took her first drink, she could not claim that her abnormality of mind was due to the disease of alcoholism. She was convicted and appealed. Her

appeal was unsuccessful. The Court of Appeal found that the alcohol had not in itself produced an abnormality of mind. The defence of diminished responsibility is one about which the decision is to be made by the jury and not by doctors. The jury must be satisfied that the

accused's impulse substantially impaired his responsibility. The concept of abnormality of mind has been widely interpreted to include depression, morbid jealousy and the anguish suffered by someone watching a loved one in agonizing illness. The requirement that the abnormality of mind must be caused by a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury is a wide list. The abnormality must be the result of organic or physical causes and it is in practice essential to introduce medical evidence to support the defence. A defendant suffering from post-natal depression or pre-menstrual tension can rely on the defence. However, a temporary abnormality caused by the taking of alcohol or drugs cannot form the basis of a plea of diminished responsibility because an abnormality produced by drugs or alcohol cannot be regarded as an injury. (2) Involuntary manslaughter We will now examine those situations which give rise to the offence of involuntary manslaughter. These are homicides that are committed without malice aforethought, that is, without the mens rea for murder.

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There are three forms of involuntary manslaughter: (a) constructive manslaughter; (b) gross negligence manslaughter; and (c) reckless manslaughter. We shall look at each one in turn. (a) Constructive manslaughter Constructive manslaughter arises in cases where the accused lacks the mens rea of murder but kills the victim in the course of committing an unlawful and dangerous act. It is called constructive as the manslaughter is constructed from a less serious crime. There are four requirements of constructive manslaughter. These are (1) whether the act was done intentionally, (2) whether it was unlawful, (3) whether it was also dangerous, and (4) whether that unlawful and dangerous act caused the death. Let us examine some cases which illustrate the principle. In one old case, the accused threw "a good sized box" into the sea, hitting the deceased who was swimming, resulting in his death. The jury found the accused guilty of manslaughter. It was sufficient that the deceased died as a result of the accuseds dangerous act. A reasonable person would have realised the likelihood or risk of injury from such an act in a place where someone is likely to be. In R v Larkin [1943], A found his live-in companion D, at a party with another man with whom she was having a sexual relationship. A was upset when he saw D with the man and went away, returning with a razor. He inflicted a wound to D's throat, causing her death. In his defence, A stated that he intended only to frighten the other man and not to kill D who, he said, was groggy with drink, swayed against him and had her throat cut by accident. A was convicted of manslaughter and appealed. The Court of Criminal Appeal dismissed the appeal, upholding the

position of the learned trial judge that the act of the accused in approaching the deceased and another with a naked razor was dangerous, in that it resulted in D's death. A was therefore appropriately convicted. In R v Church [1965], the appellant, A, took the deceased, D to his van for a sexual encounter. He was unable to satisfy her and she reproached him, slapping his face. They fought and he knocked her out. Unable to revive her, having made efforts to do so, A threw D into a river where she died from drowning. The trial judge directed the jury that if D was alive when she was thrown into the river, whether or not A knew it, he would be guilty of manslaughter. A was convicted and appealed. His appeal was dismissed.

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In all of these cases, you will note that the three elements to which we referred earlier are present. An accused will not be guilty of manslaughter if, for example, death occurs from a lawful act. If D dies as a result of an accident in a dangerous sport such a motor racing or boxing, no liability would arise. However, if a parent or guardian drives fear into a child so that the child, in escaping, falls downstairs, breaks his neck and dies, that parent or guardian is liable for constructive manslaughter. What if death occurs as a result of a prank, jest or horseplay? The answer may be found in R v Lamb [1967]. There, A pointed a revolver at his friend. The revolver had five chambers, bullets being in two of the chambers, neither of which was opposite the barrel. A thought it was safe to pull the trigger and his friend D was treating the situation as a joke. They did not understand how the revolver worked. A pulled the trigger and D was shot. A was found guilty of manslaughter, the trial judge having directed the jury that the mere pointing of the gun and pulling the trigger, resulting in D's demise was a dangerous act, even if there was no intent to harm D, there being no need to consider whether there was an assault. A appealed. The Court of Appeal found that even though there was sufficient evidence of criminal negligence, the defects in the trial judge's direction warranted that the appeal be allowed. If the judge had directed the jury properly, the result would have been different. The answer to the question then, about whether one can be convicted for constructive manslaughter where death occurs as a result of a prank, jest or horseplay is, yes. Public policy, not to mention the law, (look again at the three elements) could not have it otherwise. (b) Gross negligence manslaughter The second form of involuntary manslaughter is gross negligence manslaughter. This area of the law has been the subject of much discussion, some of it having to do with whether the standard by which the accused is to be judged is an objective or subjective one. In addition to this, there has been debate in the House of Lords as to the use of certain epithets such as "gross", "wicked", complete" to describe the nature of the accused's recklessness or negligence. It appears that these issues have been settled to some extent by the decision of the House of Lords in R v Caldwell [1981].

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We had looked at the case of R v Adomako [1995] in discussing gross negligence and the mens rea. The question there was whether a reasonably

qualified anaesthetist would have realised what was wrong with the patient and have intervened to help him. In that case, a five stage test was set out for determining when an accused will be liable for manslaughter by gross negligence. These are: (1) The ordinary principles of the law of negligence apply in determining whether the defendant was in breach of a duty of care towards the victim. (2) Did the defendant's breach of a duty of care result in the victim's death.

(3) If (2), should the defendant's breach be characterised as gross negligence and therefore a crime? (4) The answer to (3) will depend on the defendant's breach of duty in the defendant's circumstances at the time the breach occurred. (5) The jury will consider whether or not the defendant's departure from the standard of care placed upon him, involved a risk to the victim with the result that it caused the victim's death. You will note the importation of some aspects of the law of negligence in the cases. The test for gross negligence manslaughter requires proof that there was a duty of care, breach of the duty, a death caused by the breach of duty, and that the breach of the duty was so gross as to justify a criminal conviction. See, for example, a case which we looked at previously in our discussion of the actus reus: R v Stone and Dobinson [1977]. In R v Seymour [1983], the appellant A had been living with the deceased D. They had a quarrel. Some time after, A who was driving a lorry, met D who was driving her car in an opposite direction. There was a slight collision and D got out of her car and approached the lorry. A drove his lorry violently towards D's car, moving it ten to twenty feet and forcing off one of its tires. D was crushed between the two vehicles and sustained severe injuries. She died a week later. A contended that he had only intended to push D's car out of the way. A was convicted of manslaughter and appealed. Their Lordships dismissed his appeal, holding that reckless driving involves (i) driving in such a manner as to create an obvious and serious risk of causing physical injury to some other person or of doing substantial damage to property, and (ii) in so doing, either not thinking about the possibility of such a risk, or recognizing the risk and nevertheless going on to take it.

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In Kong Cheuk Kwan v R [1985], the appellant was in command of one of two hydrofoils, which collided, in fine weather. Two passengers were killed. The

appellant was convicted of manslaughter. The Hong Kong Court of Appeal upheld his conviction and he appealed to the Privy Council. The Board held that a proper direction to the jury required, first, proof that the vehicle was in fact being driven in such a manner as to create an obvious and serious risk of causing physical injury to another and, second, that the defendant so drove either without having given any thought to the possibility of there being such a risk or having recognised that there was such a risk nevertheless took it. While a vast number of the cases in this area are motor manslaughter cases, the same criteria mentioned in Kong Cheuk Kwan are relevant generally. Cases have ranged from the master of a ship alleged to be sailing unsafely and so causing the ship to founder to a landlord not maintaining the proper repair of gas fires in his flats. (c) Reckless manslaughter This is recognised by academics as the third way in which involuntary manslaughter can be committed. Reckless manslaughter, in theory, is committed when the

defendant caused the death of the victim by performing some illegal or dangerous act, aware that there was a risk that the victim might die. The defendant will also be guilty of constructive manslaughter or gross negligence manslaughter. There is no case where reckless manslaughter has been directly referred to, so that, if the offence exists, it is of academic interest only. [Further reading: Activity 2.1 Identify in each of the following sets of facts (i) the element of the crime of murder which is raised and (ii) whether on these facts there is or is not criminal liability. (1). Donat and Eddie, both aged ten, are flying their kites, each boy determined that his kite should fly higher than the other's. All is going well until the string on Eddie's kite burst causing his kite to become entangled in a tree. He accuses Donat of tampering with the string earlier that morning. Donat denies it and the boys begin to fight. Eddie tries to escape, but Donat chases him, shouting "Watch me and you today. I must kill you". Eddie throws a large stone at Donat. The stone catches Donat in the head, wounding him seriously. He is admitted to hospital and dies a week later from an enormous swelling of his brain. Is Eddie liable for murder? (2) Cindy is eight weeks pregnant and confides in her friend Regina that she wants Smith & Hogan, Chapters 13 and 14 Herring, Chapter 10]

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to have an abortion. Regina decides to take Cindy to see Dr. Mort who she says performed the procedure for her when she was pregnant. Dr. Mort gives Cindy a milky substance, which she ingests, subsequently becoming very ill. She is hospitalized. When Cindy recovers, she is still pregnant and is now too scared to go ahead with the abortion. The baby is born prematurely with severe brain damage and dies six weeks after birth. The substance Cindy ingested is the cause of the brain damage. What if any is the criminal liability of (a) Cindy (b) Regina (c) Dr. Mort? (3) Lila is engaged to Arthur but they have not yet set a wedding date. Lila is jealous that Arthur is having an affair with Bianca. Lila goes to Bianca's home one night and throws a Molotov cocktail intending to frighten Bianca. The house is set alight. Bianca and two of her sisters escape, but her baby niece, Emily, who is sleeping upstairs could not be rescued, and dies from smoke inhalation. Is Lila guilty of Emily's murder? (4) On January 1, 2002, Sydney is coming from a New Year's Eve party. He sees his old enemy, Louis, who he approaches and an argument develops. Louis pulls his gun and shoots Sydney in his right leg. Sydney is hospitalized and undergoes surgery for removal of the bullet. He is later discharged. In July 2002, Sydney's leg begins to swell and he is re-admitted to hospital. The leg is amputated and Sydney becomes depressed, often wishing he was dead. In March 2003 Sydney commits suicide. Is Louis liable for Sydney's death?.

Activity 2.2 I. We started out with Smith and Hogan's reference to manslaughter as "a complex crime of not less than five varieties". The learned writers then set out the instances when a person is guilty of manslaughter. Q. What are the circumstances when a person is guilty of manslaughter? II. The five varieties of the law of manslaughter fall under two key elements, namely (a) voluntary and (b) involuntary manslaughter. Q Write the definition of (a) Voluntary manslaughter (b) Involuntary manslaughter III. Provocation is a good defence in reducing liability for murder to manslaughter. Q. Identify one case in which provocation is: (a) successfully pleaded, and (b) not successful, and the reasons for the decision IV "Diminished responsibility" is one of the limbs of voluntary manslaughter. Q. Define "diminished responsibility", and refer to one case in which it was successfully pleaded. V What are the three elements of constructive manslaughter? VI. What do you understand by "Reckless Manslaughter" or "Manslaughter by

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gross negligence? Refer to two cases to illustrate your answer.

Activity 2.3 1. Jack and Jill are husband and wife. They have a very close relationship. Jack leaves his licensed firearm on the dresser and goes outside, after telling Jill that he had cleaned the gun and taken out the bullets. Jill sees the gun and takes it up. Just then Jack enters the room and sees her with it. He says, "Hey sharp shooter, you look like an expert with that". Jill responds, "I am", pointing the gun at him. Jack then says, "Good thing there are no bullets in that". Jill pulls the trigger and, unfortunately, there is in fact a bullet in the inner chamber. Jack had not remembered it. He dies instantly. What is Jill's criminal liability, if any? 2. Popeye and his live-in girlfriend Olive 0yI live in a flat by the sea. Popeye's sister, Bo-Peep becomes ill and Popeye invites her to come and live with him, promising that he and Olive Oyl will take care of her. Bo-Peep sells her flat and comes to live with them, handing over all her accounts to them. Popeye and Olive Oyl are "party animals" and go to at least one soca party every weekend leaving Bo-Peep to fend for herself. Bo-Peep's condition deteriorates and she is unable to walk. One night there is a power cut and Popeye and Olive 0yI are determined to go to a fete. They light a kerosene lamp and place it in Bo-Peep's room, place the phone beside her and tell her that if she has any difficulties, she should call the neighbour. Bo-Peep dies in a fire, which seems to have started from the over turned lamp. Her burnt corpse is found on the ground, beside her bed. The police theorise that she might have toppled the lamp, starting the fire. What, if any, is the criminal liability of Popeye and Olive 0yI? 3. Dr Rumpel is a young surgeon who is widely regarded by his colleagues and patients as a shining star". One night while Dr. Rumpel is on duty, a young woman, Alice, is rushed to the hospital in a serious condition after a motor vehicle accident. Owing to Alice's serious condition, Dr Rumpel and his team quickly perform surgery on her, trying desperately to save her life. In their zeal, they do not notice that Alice is wearing an anklet which bears a note that she is allergic to certain medications and that she is an epileptic. Alice recovers well from surgery, but four days later she develops complications after an attack of epilepsy. She dies later that night. It is discovered that Alice is allergic to one of the medicines prescribed by Dr. Rumpel, and that it had triggered the epilepsy. Her family wishes to sue Dr. Rumpel and the hospital for damages. What would your advice be concerning the criminal charge of reckless manslaughter? 4. Ulysses, a mentally challenged young man of 22, has always been teased by members of the community in which he lives. Ever since childhood, he has been the butt of everyone's jokes. Ulysses is at a bar drinking with his friends when, Cyclops, one of his main taunts, walks up to him and starts to call him names, including "Mama's Boy" and "Freak" which two Ulysses resents. Others in the bar tell Cyclops to desist, but he persists, whereupon Ulysses reaches for an ice pick and stabs Cyclops who dies a few days later.

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What arguments can be advanced in defending Ulysses in respect of (a) selfinduced intoxication and (b) diminished responsibility? 5. A, a 46 year old cook marries D, a 20 year old dancer. D goes on a short vacation in Cancun, Mexico, along with A. While there she meets C, a masseur at the hotel where she and A are guests. A and D develop a friendship with C, and invite him to their home. A few months later C accepts the invitation and visits them. D soon becomes very close to C and they engage in sexual intercourse regularly when A is away. D taunts A about how old fashioned he is and tells him she intends to return to Mexico with C. One morning they have a violent quarrel and C moves out of their house to a nearby guest house. That night D again taunts A and he goes away for the night. Next morning he returns and stabs D to death. Can A succeed with a defence of provocation?

Activity 2.4 8. Dick and his friend Ronald are coming home from a visit to one of their company's offices in the country. They are in Dick's car but Ronald is driving. They stop at a bar and have a few drinks. Ronald is known to make off-colour jokes, especially when he is drunk. He says to Dick, Man, I hear yuh wife soon leave yuh for the young boy next door. Dick, who is indeed having a problem with his wife, arising from his obsessive jealousy, says to Ronald, Yuh better leave my wife out of this!' Ronald continues to goad Dick who hits him with a beer bottle, cutting his head. Dick then runs to his car and gets a cutlass with which he chops Ronald, severing an arm. Ronald dies a few days later in hospital. Dick is arrested and says to the police, I just lost it when he mentioned my wife. I didn't know what happened. Ronald was my best friend. With reference to decided cases, discuss the defences available to Dick. 30 minutes [2005, Paper 2] 25 marks

Activity 2.5 9. Distinguish between voluntary manslaughter and involuntary manslaughter. Refer to decided cases to illustrate your answer. 30 minutes [2007, Paper 2] 25 marks Feedback: You are expected to have a clear understanding of the difference between voluntary and involuntary manslaughter, and to be familiar with the leading cases.

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Activity 2.6 8. With reference to at least THREE decided cases, discuss the circumstances when provocation is available as a defence. 30 minutes [2009, Paper 2] 25 marks Feedback:

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ASSAULT and BATTERY We have examined those offences against the person, (i) murder, and (ii) manslaughter, which result in death. In this part of the lecture, we will be examining offences against the person, which do not result in death, but which cause physical injury or an apprehension of physical injury. Your syllabus is restricted to the two offences of assault and wounding. There are several different aspects to the two offences. (iii) ASSAULT (i) The actus reus of assault The word 'assault' is used in two senses: first, as a generic name for the two common law offences of assault and battery; and second, as the specific offence of assault, often called 'common assault'. They are usually taken together because they overlap. The essence of an assault in its narrow sense, is the intentional or reckless causing of a victim to fear some immediate use of force against him. An assault is any act by which a person intentionally or recklessly causes another to apprehend immediate and unlawful personal violence. application of such force to the victim. What is an assault? Can words constitute an assault? Must there be a particular degree of violence? These are among the questions which readily come to mind when one is seeking to define the actus reus of assault. The definition of "assault" itself points us in the direction we should go. Two elements of the definition of assault are significant, namely: (i) The accused must have acted intentionally or recklessly, and (ii) The complainant must apprehend immediate and unlawful personal violence. The actus reus of an assault is the creation of an expectation of immediate unlawful violence in the mind of the victim. So, an assault may be committed by shaking a fist or brandishing a knife at someone. If A sends a message to B to say that he has a gun which he is going to use to shoot her, A would not have assaulted B. B would be advised though, to report A's threat to the police. It would be an assault, however, if A, points the gun at B and says "shut up or Ill blow your brains out!" The same words by A, without the pointed gun, would that be an assault? We will come to that shortly. On Bs part she must apprehend the infliction of immediate Battery is the direct

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and unlawful violence to her person. For her, it must be more than her being fearful of B because of a past event. The following cases illustrate the point: (a) Where the accused showed the victim a pistol in a drawer and declared that he would hold her hostage, it was held that his action constituted an assault. (b) In another case where the accused looked through the victim's window while she was in her nightclothes it was found that he intended to frighten her and had succeeded in doing so and he was therefore guilty of an assault. (ii) The mens rea of assault In the commission of an assault, the defendant engages in an act against the complainant intentionally or recklessly. Provided we can identify the accused's

intention and recklessness, coupled with the actus reus, he is guilty of the offence. In this context, recklessness must be of the R v Cunningham variety, that is, subjective. (You are already familiar with this case, but should look at it again: gas meter from the wall case. Revise the objective standard in R v Caldwell, (10

persons nearly killed in hotel fire case) and be reminded that objective recklessness does not normally apply to offences against the person. The following case supports the Cunningham standard of recklessness: In R v Venna [1975], the police were called to restrain the appellant and others who were creating a disturbance in the street. During a scuffle, as the police sought to arrest him, the appellant kicked out, resulting in the fracture of a hand of one of the officers. The appellant was convicted for assault and appealed. His appeal was dismissed, the Court of Appeal, Criminal Division, approving the direction of the judge at first instance who had found that the appellant had been reckless, as defined in Cunningham. Let us now look at whether or not words alone can constitute an assault. Relying upon an old authority where the trial judge directed the jury that "no words or singing are equivalent to an assault", it has long been the view that mere words do not amount to an assault. The authority for this view is Tuberville v Savage [1669]. In this old case, D laid his hand on his sword and said, "If it were not Assize time I would not take such language". This was held not to be an assault. The words in that case belied the seriousness of the threat. Compare R v Light [1857] where the accused was held to be guilty of an assault for raising a sword over his wife's head and saying, "were it not for the bloody policeman outside, I would split your head

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open". Note that here, the accused's words were accompanied by a menacing act. The view among some scholars is that words can constitute an assault, but the Courts are reluctant to agree, and take the traditional view that there must be some accompanying menacing act, as in one case where the appellant entered a bank and, having a coat draped over his arm, said to the teller, "I've got a gun, give me all your money or I'll shoot". In R v Ireland [1998], a defendant was convicted of assault when he telephoned his victims a number of times and then remained silent. The assault in this case was said to have arisen because the victims would not have known what the accused was going to do next, and may have feared that he was about to come around to their house and attack them. If silence alone can be an assault, then so can words, letters, e-mails, texts and facial expressions. (iv) BATTERY The offence of battery involves the intentional or reckless use of force against another person. The mens rea of battery Like assault, battery is a crime of basic intent, requiring either intention or recklessness. This was stated in a case which we looked at above, R v Venna [1975], where the Court of Appeal said: . . . the element of mens rea in the offence of battery is satisfied by proof that the defendant either intentionally or recklessly applied force to the person of another. The accused is not guilty of the offence if he does not foresee that he might occasion actual bodily harm. In R v Spratt [1991], the appellant fired an air pistol from his flat, hitting a young girl who was playing in the square below. He claimed to have been aiming at a rubbish chute and that he did not know anyone was there. His appeal against a conviction for assault occasioning actual bodily harm was successful, the Court holding that he would be guilty only if he foresaw the result, which occurred. Intoxication is no defence to a charge of battery. The cases have established that in crimes of specific intent, such as murder, evidence of self-induced intoxication negating mens rea is a defence. It would not be a defence to a charge of battery, which is a crime of basic intent. We will look at these issues later when considering defences.

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The actus reus of battery The actus reus of a battery is the application of force, eg, a slap or blow. There is no need to show that the victim suffered any injury. Merely touching the other person would be enough, if done without the consent, express or implied, of the victim. It is a battery to allow the wheel of a car accidentally driven onto the victim's foot to remain there. If a man punches a woman who is holding her baby, he commits a battery against the child by causing it to hit the floor. The offence of battery does not include everyday touching. Bumping into someone in a crowded room or tapping someone on the shoulder to point out that they have dropped something is not a battery. There is a number of other specific non-fatal offences against the person which you should be familiar with. In Anguilla all these woundings and assaults are dealt with under the Criminal Code. There are no common law crimes left. Now that you have understood the treatment of assaults at common law, you are ready to deal with the statutory offences. Bear the common law principles in mind when you are dealing with the statutory assault offences. They include wounding with intent, causing grievous bodily harm with intent, malicious wounding, inflicting grievous bodily harm, wounding, assault occasioning actual bodily harm, and common assault. (v) WOUNDING WITH INTENT Any person who unlawfully and maliciously, by any means whatsoever, wounds any person with intent to do so or with intent to resist or prevent the lawful arrest of any person, commits an offence and is liable on conviction to imprisonment for life7. This is considered one of the most serious non-fatal assaults. The essential ingredient in this offence is that the result of the harm done is a wound. A wound means a breach in the continuity of the skin resulting in bleeding. It is not enough that there be a rupturing of blood vessels internally. Note the specific intent that is required. The jury must be satisfied that the accused inflicted the wound with intent to do so, or to resist or prevent the lawful arrest of any person. The burden on the prosecution is to show (i) that it was the defendants purpose to cause grievous bodily harm, or, if that was not his purpose, (ii) that he knew that grievous bodily harm was a virtually certain consequence of his act. Recklessness will not suffice. With such an intent, if the victim dies, the charge
7

Section 203 of the Criminal Code of Anguilla.

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would be murder.

If he survives, this is the appropriate charge, if there was

bleeding. If there was no bleeding, the following would be the appropriate charge. (vi) CAUSING GRIEVOUS BODILY HARM WITH INTENT Any person who unlawfully and maliciously, by any means whatsoever, causes any grievous bodily harm to any person with intent to do so or with intent to resist or to prevent the lawful arrest of any person, commits an offence and is liable on conviction to imprisonment for life8. This is serious harm not amounting to a wound. Grievous bodily harm means a serious injury short of death. An example might be a broken limb. The specific intent spelled out by the statute, as with

wounding with intent, is what makes this such a serious offence. (vii) MALICIOUS WOUNDING Any person who unlawfully and maliciously wounds any other person, either with or without any weapon or instrument, commits an offence and is liable on conviction to imprisonment for 5 years9. Here, the offence requires an element of mens rea described by the word malicious. Malice in law does not require any ill will or evil intent. It is sufficient that the accused should have foreseen that his act would cause some physical harm to some person, albeit of a minor character. It is quite unnecessary that the accused should have intended or have foreseen that his unlawful act might cause serious physical harm. It is always open to the jury to return a verdict of guilty of the lesser offence of inflicting grievous bodily harm. (viii) INFLICTING GRIEVOUS BODILY HARM Any person who unlawfully and maliciously inflicts any grievous bodily harm upon any other person, either with or without any weapon or instrument, commits an offence and is liable on conviction to imprisonment for 5 years10. Here there is no specific intent, but serious injury has occurred as a result of a wrongful assault. The maximum penalty is 5 years imprisonment. The mental element or mens rea would include either the intention or recklessness whether harm was caused. This is an aggravated form of common assault and battery, but which is rendered more serious by the consequences of actual bodily harm resulting.

8 9 10

Section 203 ibidem. Section 204 ibidem. Section 204 ibidem.

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(ix) WOUNDING Any person who unlawfully wounds another person commits an offence and is liable on conviction to imprisonment for 2 years11. Note that this is a crime of basic intent and no specific intent is required. (x) ASSAULT OCCASIONING ACTUAL BODILY HARM Any person who commits an assault occasioning actual bodily harm commits an offence and is liable on conviction to imprisonment for 5 years12. The mens rea of assault occasioning or causing actual bodily harm is similar to that of assault and battery (see above): R v Savage, the glass of beer case, DPP v Parmenter, injuring a baby through rough handling case. The accused is not guilty of the offence if he does not foresee that he might occasion actual bodily harm. In R v Spratt [1991], the appellant fired an air pistol from his flat, hitting a young girl who was playing in the square below. He claimed to have been aiming at a rubbish chute and that he did not know anyone was there. His appeal against a conviction for assault occasioning actual bodily harm was successful, the Court holding that he would be guilty only if he foresaw the result, which occurred. In R v Roberts [1972], the accused gave a lift in his car, late at night, to a girl. He began to make unwanted advances of a sexual nature to her which alarmed her. She feared that he intended to rape her and as the car was moving, she opened the door and jumped out and injured herself. Roberts was convicted of causing her actual bodily harm because the victims conduct was a reasonable result of his actions, although he protested that he had not foreseen that the girl would do as she did. In R v Martin (1881), the defendant put out the lights in a theatre shortly before the end of a performance. There was a panic and persons were injured in attempting to escape. He was convicted of causing grievous bodily harm. (xi) COMMON ASSAULT Any person who unlawfully assaults another commits an offence and is liable to imprisonment for 1 year or to a fine of $1,000 or to both13.

11 12 13

Section 205 ibidem. Section 222 ibidem. Section 221 ibidem.

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In Anguilla, the common law offences of assault and battery no longer exist. There is no offence of battery in the Criminal Code. It would be necessary to charge an offender with the offence of an assault occasioning actual bodily harm. Such an offence is triable in the Magistrates Court as a summary offence. [Further reading: Smith & Hogan, Chapter 15 Herring, Chapter 7]

Activity 2.7 The following statements are either true or false. Which is it, and give your reasons. 1. Bill and Bob have not spoken to each other for years. Bill sees Bob coming up a narrow path and stops, blocking Bob. Bill points his machete menacingly at Bob and says, "I have you now". Bill has committed an assault against Bob. 2. Sara is a sore loser after a game of tennis. Upset at her loss, she throws her racket in the direction of a group of girls with whom she had had an argument earlier, hitting Louise in the right eye. Louise suffers a ruptured blood vessel and her eye is swollen. Sara's action demonstrates both the mens rea and the actus reus of an assault. 3. Rufus and Logan are at loggerheads, following a domino game in which Logan accuses Rufus of cheating. Rufus shows Logan a knife which he has in his pouch and says to him, "You see this?" Rufus is guilty of an assault. 4. Dick sees Robert coming upstairs and triggers a contraption, which he had set up, causing Robert to stumble and hit his head. Dick is guilty of a battery against Robert. 5. Chris and Emi are playing a game of marbles. Chris becomes upset with Emi and hits him with a stone cutting him on the forehead. This is an example of wounding with intent. 6. Ella raises a false alarm as a result of which several persons in her apartment building rush to safety. Some of them are injured in the process of escaping from the building. Ella is guilty of causing grievous bodily harm to the injured persons.

Activity 2.8 From this activity, your knowledge of, and familiarity with, the relevant statutory provisions of the law in your jurisdiction will be vastly improved. Developing a Scrap Book Look at the Look at the Criminal Code of Anguilla and identify the sections which are equivalent or similar to the Offences Against the Persons Act, 1861 (U.K). Match your own statutory provisions with the following provisions from the UK Act: Sections: 18,20,38,47 You will note that there have been some amendments to the U.K. statute of 1861 by subsequent legislation.

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When you have finished this exercise, prepare a quick reference and place it in your scrapbook for quick revision.

Activity 2.9 10. Examine each of the fact situations below and answer the questions which follow. (a) Alex puts his hand on his licensed firearm and says to his wife, Lucy, during a quarrel, If it were not for my mother, I would blow your head off. Advise Alex on his criminal liability, if any, citing cases in support of your answer. [8 marks] (b) Following the quarrel, Lucy threatens to leave Alex and never return. She is coming down the stairs with a small suitcase when Alex blocks her path, apologising for his behaviour and declaring his love for her. Lucy pushes him away and he falls and breaks his arm. Advise Lucy on her criminal liability, if any, citing cases in support of your answer. [8 marks] (c) Lucy's mother-in-law, Camilla, is upset about Alex's injuries. She attacks Lucy, bites her on her arm and scratches her neck. Advise Camilla on her criminal liability, if any, citing cases in support of your answer. [9 marks] 30 minutes [2006, Paper 2] 25 marks Feedback:

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3. SEXUAL OFFENCES We will examine the law relating to two sexual offences, namely (i) rape and (ii) incest. These are not the only sexual offences. There are others, such as indecent assault, prostitution, sale of pornography, and sexual offences concerning children. Rape and incest are the two required for study by your syllabus. (i) RAPE Rape is committed when a man has sexual intercourse with a woman who at the time of intercourse did not consent to it, and at that time he knows that she does not consent to the intercourse or he is reckless as to whether she consents to it: section 161 of the Criminal Code of Anguilla14. Consent is the vital issue. If the jury has to consider whether the man

believed that the woman was consenting, the presence or absence of reasonable ground for such belief is a matter for the jury. A woman does not consent if her acquiescence is obtained by threat of force, or by means of threats or intimidation of any kind, or by fear of bodily harm, or by means of false representations as to the nature of the act, or in the case of a married woman, by impersonating her husband. Actus reus of rape The actus reus of rape has undergone an evolution in its definition. The common law definition of rape was "unlawful sexual intercourse with a woman without her consent, whether by force, fear or fraud." We will see from the cases and statutory provisions that the definition has widened to include anal intercourse, and, in some countries, but not Anguilla, includes rape of a male. The two important elements of the actus reus of rape are penetration and the lack of consent. (i) Penetration: One of the essential elements of the actus reus of rape is penetration of the female genitalia, however slight. The act of sexual intercourse is legally considered complete from the moment of penetration. At common law, any penetration was enough. It was not necessary to prove that the hymen was ruptured or that the vagina in its proper sense was penetrated. The question in Anguilla is settled by a statutory provision. The definition of sexual intercourse is found at section 140 of the Criminal Code, which provides that it is not necessary to prove the completion of the intercourse by the emission of seed, but that any degree of penetration is sufficient.
14

RSA c C140.

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The section also provides that sexual intercourse in Anguilla includes any degree of penetration of the vagina, mouth or anus of any person or the stimulation of the vulva or the penis or the anus of any person, by or with any part of the body of another person, or by any object used by another person, except where carried out for a medical purpose. [If a man is raped, the proper charge to be brought would be one of indecent assault]. Note that though s.140 refers to any person, s.161 states that rape can only be committed on a woman. Note also that, in Anguilla, rape can occur when any of the vagina, anus or mouth is assaulted. In Kaitamaki v The Queen [1958], K penetrated V believing that she consented. During intercourse he discovered that she did not consent but continued the intercourse nonetheless. He was convicted of rape and appealed, arguing that he did not know she was not consenting when intercourse began, he only realised it half way through. His appeal was dismissed, the Privy Council dismissing the point argued for the appellant as to the meaning of the word "complete.' intercourse is a continuing act which only ends with withdrawal. Sexual

A defendant

commits rape if having penetrated with consent, or believing he has consent, he declines to withdraw on consent being revoked or on realising that the victim does not consent. (ii) Lack of consent: The definition of rape is sexual intercourse with a woman who at the time of intercourse did not consent to it, and at that time he knows that she does not consent to the intercourse or he is reckless as to whether she consents to it. After the requirement for penetration, the second important element in rape is the lack of consent. It is consent or the lack of it that is the most frequent issue in dispute in a rape case. Consent is also important in relation to the mens rea of the crime, as we shall see. We have seen that the common law definition of rape contains a reference to ''force, fear or fraud." These concepts are still considered when examining what can vitiate or negative the victim's consent. submission, there is no consent. In R v Olugboja [1982], one accused, L, raped the first victim, V, then took her companion, K, into an adjoining room, intending to rape her. L's companion, O, told the second victim, K, that he was going to have intercourse with her and told her to remove her trousers, which she did out of fear. She did not struggle or resist O when he had intercourse with her. O's appeal against conviction was dismissed by Where any of these factors leads to

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the Court of Appeal. The court explained that in cases of apparent consent due to threats or fear, the jury should be directed to concentrate on the state of mind of the victim immediately before the act of sexual intercourse, having regard to all the relevant circumstances and in particular the events leading up to the act and her reaction to them showing the impact on her mind. Apparent acquiescence after penetration does not necessarily involve consent which must have occurred before the act takes place. Once consent is given it is not vitiated by the fact that there was a suppression of the truth. In R v Clarence [1888], C had sexual intercourse with his wife while he was suffering from gonorrhea, as a result of which she contracted the disease. It was found that had she been aware, she would not have consented. C's appeal against conviction for assault occasioning and for unlawfully and maliciously inflicting grievous bodily harm was allowed. The court found that there had been no assault on the wife, because she consented to the act of intercourse, and the communication of a disease was not an assault. Clarence was not strictly a rape case, but it is relevant to the issue of consent to sexual intercourse. Impersonation of a spouse in circumstances where the victim willingly has sexual intercourse with an impersonator will give rise to a conviction for rape. There is no consent in such circumstances, consistent with the concept that fraud vitiates consent. This applies not only to married couples, but to unmarried ones as well. In R v Elbekkay [1995], E had sexual intercourse with V, who was sleepy and intoxicated, she believing that he was her boyfriend. E was convicted of rape upon Vs

complaint. He appealed. In dismissing E's appeal, the Court of Appeal agreed with the position taken by the trial judge that the law must reflect "modern attitudes and values, where possible" thereby making no distinction between a wife and her husband, and a girlfriend or fiance with her regular partner. The vital point about rape is that it involves the absence of consent. That absence is crucial whether the woman believes that the man she is having sexual intercourse with is her husband or another. The lack of consent must be to the act of sexual intercourse. If a man tells a prostitute that he is going to pay her for sexual intercourse, but afterwards he runs off without paying he does not commit rape. It will not be rape because she had not been deceived as to the nature of the act of sexual intercourse, only what would

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happen afterwards, whether she would be paid. The mens rea of rape The mens rea of rape is the lack of an honest belief that the victim consents to sexual intercourse. In trials for rape, the defence is often that the woman gave her consent or that by her conduct she led the accused on, or that even her past indicates that she must have, or would have, consented to sexual intercourse with this person, on this occasion. In DPP v Morgan [1975], Morgan a member of the Royal Air Force, invited three men of junior rank to go with him to his home where all of them would have sexual intercourse with his wife. At first, the young men were reluctant but M

persuaded them, telling them of his wife's sexual aberrations, including that if she resisted, it was merely a pretence, as it meant that she was really excited. provided them with condoms. Later he denied the conversation. W's account was that she was asleep in a room she shared with one of her children. She was dragged out of the room by M and the other men into another room where the men took turns in having sexual intercourse with her, the last to do so being M. She said she screamed, struggled, and called out to M to tell the men to stop. At the trial the three men gave evidence that from W's response she was evidently consenting. In effect, they were pleading an honest mistake. M gave evidence that W had consented prior to the intercourse with the men, and that her only complaint was that one of them was not wearing a condom. The three younger men were convicted of rape, while M was convicted of aiding and abetting rape. At the time of the trial a husband could not be convicted in the UK of raping his wife, though that would change subsequently. The men M

appealed to both the Court of Appeal and to the House of Lords. Held, the crime of rape consisted in having sexual intercourse with a woman with intent to do so without her consent or with indifference as to whether or not she consented. If the accused honestly believed that the woman had consented then he could not be found guilty of rape. On the facts of the case before them, the House thought that no reasonable jury could have believed the accused's story and could not have failed to convict them. Accordingly, their convictions were affirmed. In R v Satnam, R v Kewal [1983], the victim was a 13-year girl, although she looked older, who worked part-time in a shop where Satnam, aged 31, also worked.

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She had met Kewal once before. She agreed to drive around for a time in Kewal's car. There followed two incidents when both appellants had sexual intercourse with her or attempted to do so. In each case one got into the back of the car with the girl and had intercourse while the other drove. In between the incidents they stopped, once at a public house and once at an off-licence to buy some Bacardi. On neither occasion did the girl try to run away or make any complaint. When questioned, she said quite calmly, They had intercourse with me, and went on to say that she had tried to stop them but they were too strong. Both said that she seemed to want intercourse. Both accused were convicted of rape, being reckless as to consent, and sentenced to five years imprisonment. The Court of Appeal found that the judge's directions to the jury on consent had not been correct. It is the duty of the judge to direct the jury that before they could convict of rape the prosecution has to prove that the defendant knew the woman did not want to have sexual intercourse, or was reckless as to whether she wanted to or not. If they were sure he knew she did not want to they should find him guilty of rape knowing there to be no consent. If they were not sure about that, then they would find him not guilty of such rape and should go on to consider reckless rape. If they thought he might genuinely have believed that she did want to, even though he was mistaken in his belief, they would find him not guilty. In considering whether his belief was genuine, they should take into account all the relevant circumstances and ask themselves whether, in the light of those circumstances, he had reasonable grounds for such a belief. If they came to the conclusion that he could not have cared less whether she wanted to or not, but pressed on regardless, then he would have been reckless and could not have believed that she wanted to, and they would find him guilty of reckless rape. Their appeals were allowed, and their convictions for rape quashed. The decision in Morgan was approved in the Guyanese case of State v Persaud [1975]. The facts are as follows:- V, then aged 15, was violently sexually assaulted by A on Christmas Day on a beach on the Essequibo coast. V's account was that during her ordeal she scratched and bit A, evidence of such being found by a doctor who examined A who was taken to the doctor by the police, as part of their investigations. V claimed that she managed to escape when the voices of men on the beach indicated that persons were approaching her and A. A claimed that V had promised to have sexual intercourse with him and that he had run off when he heard the voices. A was convicted of rape and appealed. At the trial, the judge had directed the jury that because of As admission of sexual intercourse with V, there

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was no need for the corroboration of her story. The Court of Appeal allowed A's appeal on the basis that A's honest belief in V's consent was the applicable standard. Their lordships referred to the then recently concluded decision in

Morgan, approving Lord Hailsham's dictum that Mens rea means 'guilty or criminal mind', and if the mental element in rape was not knowledge but intent, then to insist that a belief must be reasonable to excuse was to insist that either the accused was to be found guilty of intending to do that which in truth he did not intend to do, or that his state of mind, through innocent of evil intent, could convict him if it were honest but not rational. The test is a subjective one. If the accused holds a bona fide belief that the victim was consenting, based on her original consent, then he is to be acquitted. The appeal was allowed. Marital rape: Marital rape is a controversial subject. At common law it was presumed that by marriage, a wife had consented at all times to sexual intercourse with her husband. A husband was considered incapable in normal circumstances of committing the offence of raping his wife. following circumstances, ie, where there was: (i) a non-cohabitation order by the Court, (ii) the granting of a Decree Nisi, (iii) a non-molestation order or undertaking by a husband (for example, in domestic violence proceedings); or (iv) a formal separation agreement. In R v R [1992]. the parties were married in 1984. They separated for a short period in 1987, later resuming cohabitation. They separated in 1989 when the wife left the matrimonial home to live with her parents. They were contemplating divorce, and each made this position known to the other, but they had not initiated proceedings. Less than two months after W had removed to her parents' home, H forced his way into her place of abode and attempted to have sexual intercourse with her, squeezing her neck with both hands in the process. H admitted his actions to the police. H and W later divorced. At H's trial for rape, the trial judge ruled that whatever implicit general consent for sexual intercourse existed during the marriage was extinguished when W moved out of the matrimonial home. His appeal against Marital rape could occur only in the

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conviction was dismissed.

The question was put to the House of Lords, for

certification, "Is a husband criminally liable for raping his wife?" The House of Lords answered the question in the affirmative taking the law further than what had been the previous position in England. Lord Keith indicated that the status of women had changed, marriage in these times being "regarded as a partnership of equals, and no longer one in which the wife must be the subservient chattel of the husband." He went on to say that the earlier proposition that by marriage a wife gives her irrevocable consent to sexual intercourse with her husband under all circumstances and irrespective of the state of her health or how she happens to be feeling at the time is quite unacceptable in modern times. In Anguilla, as in the rest of the Caribbean, R v R is not law. In Anguilla, the common law exceptions have now been codified and it is an offence in certain circumstances for a husband to have sexual intercourse with his wife without her consent, but the offence falls short of marital rape. The offence is known as Sexual Assault by Husband. It was created by s.165 of the Criminal Code which provides that a husband commits the offence of sexual assault if he has sexual intercourse with his wife without her consent by force or fear where there is in existence in relation to them: (a) a decree nisi of divorce; (b) a decree of judicial separation; (c) a separation agreement; or (d) any other order of a court that orders him not to molest his wife or to have sexual intercourse with her. In Anguilla, the maximum penalty for sexual assault by a husband is seven years imprisonment, while that for rape is life imprisonment. (ii) INCEST At common law, the offence of incest was a crime prohibiting sexual intercourse between persons who are within certain degrees of family relationships, such as brother, sister, mother and father. These persons, within the "prohibited degrees of consanguinity" as referred to under the Marriage Act15, cannot in law marry each other.

15

Marriage Act RSA c M40, section 23.

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The actus reus of incest The common law offence of incest in Anguilla has been replaced by a statutory offence. The essential ingredients of the offence of incest in Anguilla are to be found at s.163 of the Criminal Code. This provides that any person, knowing that another person is by blood relationship his parent, child, brother, sister, grandparent, grandchild, uncle, niece, aunt, or nephew, has unlawful sexual intercourse with that other person, whether with or without the consent of that other person, is guilty of the offence of incest and is liable to imprisonment, if he is an adult who commits the offence with a minor, for life, and if he is an adult who commits the offence with another adult, for 10 years, and if he is a minor who commits the offence with another minor, for a term of 7 years. Note that the essential change in the law is the requirement for a blood relationship. The section expressly provides that the prohibited relationship applies whether or not it is traced through lawful wedlock, and brother includes half-brother and sister includes half-sister. So that an offence of incest under the Criminal Code may be committed whether or not the relationship is derived from marriage. The essential element of a blood relationship must exist. There is no longer any

correlation between the offence of incest and a relationship that is prohibited by the Marriage Act. A man may not be able to marry his daughter-in-law or his step daughter, but he does not commit incest with either of them. Sexual intercourse with a dependent child: What about the case of the stepfather who has sexual intercourse with his partner's daughter who is under the age of consent? Since the child is not his by a blood relationship, does that mean that he escapes all sanction under the law of incest? The answer is to be found at section 145 of the Criminal Code of Anguilla. This section creates an offence of having sexual intercourse with a dependent child. A dependent child is defined by the section as a minor who is not related by blood to the adult but who is (a) is the adopted child, stepchild, foster child, or ward of the adult; or (b) has been treated by the adult as a child of the family; or (c) is being maintained, either wholly or partly, by the adult; or (d) is in the actual possession, custody, care or charge of the adult; or (e) in relation to whom the adult holds a position of trust. Note that dependency as defined is an essential part of the actus reus of the offence. So that, sexual intercourse, with or without consent, by an adult with a dependent child is an offence under the Criminal Code even though it is not strictly

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the offence of incest. The penalty is a maximum of 7 years' imprisonment. The mens rea of incest Knowledge of the relationship is essential. The offence is not committed if one has sexual relations with a person one does not know is a member of a prohibited relationship. The mens rea must be proved. D will have a defence if he believes that his wife's daughter P is the child of another person. [Further reading: Smith & Hogan, Chapter 16 Herring, Chapter 8]

Activity 3.1 Examine the following fact situations, identifying the issues and refer to a case or statutory provision in support of your conclusion: 1. A agrees to go to a secluded beach with X, a popular cricketer. She does not intend to have sexual intercourse with him, as she has a boyfriend and knows X to be a philanderer. While at the beach, X overpowers A, and has sexual intercourse with her, despite her protests and struggles. X says that by going to the beach with him, he believed A meant to have sex with him and he thought her protests and struggles were fake. X is guilty of rape. Yes [ ] No [ ] Issues: Cases and statutory provisions: 2. A agrees to have sexual intercourse with X. Unable to have an erection, X tells A not to worry, as he will use a sex toy. A objects and tries to escape, but X restrains her telling her to shut-up as she had already agreed. He engages in anal intercourse using the toy. Has X committed an offence? Yes [ ] No [ ] Issues: Cases and statutory provisions: 3. E and F live together in a common law relationship. E has a daughter, aged 16 and F has a son, K, aged 17. F and K engage in sexual intercourse whenever their parents are not at home. Is this a case of incest? Yes [ ] No [ ] Issues: Cases and statutory provisions: 4. Barbie, aged 29, marries Ken, a widower, aged 65. Ken has a son, Randy, aged 25, with whom Barbie engages in regular sexual intercourse. Barbie and Randy are guilty of incest. Yes [ ] No [ ] Issues: Cases and statutory provisions: 5. Chaunty has recently separated from his wife Perty. One rainy evening he

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passes by the matrimonial home to collect his personal belongings. Perty is making soup and offers Chaunty some of it. He accepts and, after eating, tells her that he has been longing for her. He pushes her against the sofa and has sexual intercourse with her. Is Chaunty guilty of rape? Yes [ ] No [ ] Issues: Cases and statutory provisions: 6. Billie Jean is asleep naked in her upstairs bedroom on a hot July night. She leaves her window open. Michael climbs up on a ladder, peeps in and sees her there. He enters the bedroom. Billie Jean, whose boyfriend, Paul, often climbs up to her bedroom to have sex with her, awakens to find Michael in the room and, believing him to be Paul, she beckons him over and has sex with, him. Is Michael guilty of rape? Yes [ ] No [ ] Issues: Cases and statutory provisions:

Activity 3.2 10. After having drinks, Minnette and Colin begin having sexual intercourse at Minnette's home. Minnette becomes afraid that her boyfriend, Adam, will arrive shortly and she changes her mind. She cries out to Colin to stop but he mistakes her cries as ecstasy and continues. Discuss Colin's liability, including any possible defences. 30 minutes [2004, Paper 2] 25 marks Feedback:

Activity 3.3 9.(a) The law of incest should extend to step-children as well; the essence of our family structure in the Caribbean depends on it. Present a well-reasoned discussion on the law of incest in relation to this view. [10 marks] (b) Bomber has sexual intercourse with his 15-year-old step-daughter, Monique. Moniqe becomes pregnant and, after much prodding from her mother, Monique indicates that Bomber has been having regular sexual intercourse with her, since he did so forcibly over a year ago. When confronted, Bomber says, What's the fuss? I wasn't the first man anyway and she's not my child. Discuss Bomber's criminal liability, if any, supporting your answer with well-reasoned arguments and reference to case law. [15 marks] 30 minutes [2005, Paper 2] 25 marks Feedback:

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Activity 3.4 9. Scott and Maray are members of a study group. Maray goes to Scot's house to study Criminal Law, but when she arrives she discovers that other members of the group will be arriving later. She agrees to watch a movie with Scott until the others arrive. While watching the movie Scott makes sexual advances towards Maray and tries to kiss her. Maray pushes him of and threatens to scream but Scott overpowers her and has sexual intercourse with her. Maray goes to the police station and files a report. Scott is arrested and charged for rape. (a) Advise Scott on the likelihood of his conviction for rape. [15 marks]

(b) Would the situation be any different if Maray were Scott's wife? Give reasons for your answer. [10 marks] 30 minutes [2006, Paper 2] 25 marks Feedback:

Activity 3.5 10. Joe, a well-known artist, goes to his regular Friday night spot with his friends and, after a few drinks, arrives home drunk. Tara, his live-in girlfriend, is upset each time he comes home drunk and on this night, she slams the door to the guest room where she goes to sleep. I am finished, she tells Joe. Joe enter the room where she goes to sleep and punches her when she resists sexual intercourse with him. He then has sexual intercourse with her. Tara files a report with the police and Joe is arrested and charged with assault and rape. Joe seeks your advice. Advise him, with reference to decided cases, giving reasons for your answer, on (a) whether he is liable for assault and rape [18 marks] (b) whether your advice would be different if he and Tara were married. [7 marks] 30 minutes [2009, Paper 2] 25 marks Feedback:

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4. OFFENCES AGAINST PROPERTY The offences against property that are included in your syllabus are (i) theft; (ii) robbery; (iii) burglary; and (iv) criminal damage. You are required to know how to apply the basic principles of criminal liability to those offences. (i) THEFT The Anguilla Criminal Code provides for the offence of theft, and the old common law offence of larceny has been abolished. By section 242 of the Criminal Code, a person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it. The offence of theft may be divided into five elements. The first three: (i) appropriating, (ii) property, (iii) belonging to another, make up the actus reus, and the last two: (iv) with the intent permanently, and (v) to deprive, are the mens rea. The actus reus of theft: Let us look at the three elements of the actus reus in turn. (i) Appropriation: The word 'appropriates' means the assumption by a

person of the rights of another. Any assumption of any of the rights of an owner amounts to appropriation. Taking possession of another's property is a common form of appropriation. Destroying property is another form of appropriation, and may be an offence of criminal damage as well. Selling another's property, eg, a car held with a bill of sale in the name of a bank. Offering another person's property for sale amounts to an appropriation, even if the accused never takes possession of the property. If he comes by the property innocently and later assumes a right of dealing with it as its owner, that amounts to theft. A quartet of cases decided by the House of Lords has supplied authoritative discourse on the history and meaning of appropriation. In R v Hinks [2001], H, a woman aged 38, who claimed to be a care-giver to D who was proven to be mentally challenged, and easily taken advantage of, received over 60,000.00 which D transferred from his building society account to H's account. It was also proven that D understood the concept of ownership. He also gave H a television set. H was convicted on four counts involving the money and on one count with respect to the television. H appealed, but her conviction was upheld by the Court of Appeal and the House of Lords.

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Appropriation of the rights of an owner was found in the following circumstances: (a) Where a taxi-driver, without objection from his passenger, an Italian student who did not know the correct fare, over-charged the passenger. (b) Where the defendant replaced the price tag on a joint of meat in a supermarket by a lower price tag obtained from another joint. Any assumption of any of the rights of an owner amounts to appropriation. The right to label the goods is a right of the owner. The label switching amounted to an appropriation and theft. This would be so even if D abandoned the enterprise, leaving the goods with the switched labels safely on the shelf. Even if he re-switched the labels and left the articles exactly as he found them, that could not undo the theft he had committed. (c) Where a shop employee assisted a customer to obtain goods with the use of fraudulent cheques presented by a customer, that has been held to amount to an appropriation of the rights of the owner: In R v Gomez [1993], the accused was employed as the assistant manager of a shop. He persuaded the manager of the shop to accept two building society cheques from a customer in exchange for some electrical goods. He was aware that the cheques were worthless but told the

manager that they were 'as good as cash'. He was convicted of theft of the goods. He appealed to the House of Lords arguing that if the victim authorised the handingover of property there could be no appropriation. Held, the fact that the manager had authorised the handing-over of the goods was irrelevant to the issue of appropriation. All that needed to be shown for an appropriation was an assumption of any of the rights of the owner, and so the conviction was upheld. (ii) Property: This is the second element that must be satisfied for a theft to be proved. Property must have been taken. Property is defined as money, whether in the form of cash, cheque, credit card, bank draft, money order or otherwise, and all other property, real or personal, including things in action and other intangible property16. A chose is any form of intangible property, which can only be enforced by a legal action, eg, a debt, or the right of an heir to the estate of the deceased. The Act provides that certain property cannot normally be stolen. These include land, or things forming part of the land and severed from it, such as trees or minerals; and wild animals, tamed or untamed.

16

Criminal Code, s.245.

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The decision to make it not possible to steal land is due partly to the difficulties this would cause for land law. Only in very limited circumstances can a person be guilty of theft of land. So, a trustee or personal representative will be guilty of theft if he dishonestly sells land that was subject to the trust. Also, a tenant who is in possession of land under a tenancy can be guilty of stealing a fixture, eg, taking a kitchen sink away from a flat or apartment. Wild animals cannot be stolen since they do not belong to anyone. The position is different if the wild creature is ordinarily kept in captivity, then it can be stolen. A domesticated animal such as a dog or a cat is the property of its owner and can be stolen. This is a very important area, especially in these days when property in intangible things is increasingly becoming a problem, for example in the case of intellectual property, including property in one's likeness. Technological

advancements have certainly added much to the excitement of this area. It was held in Oxford v Moss (1978) that information itself is not capable of being stolen, so that taking an examination paper to look at the contents could not be theft of the information on the paper. It was fortunate for the student that he returned the

examination paper, because this meant he could not be guilty of stealing the piece of paper on which the examination was printed. He could argue that he had no

intention permanently to deprive the university of the piece of paper itself. If an employee receives an overpayment of wages by direct transfer of money from her employer, and knows of the overpayment but does nothing, she will be guilty of theft. She is under an obligation to make restoration of the value of the money when she found that the mistake had been made. In Chan Man-sin v A-G of Hong Kong [1988], C, an accountant of two companies deposited the proceeds of cheques forged by him from his employer's accounts into the account of a company he owned. He was charged with theft of the credit balance (that is, a chose in action) or the amounts owed by the employer's banks, and was convicted. He appealed, on the ground that there was no property in which there could have been an appropriation. His appeal was dismissed. Almost anything may be property, and, if it is possessed or owned by someone, it 'belongs' to him. The only exception at common law was the human body or parts of it. A body cannot normally be stolen, and that is true whether the person is dead or alive, although in certain circumstances a part of a body can be

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stolen.

There might be ownership of a human body or parts of a body by an

institution, though not by you and me of our body or body parts. You and I do not own the body of our relatives, so that if it is stolen the thief cannot be prosecuted for the offence of theft, though they may be guilty of some other offence. In R v Kelly [1998], K, an artist, had permission to draw anatomical specimens used by surgeons in training. With the help of a technician, he removed some of the body parts. Some of the parts were found buried in a field. A leg was found at K's flat and other parts at the home of one of his friends. He was convicted of theft and appealed. A ground of K's appeal was that the body parts were not "property." The court considered the common law rule of over 150 years that a corpse or part of it cannot be stolen. They found that the body parts had been in the "possession" of the College of Surgeons, within the meaning of section 5(1) of the Act. They could therefore be stolen. (iii) Belonging to another: This is the third element that must be proved in establishing the actus reus of theft. Normally there is little dispute about whether property belongs to another. In a typical shoplifting case the defendant is unlikely to dispute that the items belonged to the supermarket. "Belonging to" means having possession or control of, or having a proprietary right or interest in something17. It is possible for property to belong to no one. Some property cannot be stolen because no-one has any proprietary interest in it. This is true at common law of a corpse, and also arises when property has been truly abandoned (and not merely lost) by its owner. It is possible to steal one's own property where another person has a right of possession or control. In the case of R v Turner [1971], T took his car to a garage to have it repaired. When the repairs were practically completed, the car was left in the road outside the garage. T, in breach of his promise to the garage owner that he would come to pay for the job and collect the car, used his spare key and took the car, unknown to the garage owner and without paying for the repairs. He was

charged with stealing his own car. He was convicted of theft and appealed. In his defence, he argued that he could not steal his own car. T's appeal was dismissed. The court held that it is sufficient if the person from whom the property was taken was at the time properly in control of it.

17

Criminal Code, section 246.

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On the other hand, in R v Meredith [1973] M left his car in a road while attending a football match. The police removed the car to a yard where they parked confiscated vehicles. M went to the yard and saw his car, on the steering wheel of which a Police krooklock was placed. He removed the krooklock and drove the car away without the permission of the police. He did not pay the applicable fine. M was charged with theft of the car, the property of the police for obstruction of the road and with not paying the applicable fine. M contended that he could not steal what was already his. M's contention was upheld. The case turned on a

technicality. The police had no right to retain possession of it as against the owner. He should have been charged with a different offence, eg, of obstructing the police or interfering with evidence. Where property is with a bailiff, while he is in control of it, the property belongs to him. The general rule is that one cannot steal from oneself, but as in the case of bailment where "belonging to" extends to the bailee, in any circumstance where one's conduct indicates dishonesty, the Court will find accordingly. The mens rea of theft: The mens rea of theft is an intention permanently to deprive the owner of his property. By section 247 of the Criminal Code, the intention of permanently

depriving the owner of property exists if the intention is to treat the thing as his own to dispose of regardless of the other's rights, and a borrowing or lending of it may amount to so treating it if the borrowing or lending of it is for a period and in circumstances making it equivalent to outright taking or disposal. In R v Easom [1971], the appellant was convicted of theft of a handbag and its contents. He had taken the bag in a cinema, looked through it, and finding nothing of value, had put it back by the owner. His appeal was allowed and it was held that he could not in those circumstances be convicted of theft or attempted theft because there was no evidence of an intention of permanently depriving the owner of the specific property named in the indictment. What if the owner has conducted himself in such a way that another person concludes that he has no interest in an item but which the other person needs? The following case provides the answer. In R v Woodman [1974], A and his son B went onto Os land to collect scrap metal. The scrap metal was in fact the remnant of similar material previously sold by O to X. After X left, there still remained some scrap metal which O seemed to have no intention of removing at any time soon. O

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placed a sign at the premises on which were the words Private Property, Keep Out). O also installed a barbed wire fence. When A and his son went on the property and removed the scrap metal, did the scrap then belong to O? Did they dishonestly appropriate the property belonging to another within the meaning of section 1(1) of the Act? Yes, it was held that O was still in control of the scrap metal when A and his son B removed it. Borrowing without permission is not theft. In R v Lloyd [1985] L, who worked at a cinema, arranged with his accomplices to make copies of films for sale and profit. The reels were not away from the cinema for long, but L's action had the serious impact of depriving his employers of funds. He was convicted of theft but appealed successfully. Their Lordships found that L lacked the necessary mens rea, which is to intend to deprive the owner permanently of the item. Borrowing to return does not amount to stealing. The victim should seek his remedy in civil law. Punishment for theft In Anguilla, the punishment for theft is found at s.248 of the Criminal Code. This provides that any person who is convicted of theft is liable to imprisonment on summary conviction to 2 years, and on conviction on indictment for 10 years. Defences for theft In Anguilla, there is a statutory provision in s.243 of the Criminal Code for defences to theft. For a taking of someone else's property to amount to theft the taking must be dishonest. So, if the prosecution do not satisfy the jury that the taking was dishonest, the accused must be acquitted. The section envisages three different situations where the taking of someone else's property may not be dishonest. They are (i) a claim of right; (ii) a belief in consent; and (iii) inability to discover the owner. (1) A claim of right. The section provides that an appropriation of property belonging to another is not to be regarded as dishonest if the person appropriates it in the belief that he has in law the right to deprive the other of it on behalf of himself or a third person. The accused is not dishonest if he believes that he has a better legal right to the property than the other person. In R v Robinson [1977] the accused D ran a clothing club to which P's wife owed 7.00. D met up with P and, along with others, threatened him. A fight ensued during which a 5.00 note fell from P's pocket. D took the money, telling P that he still owed 2.00. Ds conviction for robbery was quashed. It was held that he only needed to show that he had an honest belief that he was entitled to the money and

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not that he honestly believed that he could have taken it in the way he did. A belief that the accused was entitled to take from the victim a sum of money which the victim owed him was held to excuse the taking. The belief must be a belief to a legal, as opposed to a moral, right to the property. (2) A belief in consent. A defendant who believes that the owner consented to what he was doing would not be dishonest. So, borrowing your brother's clothes would not be dishonest if you believed that he had or would have consented. Such a belief must be a genuine one. (3) Inability to discover the owner. Believing that you cannot discover the owner of a piece of property by reasonable means is a defence. If Lucy, after a party, finds a toothbrush in her bathroom and decides to keep it because she cannot reasonably find out whose it is she will not commit theft. If however, a week later Alex tells her that he has lost his toothbrush, but Lucy decides not to mention her discovery and to keep his toothbrush then she may be guilty of theft. An honest belief that property has been abandoned is a defence to theft, even if the belief was not a reasonable one. This belief is a denial of dishonesty. It is a denial of the intention of permanently depriving another person of the property. (ii) ROBBERY The actus reus of robbery By section 249 of the Criminal Code, a person is guilty of robbery if he steals, and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force. The penalty is a maximum of imprisonment for life. Force is the key factor in the actus reus of robbery. Robbery may be

described as an aggravated form of stealing. Note that the force must be applied "immediately before or at the time of the robbery. If X commits a theft, and then uses force to escape, X's theft would not be a robbery. A relatively small degree of force may be enough. The force or threat of force need not be directed at the victim of the theft, it may be used on a bystander, a hostage or a security guard. A threat of force is sufficient. So, an accused who passes a note to a bank cashier threatening violence unless money is handed over may be convicted of robbery if the money is indeed supplied. The force may take the form of snatching the property from the victim.

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Here are two interesting cases. In the first, the application of force was the issue before the House of Lords; in the second, the question turned on the extent of the force. In Smith v Desmond [1965], the two accused used force in their stealing of money from an office at a bakery. The two persons against whom they directed force were the night watchman and maintenance engineer. The court found that for the purposes of the charge they had the custody of the company's property. By placing the workers in fear of being subjected to force, the accused were held to have been correctly convicted for robbery. In R v Hale [1978], the two accused entered a woman's house, wearing stocking masks. One of the accused put his hand over the victim's mouth to prevent her from screaming. The other accused went upstairs and stole her jewelry box. Both men tied up the victim and upon leaving, threatened to harm her child if she called the police. The appellant was convicted of robbery and appealed on the ground that the force was used on the victim after the theft was complete. His appeal was dismissed on the ground that an appropriation may continue over a period of time. The mens rea of robbery What was said earlier about the mens rea of theft would apply here. An honest belief that one is entitled to the property taken will suffice. See R v Robinson above. (iii) BURGLARY By section 250 of the Criminal Code of Anguilla, the offence of burglary is committed if a person enters a building as a trespasser and with intent to commit any of the offences of stealing anything in the building, of inflicting on any person therein any grievous bodily harm or raping any woman therein, or of doing unlawful damage. The offence is also committed if he enters the building as a trespasser and actually commits any of the offences mentioned above. The penalty is imprisonment for 14 years. One of the most striking limitations of the offence of burglary in the old Larceny Act was its confinement to an offence committed in a 'dwelling-house'. Also, there had to be a 'breaking and entering'. Breaking in required that the entry be forced. If the householder left a door or window open, there was no burglary.

Breaking into a shop was the lesser offence of 'shop breaking'. Breaking into a house during the day was the offence of 'house breaking'. Another limitation was

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that the break-in had to be 'at night'. A break-in during daylight hours was the lesser offence of 'house breaking'. Those distinctions are now done away with. House breaking and shop breaking no longer exist as separate offences. Note the five elements of the offence of burglary, which are: entry a building as a trespasser awareness of being a trespasser intent to commit a crime or commission of a crime. The actus reus of burglary The actus reus of the offence comprises the entry of a building as a trespasser and attempting to steal anything in that building or to commit certain other specified offences. Entry: The leading case on entry is R v Collins [1972]. The accused climbed naked up a ladder to the bedroom of a girl he knew slightly intending to have sexual intercourse with her. It was the middle of the night and the girl was asleep in bed. When she saw the accused at the window she jumped to the conclusion that he was her boyfriend and invited him into the room. They then had sexual intercourse. She became suspicious and turned on the light and discovered it was not her boyfriend. The accused was charged with burglary with intent to commit rape. His conviction was reversed. He might have intended to commit rape but his belief that the girl welcomed him was an honest one. By her welcoming him in, as he thought, the defendant had not committed the necessary trespass for burglary. How much of the body must have "entered"? The answer is that any part will suffice. In one old case the accused, with intent to steal, inserted a bit into a door, near the bolt. The end of the bit penetrated the door but no part of his body entered the house. His indictment for burglary was dismissed. A building: The word 'building' is not defined. Inhabited vehicles and

vessels are included. It must be a construction that has a degree of permanence. Where a building such as a bank or a shop is generally open to the public but have sections that are reserved to staff, entering one of those private parts without express permission as a trespasser suffices. The physical characteristics of the building will be relevant. There needs to be some sign or marking that separates the part of the building not open to the public, for example, a 'no entry' sign.

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As a trespasser: The entry of the building must be 'as a trespasser'. A trespasser is a person who lacks authority for his presence. He must enter the building as a trespasser. It is not enough if he enters with permission but becomes a trespasser at some later stage, eg, on being asked to leave. If the permission to enter is obtained by a misrepresentation, then the permission may be invalid. The mens rea of burglary Awareness of being a trespasser: The accused must have entered as a

trespasser with intent to steal or to commit one of the prescribed offences. There can be no reasonable or honest belief that he should be there, unless he has permission. There is also an element of mens rea required in the trespass, as was held in Collins. There cannot be a conviction for entering premises 'as a trespasser' unless the person entering does so knowing that he is a trespasser, or is reckless whether or not he is entering without consent, and nevertheless deliberately enters. This is the 'awareness of being a trespasser' element. In R v Smith and Jones [1976], two boys decided to steal two television sets from the house of the father of one of the boys. They entered the house with that intent. The father reported the theft to the police. At the trial, the father gave evidence to the effect that he had given his son unreserved permission to enter his house. Following Collins, it might appear that the son could not have committed the necessary trespass for burglary. Both were convicted of burglary and appealed. Held, they had correctly been found guilty of burglary as if you go in intending to steal, then your entry is burglary, it is a trespass because no one can give you permission to go and steal in the house. With intent: The final element is the 'intent to commit a crime'. The most common form of burglary involves an intent to steal. But, the intent may be to commit GBH, or to rape, or to do unlawful damage. The offence is complete as soon as the accused enters the building with intent. It is irrelevant that he has not been able to do anything to further his intent. Aggravated burglary: If the burglar has any form of offensive weapon with him he will be guilty of the more serious offence of 'aggravated burglary' which carries a maximum term of imprisonment of life. It is committed if, at the time of the burglary the accused had with him a firearm, a weapon of offence or explosives. A 'weapon of offence' is any article made or adapted for use for causing injury or incapacitating a person. An innocent object such as a screwdriver could be

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regarded as a weapon of offence depending on the circumstances. (iv) CRIMINAL DAMAGE What used to be called malicious damage is now known as criminal damage. In Anguilla, the offence of criminal damage is found at s.302 of the Criminal Code. This provides that any person who without lawful excuse destroys or damages the property of another either with intent to do so or reckless as to whether it is destroyed or damaged commits an offence. The section creates three different offences of criminal damage, ordinary criminal damage in subsection (1); dangerous damage in subsection (2); and arson in subsection (3). Ordinary criminal damage is punishable with up to 10 years

imprisonment, while dangerous damage and arson are punishable with up to life imprisonment. Ordinary criminal damage The ingredients of this offence are (1) destruction or damage, (2) property, (3) belonging to another, (4) intention or recklessness, (5) without lawful excuse. (1) Destruction or damage. The actus reus is the destruction or damage. The word damage should be given its ordinary meaning. What constitutes damage will depend on the nature and use of the item. Splattering mud on a parked car may not constitute damage, but it might be on a painting. The most useful test is

probably to ascertain whether or not Ds act has impaired the value or usefulness of the item. A machine may be damaged by removing an integral part; or by tampering with it so that it will not work; or by running it in a manner to cause impairment; or by dismantling it. Painting graffiti on a public building constitutes damage because the government is involved in expense to remove it. Spitting on a wedding dress could be damage, though not on a rain coat. (2) Property. Property is defined in the Act and is expressly limited to

tangible property. It includes land, but excludes patents, copyrights, etc. In one case, the defendant physically erased a computer program from a printed circuit card. His conviction was upheld because the damage was to the card itself and not to the programs, which were intangible property and so not protected by the Act. (3) Belonging to another. You cannot be convicted of ordinary criminal damage of your own property. But, the offence of dangerous criminal damage can.

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(4) Intention or recklessness. The mens rea for s.302(1) requires intention or recklessness as to causing the damage to property belonging to another. (5) Without lawful excuse. The criminal damage offences do not contain that element of mens rea that is so typical of theft, ie, dishonesty. However, the damage caused must have been without lawful excuse. There are two main defences: (a) the defendant believed that the owner consented to the damage, or (b) the defendant was acting in order to protect his own or anothers property. A belief that the owner consented or would have consented provides a defence even if it is an unreasonable belief and even if the mistaken belief is caused by the defendants drunkenness. In one case, the defendant argued that he believed that God owned the property and that God had authorised him to damage the property. He was held not to have a defence, but it is difficult to see why this was so. Possibly the court did not accept that he really believed that God owned the property or had the legal authority to consent to the damage. Damage done in order to protect other property may be a defence. To be successful, the accused must believe both that the other property is in immediate need of protection and that the means of protection adopted are reasonable in the circumstances. It might be necessary for a house which is on fire to be deliberately demolished in order to prevent the fire spreading to other houses. A fire break may have to be cleared through your neighbour's property to prevent fire spreading to your property. In one case, the defendants were found inside a nuclear base armed with a pair of wire cutters. They argued that they believed that by cutting the wire and getting into the base to protest they would lessen the chance of a nuclear war and its resulting damage to property. The courts held that they could not say that by cutting the wire they could believe that they were protecting property. In another case an accused deliberately set fire to property. His defence was that he wished to demonstrate the lack of fire precautions and to persuade the owners to install better fire-prevention facilities. Held, he had not acted in order to protect property by that act of setting fire to the property. Dangerous criminal damage This is a much more serious form of criminal damage. Two elements are required for this offence:

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(1) There must be ordinary criminal damage with a risk to life of another. The offence is committed when there is criminal damage done in such a way as to endanger the life of another person. You should be free to destroy property that belongs to you, but you should not do it in such a way as to endanger other people. An example of this offence would be where the accused threw a brick through the windshield of a car reckless as to whether life would be endangered by the damage to the property, ie, the shattering of the windshield and obscuring the driver's vision. If he intended to hit the driver with the brick that would be an offence against the person. (2) Dangerous damage also requires intention or recklessness in relation to endangering the life of another person by the destruction or damage. The mad scientist who blows up his garden shed and almost himself in an ill-fated experiment does not commit the offence, unless another persons life was thereby endangered. So, if a person lights a fire in his room and leaves the house, but unknown to him the building is well fireproofed and in fact there is no danger to anyone living nearby, the court can find him guilty of dangerous criminal damage. He has still acted recklessly regarding the risk to the lives of others. Arson The serious offence of arson requires no additional mens rea from that of simple criminal damage. What must be shown is that the destruction or damage was

caused by fire. The maximum sentence is life imprisonment. [Further reading: Smith & Hogan, Chapters 18, 21, 24 Herring, Chapters 11 and 12]

Activity 4.1 In each of the following exercises you are presented with a set of fact situations. Read each problem and answer the questions. Example: 1 Joseph a local businessman, intends to give his brother Benjamin a golden goblet. As a surprise, he places the goblet in Benjamin's bag. He then decides to frighten Benjamin and tells the guards to detain Benjamin for stealing the goblet. Question (a) Benjamin is or is not liable for theft of the goblet. (b) Reason (c) Case or statutory provision 2 Cain finds a ring, which he hides under his mattress, intending to sell the ring at a later date. He discovers that the ring belongs to Mrs. Abel who got it as an anniversary present from her late husband. Cain decides to keep the ring.

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Question (b) Reason

(a) Cain is or is not liable for theft and larceny

(c) Case or statutory provision 3 Moses, who is diagnosed as a schizophrenic, goes to the bank and signs over his bank account containing $2 million to his housekeeper, Miriam, who accompanied him. Miriam uses a part of the money to buy herself a small used car. Moses' son, Joshua, wants Miriam to transfer the funds back to Moses but she refuses. Question (b) Reason (c) Case or statutory provision 4 Goliath, a hobo, picks up scraps of building material from a junkyard owned by David's family. He is arrested while putting the materials in a truck. David's family intends that the material be taken to the city dump. Question: (b) Reason (c) Case or statutory provision 5 Sarah leaves a goat with Abraham telling him to take care of it until she directs him what next to do. Abraham sells the goat and uses the money. Sarah is furious, even though she had intended to give Abraham the goat when it got bigger. She wants him to be arrested. Question: (b) Reason (c) Case or statutory provision 6 Samson is owed $5,000.00 by his friend Aaron. His brother Ishmael sees Aaron and tells him that Samson now has a gun and "will do anything to get his money". Aaron, who has owed the money for a long time and has been avoiding Samson, becomes afraid, handing Ishmael $6,000.00, the excess to be taken as interest. Question (b) Reason (c) Case and statutory provision 7 Job decides to play a trick on Jeremiah his employer, who is very wealthy, but miserly. He hides in Jeremiah's closet, knowing that Jeremiah is gone to the theatre. Upon Jeremiah's entering the bedroom, Job who is wearing a mask, jumps from the closet with a toy gun in his hand. Jeremiah does not know that it is a toy gun and throws his wallet on the bed saying, "Take it, take everything". Job takes the wallet, which contains $20,000.00 and escapes, through an open window. Question (b) Reason (c) Case or statutory provision 8 One night, Esau and Jacob enter Isaac's house through an open upstairs window, using a ladder left in Isaac's garden. Isaac is their uncle. They intended (a) Job is or is not liable for robbery (a) Ishmael is or is not liable for theft and larceny (a) Abraham is or is not guilty of theft and larceny (a) Goliath is or is not guilty of theft and larceny (a) Miriam is or is not liable for theft and larceny

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to retrieve a coffee table they had left with Isaac some time ago, but which he has refused to hand over to them because they owe him money. Esau and Jacob take the table and also take a television set they believe is one belonging to their mother Rachel. Question: (b) Reason (c) Case or statutory provision (a) Esau and Jacob are or are not guilty of burglary

Activity 4.4 8.(a) Explain the actus reus of burglary. (b) Jamie's father tells him that one of the televisions in the house is his, now that he has moved into his own apartment. Jamie, who always thinks his father is stingy, goes to the house one night without his father's permission while his father is overseas. He is in the process of removing the television and other items from the house when he is arrested by the police. [10 marks] What is Jamie's criminal liability, if any? [15 marks] 30 minutes [2009, Paper 2] 25 marks Feedback:

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5. INCHOATE OFFENCES You are expected in this part of your syllabus to be able to apply the basic principles of criminal liability to inchoate offences. The word inchoate means 'just begun, undeveloped, in the process of, preliminary, rudimentary, or unformed'. These are offences that are in a sense incomplete. They are not concerned with the direct causing of harm to a victim, but with either encouraging or planning with others to commit crimes, or trying to commit the crime itself. Your syllabus requires that you understand the inchoate offences of (i) conspiracy; (ii) attempt; and (iii) incitement. An essential element in inchoate crimes is an understanding of who are the parties to a crime. In two inchoate crimes, incitement and conspiracy, more that one party is usually involved. We will, therefore, begin with a brief discussion of the parties to a crime, and then proceed to examine each inchoate crime separately. Parties to a crime Where more than one person is involved in a crime, the question of the liability of each one will arise. The actual perpetrator of a crime, or the one who effects it through an innocent agent, is guilty of the crime as 'principal'. One who does not perpetrate a crime, but participates in it by aiding, abetting or counseling its commission by the principal offender, is punishable as an 'accessory'. Note the crucial elements:- An 'accessory' is one who 'aids, abets, counsels or procures'. The principal and the accessory are equally guilty, though their roles are distinct. The accessory is punishable for his role before, or after, the fact, that is, of the crime committed. However, the offences of aiding, abetting, counseling and

procuring are not a part of your syllabus, and we shall not pursue this further. (i) CONSPIRACY Conspiracy in Anguilla is a statutory offence punishable with 3 years imprisonment. It is no longer a common law offence as it still is in some of our independent jurisdictions. In Anguilla, the law on conspiracy is contained in sections 30-35 of the Criminal Code18. A criminal conspiracy occurs where a person agrees with any other person to pursue a course of conduct which, if carried out, will amount to the commission of an offence. The offence of conspiracy is not committed if the

conspirator is the sole intended victim of the offence or the other person is his spouse, eg, in assisted suicide cases.
18

RSA c C140.

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The actus reus of conspiracy The act described as a conspiracy must be seen to have been agreed between the alleged conspirators, the end being the commission of a criminal offence. The

conspirators need not have taken steps to commit the offence; the agreement is the key element. At common law, the commission of the crime by any of the

conspirators is also sufficient, and all of them need not carry it through. Any conspiracy to commit a criminal offence must now be charged under the Criminal Code of Anguilla. Section 31 provides that if a person agrees with any other person that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions, will necessarily amount to or involve the commission of an offence by one or more of them, he is guilty of conspiracy to commit the offence in question. The penalty is 3 years imprisonment. In Shaw v DPP [1961], Shaw and others produced a booklet, "The Ladies' Directory, in which prostitutes advertised their services. Shaw was charged with and convicted of the common law offence of 'conspiracy to corrupt public morals'. He appealed unsuccessfully. In Knuller Ltd v DPP [1973], the appellants published a magazine entitled "Males". Most advertisements in it were by male homosexuals with a view to

attracting fellow homosexuals. The magazine had a circulation of over 30,000. The appellants were charged with 'conspiracy to corrupt public morals' and for 'conspiracy to outrage public decency', through the advertisements to induce readers to engage in homosexual practices "with intent thereby to debauch and corrupt the morals as well of youth as divers other liege subjects of Our Lady the Queen". The appellants were convicted on both counts and appealed to the Court of Appeal which dismissed their appeal. On their appeal to the House of Lords, their appeal was dismissed on the first count, but allowed on the second. It was held that the two offences are mutually exclusive, and only one should have been charged. Both cases are of great interest on the subject of morality and the law. You should make an effort to read the judgments. In Anguilla, these old common law offences of 'conspiracy to corrupt public morals' or 'conspiracy to outrage public decency' must now be prosecuted under the Criminal Code. Section 34 provides that a person who conspires with any other person to engage in conduct which tends to corrupt public morals or outrage public decency but would not amount to, or involve, the commission of an offence if carried

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out by a single person commits an offence and is liable on conviction to imprisonment for 6 months or to a fine of $500. In the Jamaican case of R v James Smith (1990), the appellant was a former Cabinet Minister who had the portfolio responsibility for the Ministry of Labour. The Farm Work programme fell under his portfolio. He was convicted of inducing his Permanent Secretary to embezzle money in the Farm Work programme from funds which came from the United States and Canada for the benefit of farm-workers in a compulsory saving scheme. The monies originated abroad but were embezzled in Jamaica, where both men were based. At trial, the former Minister gave no

evidence, exercising his right to remain silent. The Permanent Secretary pleaded guilty and both men had been convicted. Among the issues on appeal were that the object or purpose of the conspiracy was to obtain money outside of Jamaica and, therefore, whether the matter was indictable in Jamaica. Held, (i) the offence of conspiracy is complete by the agreement of two or more persons who agree to carry into effect an unlawful act, and depends not merely on the intention of two or more, but in the agreement of two or more to do an unlawful act or to do a lawful act by unlawful means. (ii) Where two or more persons engage in the common enterprise, the acts and declarations of one in pursuance of that common purpose are admissible against the other (Note: the Permanent Secretary cooperated with the police and testified against the former Minister). (iii) The mere agreement to commit the act having been made in Jamaica, even though the object of the agreement concerned persons outside of Jamaica, would not have rendered the men guilty. It was sufficient here that there was evidence of other overt acts in furtherance of the agreement, such acts having been committed both in Jamaica and abroad. The court found that the true object of the conspiracy was to defraud the Government's farm-workers' programmes administered by the Ministry of Labour and the further activities of the Permanent Secretary and the Minister were the means employed to that end. The appellant's conviction was upheld. The mens rea of conspiracy As we saw earlier, the agreement is the essential element in the crime of conspiracy. We also saw that not all the conspirators need to actually perpetrate the crime to be held liable. There are three elements to the mens rea of conspiracy.

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(i) The defendant must agree to pursue the course of conduct. (ii) The conspirators must all intend the full offence to be committed. (iii) There must be intention or knowledge of the circumstances rendering the conduct criminal. Take the offence of 'handling stolen goods'. One of the

ingredients is that the goods must have been stolen. So, a conspiracy to handle property which the conspirators think might be stolen would not be a criminal conspiracy. It would be if they believe it was stolen. The following case which involves a 'sting' shows, however, that even if there is a deliberate attempt to entrap one who has a criminal intent, it is no excuse for that person that his "co-conspirator" did not have the mens rea for the offence. The co-conspirator in Yip Chin-Cheung v R [1995] was here carrying out his duties in crime prevention. D was convicted of conspiracy to traffic heroin contrary to He had entered into an

common law and the Dangerous Drugs Ordinance.

arrangement with an American undercover agent of the Drug Enforcement Agency (DEA) with whom D agreed to meet in Hong Kong and to deliver the contraband to the agent there. This was a 'sting' operation and the authorities were fully aware of it. D proceeded with the deal as planned and D was arrested and subsequently convicted. The agent had, however, missed the flight and the actual delivery did not take place. D's point of appeal was that he was improperly convicted as the agent lacked the required mens rea for the offence. His appeal was dismissed. In the judgment of the Board, Lord Griffiths said that the facts of the case represented a common occurrence in which undercover agents enter into an arrangement by which they agree to commit a crime in order to prevent the wider perpetration of that crime. While the agent would not expect to be arrested, the same principle would not extend to the co-conspirator who would, as you can see, have the necessary mens rea, in any event. You will also note that even though an agreement is essential for a conspiracy to take place, these cases suggest that the agreement need not take place before the crime is committed, nor do the parties need to know each other. Mere publication by way of inducement, constitutes the "agreement". (ii) ATTEMPT The second inchoate crime in your syllabus is 'attempt'. When lawyers talk about the offence of attempt, they are describing one of three situations. There may be a thwarted attempt. This is where the defendant plans to commit the crime but just

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before he is able to do so, someone or something intervenes to prevent him committing the crime. For example, the defendant tries to shoot the victim but

someone knocks the gun out of his hands. There may be a failed attempt. Here the defendant does everything he plans to do but his plan is ineffective. For example, he shoots at the victim but the bullet misses. Thirdly, there may be an impossible attempt. What the defendant intends to do is in fact not possible. For example, he shoots the victim, but the victim is already dead. The law on attempts in Anguilla has been put in statutory form. The offence is covered by the Criminal Code at section 23. This provides that where a person, intending to commit an offence, begins to put his intention into execution by an act which goes so far towards the commission of the offence as to be more than merely a preparatory act, but does not fulfill his intention to such an extent as to commit the offence, he is deemed to attempt to commit the offence. The penalty, if the offence is punishable with imprisonment for life or for 10 years or more, is 7 years, and in any other case to the same penalty as may be imposed for the completed offence. The actus reus of attempt The question is what needs to be proved in order to convict a person of a criminal attempt? It is difficult to provide a simple test. The basic distinction between the non-criminal planning of an offence and the crime of attempt is that acts of mere preparation are not criminal, but an act in perpetration of the substantive offence is. The defendant must do an act which shows that he has actually tried to commit the offence in question. The mere intention to commit an offence is not criminal. Some act is required and not all acts towards committing a crime are indictable. Acts remotely leading towards the commission of the offence are not considered as attempts to commit it, but acts immediately connected with it are. In the case of R v Jones [1990], a man hid in bushes beside the victim's car. When the victim got into the car the defendant ran up, got into the car and pointed a gun at him. The accused was charged with attempted murder. The evidence that came out at the trial was that in 1985, Jones, a married man, had started an affair with Ms Gresley with whom he lived in Australia in 1986. In 1987 they were both back in England and Ms. Gresley began a relationship with the victim, Freeman. However, she continued to see Jones for whom she still had feelings. Later in 1987 Ms Gresley sought to break off the relationship with Jones and told him so, refusing all his advances. In January 1988, Jones applied for a shotgun licence and

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purchased two guns at first, then two more. He shortened the barrel of one of the guns and test fired it twice. Jones told his colleagues at work that he would be away in late January. He told his wife that he was going to Spain to do some work on their chalet. On the morning of the incident he left home dressed as for work. On that fatal morning, Freeman, Gresley's current lover, took his daughter to school by car. Jones who had been waiting for him, went into Freeman's car (as Freeman stopped to let off his daughter) and told him to drive. Jones had covered his face. In the course of the encounter, Jones pointed the sawn-off gun at Freeman and used words to the effect you are not going to like this". Freeman managed to wrestle the gun from Jones and threw it outside. Jones then tried to strangle him with a string. Freeman escaped and called the police. Jones drove away in Freeman's car. In Freeman's car the police found a bag belonging to Jones containing money and a sharp knife, a hatchet and some cartridges. The question for appeal turned on whether this was a situation of attempted murder. His defence was that he still had several acts to perform, namely the removing of the safety catch, putting his finger around the trigger and pulling it. Held, his actions were sufficient for an attempt at murder. The waiting in the bushes might be seen as mere preparation, but by the time the accused pointed the gun at the victim the offence of attempt had occurred. If a man should pull his female victim behind a hedge and start to pull at her clothing, he can properly be convicted of attempted rape. This would be more than mere preparation, even though a number of individual acts needed to take place before intercourse was to occur. In R v Campbell (1991), a man wearing a balaclava and carrying a replica gun was seen outside a post office. He approached the post office door several times but did not enter it. He was charged with attempted robbery. Held, he was not guilty of an attempted robbery. The court suggested that the mere preparation would have ended and the attempt begun once the accused had entered the post office. In DPP v Stonehouse [1978], the accused was a well-known legislator. He engaged in a series of deceptive conduct intended to give the impression that he had drowned off the coast of Miami. He did all this, including purchasing insurance policies on his life, in favour of his wife, in order to escape to Australia to live a new life with another woman. His wife never attempted to claim the insurance. S was eventually extradited to England and was convicted of 13 offences of dishonesty and five for attempting to deceive. His appeals were dismissed by the Court of Appeal and the House of Lords. Held, once he had faked his death by drowning, he had

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'crossed the Rubicon and burned his boats'. In R v White [1910], the appellant's mother was found dead sitting on a sofa. Beside her was a glass with a drink in which was found a poison, two grains of potassium cyanide. She died from heart failure and not from the poison, no

evidence being revealed that she had imbibed any of the drink. It was also found that even if she had taken that quantity of poison seen in the glass, it would not have been sufficient to kill her. The appellant was indicted for murder but was convicted of attempted murder. On appeal, held, there was sufficient evidence upon which the appellant had been convicted for attempted murder, albeit that his effort would not have resulted in his mother's death. The mens rea of attempt The mens rea of attempt is described by section 23 as 'the intention to commit an offence'. The case of R v Mohan [1976] is helpful. The accused drove his car directly towards a policeman who managed to jump out of the way. He was charged for attempting to cause grievous bodily harm to the policeman as a result of his driving. The jury found that he had been reckless as to whether his driving would cause bodily harm, and they convicted him. The accused appealed against his conviction. Held, the prosecution had not proved that the accused had the necessary intent, and he could not be convicted of attempt. Recklessness is not part of the definition of attempt, unless it is part of the definition of the offence. In R v Khan and Others [1990], the accused and five other men had met a 16 year old girl at a discotheque. They accompanied her to a house. Three of the youths succeeded in having intercourse with her, but others were unsuccessful. The girl did not consent to sexual intercourse. The two accused were charged with

attempted rape. Their defence was that they did not know that the girl was not consenting. The offence of rape is committed when a man has sexual intercourse with a woman who at the time of intercourse did not consent to it, and at that time he knows that she does not consent to the intercourse or he is reckless as to whether she consents to it. The accused were convicted of attempted rape, and appealed. Held, the accused were guilty of attempted rape, even if they did not know if the girl was not consenting but were reckless whether or not she consented. The mens rea for an attempted rape is that the defendant intends to perform sexual intercourse being reckless as to whether or not the victim was consenting.

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(iii) INCITEMENT Incitement occurs when one person seeks to persuade others to commit a crime. At common law, if I tell you that I wish you to commit a crime, in order to determine my criminal liability, it does not matter if you decline. I am liable for incitement, even though you, by declining, would not be guilty of any offence. The law considers it a danger to society for someone to manipulate others to commit crimes. person is particularly dangerous to society. In Anguilla, common law incitement has been abolished. A charge would now be brought under s.27 of the Criminal Code. This provides that when a person counsels another to commit an offence, and an offence is actually committed after such counsel by the person to whom it is given, it is immaterial whether the offence actually committed is the same as that counseled or a different one, or whether the offence is committed in the way counseled or in a different way, if in either case the facts constituting the offence actually committed are a probable consequence of the carrying out of the counsel, and in either case the person who gave the counsel is deemed to have counseled the other person to commit the offence actually committed by him. The penalty for incitement is the same as the penalty for the principal offence, except where specific provision is made, such as incitement to murder which is punishable with a maximum of seven years under s.161. The actus reus of incitement The essence of incitement is seeking to persuade another to commit a criminal offence. This may be by threat, pressure, encouragement or inducement. The actus reus occurs once the encouragement is communicated. There is no need for the incitement to be effective. It will still be an incitement even if the person incited rejects the advice, or because he had decided to commit the crime already. In Race Relations Board v Applin [1973], the accused sent a circular to the victim foster mother's neighbours complaining about her taking non-white foster children. The accused wanted her to take white foster children only. The question was whether the accused's action contravened the relevant provision of the Race Relations Act 1968 and amounted to the offence of incitement. Held by Lord Such a

Denning that 'incite' meant not only to urge or spur on by advice, encouragement or persuasion. The word is not so limited. A person may incite another to do an act by threatening or by pressure, as well as by persuasion.

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The old case of R v Most (1881) illustrates Lord Denning's words, pointing to the fact that it is from words spoken or written that liability arises in incitement. In that case the accused encouraged others in various foreign countries to assassinate their Heads of State. He did so in certain publications and was found guilty of incitement. In Invicta Plastics Ltd v Clare [1976], Invicta Plastics manufactured a device called 'Radatec' and advertised it for sale. Its purpose was for drivers to detect police radar. It was not illegal to own the device, but it was illegal to use it. Invicta Plastics was charged with the offence of inciting members of the public to use the radar detector. They were convicted and appealed. Held, the advertisement incited readers to commit an offence. The Court approved Lord Denning's dictum in the Race Relations Board v Applin. The mens rea of incitement To be liable the incitor, or principal, must incite the incitee, or accessory, to commit an offence which would be a crime by the incitee. In R v Whitehouse [1977], the accused was charged for inciting his 15 year old daughter to commit incest with him. The relevant provision under the Sexual Offences Act made it an offence for a woman of the age of 16 or over to permit a man whom she knows to be her father to have sexual intercourse with her by her consent. He pleaded guilty and was convicted and sentenced. On appeal against his sentence, the Court of Appeal gave him leave to appeal against his conviction as he had pleaded guilty to an offence unknown in law. Here the

accessory, the father, would not be guilty as the girl, the principal, could not commit the offence for which he was charged as she was not yet 16 years of age. The conviction was therefore quashed. He should have been charged with statutory rape instead. In R v Curr [1968], the accused had lent money and in return had taken family allowance vouchers as security. Borrowers signed their vouchers over to him which was against the law. He got a woman to cash the vouchers at the Post Office. She did not know that she was committing an offence. Curr was charged, among other things, with soliciting the woman to commit an offence. Curr was convicted and he appealed. Held, his appeal was allowed for the reason stated above, that is, that the woman did not know she was committing an offence. The court said that a defendant could only be guilty of incitement if the woman who was purportedly incited knew that the action she was asked to perform was an offence.

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[Further reading:

Smith & Hogan, Chapters 8, 9, 12 Herring, Chapter 18]

Activity 5.1 Read the following short problems carefully, then answer the questions which follow, and citing at least one appropriate case. 1 Mandy, a nurse's aide, is tired of her job as a caregiver to Mr P, an old man of 92. Mr P abuses her every day and makes her life difficult. Mandy puts a deadly poison in Mr P's tea, approaches him and says, "You old bastard, take this". Mr P tries to box the cup from Mandy's hand, but falls off the bed, breaks his neck and dies. Q Mandy is liable for attempted murder True [ ] Reason: Cases: 2 Peter agrees with Paul to break into Robert's warehouse to steal crates of sodas which they plan to sell at a fair in the adjoining village. Peter, who is a security guard at the warehouse, disarms the electronic security system. He becomes ill that night and is unable to participate in the break-in. Paul takes Timothy with him and they successfully undertake their project. Q Peter is liable for conspiracy, but not for the theft. True [ ] Reason: Cases: 3 Elizabeth and Marie decide to start a call girl service and a brothel called "House of Ecstasy. They print brochures in which they state the services to be provided at the House of Ecstasy and containing details of men and women willing to provide sexual favours. Elizabeth and Marie are liable for conspiracy to corrupt public morals and outrage public decency True [ ] Reason: Cases: 4 Raj agrees with Sterling who, unknown to him is an undercover agent, to deliver 3 kilos of cocaine at an overseas port. With the help of his confederates, Raj successfully places the drugs on board the designated flight but changes his mind about flying and sends Pete instead. Pete is arrested upon his arrival overseas. Q Raj, Sterling and Pete are guilty of conspiracy True [ ] Reason: Cases: 5 Sati operates a variety store which is not doing well. She and her husband, Tyler, decide to torch the store and claim on their insurance. Sati's father Raju False [ ] False [ ] False [ ] False [ ]

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overhears the discussion and torches the store while Sati and Tyler are away on vacation. Q Sati, Tyler and Raju are guilty of a conspiracy. True [ ] Reason: Cases: 6 Diego and Olivia are having problems in their marriage. Diego forms a new relationship with Constancia and decides to go abroad to live with her. Diego stages his death, but prior to doing so, he buys a large policy on his life, naming Olivia as the beneficiary. Before Olivia claims on the policy, Diego is found alive. Q Diego, but not Olivia, is liable for attempt True [ ] Reason: Cases: False [ ] False [ ]

Activity 5.2 D, a married man, is having an affair with W, who is also married. W's husband, C, who is terminally ill, is very distressed at W's lack of attentiveness towards him. At every opportunity, C bemoans the fact that he and W have been married since they were both 21 years old, over 35 years ago. C's friend, X, a known gunman visits C one day. C confides in X that he is quite angry with W. "To be truthful", C confides in X, "I really wish I could do something about my wife, but I don't have the strength". "Don't worry man", says X, "I'll fix the wretch", to which C responds, "I knew I could depend on you". X leaves C and instructs one of his henchmen, Y, to "get" D and W. Y takes with him, Z, to a secluded spot on the beach where D and W are known to frequent. Both Y and Z are armed. Y beckons to Z to shoot at D and W who are seen sitting on the bonnet of D's car. Z panics and misses W. D and W try to escape from Y and Z who both shoot at them. D dies and W is seriously wounded. It is Y who fires the fatal shots. Discuss the criminal liabilities of C, X, Y and Z. You should support your answer by reference to decided cases.

Activity 5.3 9. Ravi and Steward agree to manufacture bleach from a backyard factory, in breach of a city ordinance which forbids the manufacture of any bleach, soap or other cleaning substance without a licence from the Council. A friend of theirs, Lee, agrees to distribute the bleach to supermarkets. An explosion occurs at the factory, injuring Lee's driver while he is loading barrels of bleach onto a van. Ravi, Steward and Lee are prosecuted for breach of the city ordinance and for

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conspiracy. With reference to decided cases: (a) Advise EACH person (Ravi, Stewart and Lee) on his criminal liability. [15 marks] (b) Advise any ONE of the persons involved on his defence against the charge of conspiracy and the likely success of the defence. [10 marks] 30 minutes Feedback: [2008, Paper 2] 25 marks

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6. DEFENCES In this lesson, we shall be examining the defences which are available to an accused person and which appear in your syllabus. There are some defences which are no longer on your syllabus, such as necessity, duress and mistake. It should become apparent to you that in most, if not all, circumstances the essence of a defence is that there is no convergence of the actus reus and the mens rea. The effect of a defence is either to absolve the accused or to mitigate the punishment which would otherwise have been imposed. In the discussions about defences, distinctions are sometimes made between those defences which are "true defences" and those which are "hybrid defences". Underlying these distinctions is that a true defence is not merely an excuse, but points towards justificatory action. A hybrid defence would include those which are more of an explanation such as alibi, mistake, infancy and insanity. Some defences are even questioned whether they are really defences, such as necessity. Defences are also categorised as special defences and general defences. Special defences are those which an accused person claims in cases of voluntary manslaughter. In such instances, the accused is being charged for murder. These special defences are to be left to the jury and are:- (a) provocation; (b) diminished responsibility; and (c) suicide pact. The general defences include (a) insanity; (b) automatism; (c) intoxication; (d) duress; (e) necessity; (f) mistake; (g) consent; and (h) self-defence. We shall do only those that are in the syllabus. You are expected to be able to explain the defences of (i) insanity, (ii) diminished responsibility, (iii) provocation, (iv) intoxication, and (v) self-defence. (i) INSANITY Historically, insanity was a frequently used defence in instances when the punishment for murder was hanging. As is the case today, the burden was on the accused to prove that the accused was insane. The locus classicus or pivotal case is M'Naghten's Case (1843) from which the well-known M'Naghten Rules are derived. The facts were that M'Naghten tried to assassinate Sir Robert Peel, a leading politician. He killed, instead, Peel's Secretary. He pled insanity and the jury so found. The result of his successful plea of insanity was that he could not be convicted even though he had obviously committed the act. released. He was committed to life in a secure mental institution. But, he was not

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Following M'Naghten's acquittal, the House of Lords discussed the extent to which unsoundness of mind renders an accused person free of a charge of murder. So the famous M'Naghten Rules were formulated. The Rules were based on a series of questions posed to their Lordships. The test has been of wide application in common law jurisdictions, including the United States of America. They are as follows:(1) It must be put to the jury that "every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction." (2) "To establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or if he did know it, that he did not know he was doing what was wrong." (3) If the accused claims to have laboured under a delusion as to existing facts, he "must be considered in the same situation as to responsibility as if the facts with respect to which the delusion exists were true." In Anguilla, insanity is dealt with by s.15 of the Criminal Code. This provides that a person shall not be criminally responsible for an act or omission if at the time of doing the act or making the omission he is, through any disease affecting his mind, incapable of understanding what he is doing or of knowing that he ought not to do the act or make the omission. The main concepts which are usually examined, based on the M'Naghten Rules are:(a) (b) (c) disease of the mind defect of reason, and uncontrollable impulse

Let us take a look at each of these concepts. (a) Disease of the mind 'Mind' is used not to mean brain, but in the sense of 'the mental faculties of reason, memory and understanding'. A disease of the mind need not be permanent. This wide definition of insanity means that epilepsy and conditions caused by diabetes can be classified as forms of insanity.

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In the leading case of R v Kemp [1957], the accused suffered from a disease known as arteriosclerosis or hardening of the arteries. He made an entirely

motiveless and irrational attack on his wife with a hammer. He was charged with inflicting grievous bodily harm on her. It was shown that Kemp's illness did not cause him any mental trouble, but that when under an attack by the condition, he would suffer a temporary loss of consciousness which was what occurred when he injured his wife. He did not plead insanity. There was evidence that he was a devoted husband. On appeal it was held that 'the law is not concerned with the brain but with the mind'. It was held that the mind meant 'the ordinary faculties of reason, memory and understanding'. The M'Naghten Rules applied. In the leading case of R v Sullivan [1984], the accused had attacked the victim during an epileptic fit, and pleaded automatism. He was charged with causing grievous bodily harm. The trial judge ruled that this amounted to a plea of insanity and refused to let automatism go to the jury. The accused changed his plea to guilty of the less serious assault occasioning actual bodily harm and then appealed against conviction on the ground that the ruling of the trial judge was wrong. Held, the appeal was dismissed as epilepsy amounted to insanity in law. It did not matter that its effects were merely transitory. Epilepsy affected the mind in the sense of the mental faculties of reason, memory and understanding, and was not the result of some external cause such as drugs, alcohol or violence. (b) Defect of reason Under the M'Naghten Rules the disease of the mind must cause a defect of reason. The accused must be deprived by the disease of the power of reasoning, even if temporarily. In the leading case of R v Clarke [1972], the accused went into a supermarket and picked up a number of items, some of which she put into her bag. She was charged with stealing. Her defence was that she had no intent to steal and that she was a diabetic and had domestic problems. There was evidence that she had behaved absent-mindedly before this event and a psychiatrist gave evidence that she suffered from depression. Their lordships declined to find that the accused suffered from a definitive disease of the mind, a defect of reason. Confusion or absentmindedness causing a failure to use the power of reasoning or failure of concentration, does not amount to a defect of reason. convicted. Held, she was rightly

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In R v Windle [1952], the accused was married to a woman 18 years his senior. He was known to be a person of low intelligence. She was a depressed person who spoke of suicide. Windle's friends became tired of him talking about his wife's problems and of her suicidal wish. One of his friends told him, in apparent annoyance, to give his wife "a dozen aspirins". He administered some 100 aspirins to her, as a result of which she died. He later told the police he supposed he would be charged for it. This was evidence that he knew that he was doing an act which the law forbade. At his trial, he pleaded insanity. The trial judge ruled that the decision would rest on whether or not the accused suffered from a defect of reason as to not know that what he was doing was wrong, and that "wrong" meant "wrong according to law". It was accepted that he may have thought it was a kindly act to put her out of her sufferings or imagined sufferings, but this was not the relevant question. The court concluded that the accused knew that what he was doing was wrong according to law and his defence failed. His appeal to the Court of Appeal was unsuccessful. Held, upholding the trial judge's reasoning, that a man may be suffering from a defect of reason, but, if he knows that what he is doing is wrong and by wrong is meant contrary to law - he is responsible. A defendant who as a result of insane delusions believes that God has told him to kill people will not be regarded as insane. He will be aware of the nature of his acts and aware that what he is doing is contrary to the law. If he thought that God had told him that the people were in fact not humans but aliens from outer space whom he should destroy it would be different. In such a case the defendant would appear not to know the quality of his acts and would be classified as insane. It is open to debate whether it is proper to distinguish in this way between the form of the delusion. (c) Uncontrollable impulse The M'Naghten Rules do not cover a person who suffers from what is called an 'irresistible impulse' to act, if he knows what he is doing and knows that it is contrary to law. The issue of uncontrollable impulse arises where the accused is alleging that because of his defect of reason due to a disease of the mind, even though he appreciates the nature and quality of his act and knows his act to be wrong in law, he was unable to prevent himself from acting as he did. In Sodeman v R [1936], the appellant was a labourer. He took a young girl for a ride on his bicycle, strangled her, tied her hands behind her back, stuffed some

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of her clothing into her mouth, and left her for dead. The cause of death was suffocation. The petitioner had committed three previous murders in very similar ways. The petitioner's defence was that he had acted on an uncontrollable impulse as he was insane at the time. At the trial two government prison doctors gave evidence in support of that defence. No expert evidence on that issue was tendered by the Crown. Held, (i) the law with regard to insanity was stated in M'Naghten's case, and there was not to be added to that statement another rule that where a man knew that he was doing wrong, but was forced to do the act by an irresistible impulse produced by disease, he could rely upon a defence of insanity; (ii) the burden in cases in which an accused had to prove insanity might fairly be stated as not being higher than the burden which rested upon a plaintiff or defendant in civil proceedings, ie, on a balance of probabilities. In Attorney General for the State of South Australia v Brown [1960], the respondent had been taken on as a station hand at a sheep station in South Australia. He went to the bedroom where the station manager was in bed asleep and shot him through the head. No one at the sheep station had given the

respondent cause for malice. Some days later the respondent, who had left the sheep station, gave himself up to the police. He admitted the shooting but said he was not responsible for his actions at the time. In answer to a question by the police whether he knew at the time when he shot the deceased that it was wrong to point a loaded rifle at a person and shoot him, the respondent replied, "Yes. But I couldn't help myself". The respondent was tried on a charge of murder. In a statement from the dock at his trial he said, "I shot the victim, but I do not know why. I had no reason to shoot him". His defence was insanity, medical evidence being tendered that the respondent had a schizoid personality. Irresistible impulse, however formed no part of the defence at the trial, the issue being whether, at the time of the shooting, the respondent knew that what he was doing was wrong. In a summing up which put the defence of insanity before the jury, the trial judge, among other matters, directed the jury that a defence of uncontrollable impulse was unknown to the law and that, if the jury thought that uncontrollable impulse was the true explanation of the respondent's act, he was guilty. The accused was convicted and appealed. Held, the respondent's answer to the police and his statement in the dock justified the trial judge in explaining to the jury that the criminal law of South Australia did not recognize the defence of insanity on the ground of uncontrollable impulse; nor did

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the trial judge's direction as to the respondent's guilt, if uncontrollable impulse was the true explanation, amount to a misdirection. (ii) DIMINISHED RESPONSIBILITY We have dealt with this defence at length in the lecture on manslaughter, which you should review carefully. (iii) PROVOCATION We have already examined provocation when dealing with murder and manslaughter. You should revise the Lesson dealing with this topic where it is dealt with at some length. You should pay close attention to the cases dealt with there, which set out the criteria for determining when the defence applies. (iv) INTOXICATION Intoxication is another interesting, even controversial defence which applies to a criminal charge in very limited circumstances. Strictly speaking, there is no defence of intoxication. Rather, in some cases it is possible to introduce evidence of

intoxication to support a defence of no mens rea. In such a case the defence is no mens rea, not intoxication. Intoxication covers the effects of drugs and solvents, as well as alcohol. There are two types of intoxication, namely (a) voluntary and (b) involuntary intoxication. We shall look at each one in turn. In Anguilla, the question of whether intoxication can be used as a defence is provided for by s.16 of the Criminal Code, which repeats the common law position. It provides that intoxication shall not constitute a defence to a criminal charge, save that if, by reason of the intoxication, at the time of the act complained of the person did not know that such act was wrong, or did not know what he was doing, and the intoxication was caused without his consent by the malicious or negligent act of another, or he had by reason of the intoxication become temporarily insane at the time of the act. In the first case he will be not guilty, while in the second case he will be dealt with as an insane person. (a) Voluntary intoxication Voluntary intoxication is sometimes referred to as self-induced intoxication. The key question is: did the defendant knowingly take alcohol or illegal drugs. If the answer is yes the defendant will be voluntarily intoxicated. If the answer is no, or the

defendant believed the drink to be non-alcoholic or the drugs were legal and the defendant was not aware they would have the effect of causing him to lose selfcontrol, then he is involuntarily intoxicated.

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So far as voluntary intoxication is concerned, the basic rule is that it is no excuse in law that, because of drink or drugs which the accused himself had taken knowingly and willingly, he had deprived himself of the ability to exercise self-control, to realise the possible consequences of what he was doing or even of being conscious that he was doing it. A distinction is made between crimes of 'specific intent' and crimes of 'basic intent'. In crimes of specific intent, eg, intent to do grievous bodily harm, the burden of proof of the intent remains on the prosecution. If the defendant can introduce evidence of intoxication to deny that the had the necessary mens rea, then he will not be guilty of the more serious offence, but the jury may find him guilty of the less serious offence which does not require proof of specific intent. The effect of voluntary intoxication on crimes of basic intent was highlighted in the leading case of DPP v Majewski [1975]. M was a drug addict and had

consumed large doses of amphetamines and barbiturates, prior to an evening of drinking at a pub. He admitted to having "gone paranoid" before, but said that this was the first time he had "completely blacked out". M claimed to have been too drunk from the combined use of drugs and alcohol, negating mens rea. Medical evidence was adduced indicating that such effect as M described was uncommon, and that it was more likely that a person so intoxicated would know what he was doing at the time, but to suffer an "amnesic patch" later. Majewski was convicted for occasioning bodily harm and assault of a police constable in the execution of his duties. M's appeal against conviction was dismissed by both the Court of Appeal and the House of Lords. Their lordships concluded that self-induced intoxication is no defence to a crime of basic intent, where the mens rea is assumed and need not be proven. To repeat, although self-induced Intoxication could be a defence to a crime such as murder that requires a specific intent, it is no defence to a crime of basic intent that can be committed recklessly. Self-induced intoxication is a reckless

course of conduct which can be viewed as itself an integral part of the crime. Review also the case of R v Moloney seen earlier. (b) Involuntary intoxication Involuntary intoxication is a defence to both crimes of basic intent and crimes of specific intent, in that it negates mens rea. Sane automatism may also be a defence in such instances. Where, for example, A 'laces' B's drink with an intoxicant,

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unknown to B, if B engages in an unlawful act due to his intoxication, B becomes an innocent agent and A the principal. In the leading case of R v Kingston [1994], the defendant, a paedophilic homosexual, was lured to his enemy, P's flat. The enemy laced his cup of coffee with a drug. K was taken to a room where there was a drugged naked 15 year old boy. He had been drugged by P who, seeking to blackmail K, had procured the boy. P then induced K to assault the boy. In his defence K argued that his drink had been laced and that he remembered seeing the boy on the bed, but remembered nothing afterwards. His defence was that because of the drugs, his inhibitions were

removed and although normally he would have been able to resist such a temptation, he committed an indecent assault on the boy. K's appeal to the Court of Appeal was allowed. His conviction was quashed on the ground that the

surreptitious administration of the drugs had the effect of negating any mens rea he could have formed. The Crown appealed to the House of Lords. The House of Lords allowed the Crown's appeal holding that K had known what he was doing. He had intended to commit an indecent assault on a 15 year old boy. That was the mens rea of the offence. A drugged intent is still an intent. The fact that, but for the secretly administered drug, he would not have formed the intent was a matter going only to mitigation of the penalty. This case stresses the point that there is no such thing as a defence of intoxication. Intoxication is only relevant if it is evidence supporting a defence of no mens rea. It was a harsh decision, but the court seemed concerned that a defence of involuntary intoxication would be easy for a defendant to raise and difficult for the prosecution to disprove. (v) SELF-DEFENCE We have come to the final of our defences, and perhaps, fittingly, it is left for last as it is so often raised, albeit without merit. Like other defences which are prone to abuse, the Courts have applied rigid conditions. The defence of self defence, ie, the use of reasonable force, meaning appropriate force at that point in time, will be acceptable in the following circumstances:1) in defence of oneself and one's family; 2) in defence of one's property; 3) to prevent a crime; or

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4) to make a lawful arrest or detention. Requirements for the defence: In Anguilla, self-defence is specifically provided for by s.20 of the Criminal Code to be dealt with according to the common law. The section provides that criminal responsibility for the use of force in the defence of person or property shall be determined according to common law. At common law there are four main requirements: (1) The defendant must be responding to an unjustified threat to the defendant or her property or someone else; (2) the force used by the defendant must have been necessary to avoid the threat; (3) the force used by the defendant must have been proportionate; and (4) the defendant must have been acting in order to defend herself or someone else and not for some other reason. (1) Unjustified threat: The victim must pose an unjustified threat to the defendant or another. Lawful self defence applies where a sleepwalker, who is not blameworthy, uses force against the defendant. The defendant will not be entitled to the defence if he was responsible for the attack against him, eg, if Jack hits Arnold and Arnold responds by pushing Jack away, to which Jack responds by stabbing Arnold. For the defence to work, it is necessary to show that the defendant believed that he was responding to an unjust threat, whether or not in fact there was an unjust threat. (2) Necessary force: It must be shown that the defendant was obliged to use force in order to avoid the threat. If he could easily have escaped from the attack but instead decided to use violence in return, the defence may not be available. As long as the defendant believed that the use of force was the only effective way to repel the attack, and there was no reasonable means of escape, he or she will be able to rely on the defence. The case of Palmer v R [1971] was an appeal from Jamaica based on the shooting to death of a man by the accused. Palmer and a group of men went to buy ganja. A dispute arose and P and the others took the ganja and left without paying for it. They were chased and P used a gun he had with him to shoot the deceased. He appealed against conviction on the ground of self-defence. His appeal was dismissed.

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(3) Reasonable force: The force must be a proportionate or reasonable response to the threat as the defendant believed it to be. An important factor will be the seriousness of the threat and its object. It may not be reasonable to pull a knife to repel an assault by fist. When deciding whether the response of the defendant was reasonable, the jury should not be unduly strict. If there has been an attack so that defence is reasonably necessary, a person defending himself cannot be expected to weigh to a nicety the exact measure of his necessary defensive action. If in a moment of anguish a person attacked had only done what he honestly and instinctively thought was necessary, that would be the most potent evidence that only reasonable defensive action had been taken. Where a defendant is acting to protect property it will be rare for a jury to find that a defendant's very violent response was reasonable. appropriate. The use of force must be proportionate to the threat as it was perceived by the defendant. In R v Owino [1996], the defendant was convicted of assaulting his wife, occasioning actual bodily harm. In his defence, he advanced that he used reasonable force to prevent her from assaulting him. He was convicted and However, a low level of violence may be thought

appealed on the ground that the trial judge had failed to direct the jury that test of reasonable force was subjective. His appeal was dismissed. Held, when the

defence is the use of reasonable force in self defence, the jury have to decide whether the defendant honestly believed that the circumstances were such as required him to use force to defend himself from an attack or a threatened attack. But the jury must then decide whether the force used was reasonable in the circumstances as he believed them to be. (4) The action was for defence and not for some other reason: It needs to be shown that the defendant was not acting out of revenge or any other motive. In Ayliffe v DPP [2005], the defendants entered military bases to protest at the Iraq war. In defence to charges of aggravated trespass and criminal damage they

argued they were acting to prevent a crime, the, as they saw it, illegal war. Held, the defence could not be used because their acts were for protesting and not genuinely in an attempt to prevent the damaged items being used in the war. In R v Clegg [1995], the defendant fired shots at a car which approached a patrol of which he was a part, performing his duties as a soldier in Northern Ireland. The car came at great speed. C fired three shots at the windscreen and one after the car passed. This fourth bullet was fired after the car had passed the checkpoint.

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It killed a passenger in the car. The defendant was charged with murder.

C's

defence was that he fired the shot in defence of himself and a fellow soldier. He was convicted and his two subsequent appeals failed. Held, the force used was

excessive. As the car had driven past the checkpoint and was driving away at speed, it could not be argued that it or its occupants were threatening Clegg or his colleagues or posed an immediate threat to other people. It did not matter that he had acted in the course of his duty. In Shaw v R [2002] S appealed from his conviction in Belize for murder. His appeal was self-defence. The Board stated the common law of Belize to be similar to the common law of England and framed the test to be:(i) Did the appellant honestly believe or may he have believed that it was necessary to defend himself? (ii) If so, and taking the circumstances and the danger as the appellant honestly believed them to be was the amount of force which he used reasonable? In Beckford v R [1988], the appellant was a policeman in Jamaica who, while investigating a report that a man was terrorising his family, shot and killed a man who ran from the back of his house. He was convicted for murder and his appeal to the Court of Appeal failed. He appealed to the Judicial Committee of the Privy Council. His appeal was allowed. Lord Griffiths re-iterated that "the test to be

applied for self defence is that a person may use such force as is reasonable in the circumstances as he honestly believes them to be in the defence of himself or another". [Further reading: Smith & Hogan, Chapter 11 Herring, Chapter 16] Activity 6.1 1. (a) How can intoxication be used as a defence? (b) What is the difference between voluntary and involuntary intoxication and their effect as a defence? 2. 3. 4. 5. 6. What are the elements of the M'Naghten Rules? Give a brief outline of each one. What are the issues surrounding self-defence and prevention of crime. (See Beckford v Regina and R v Clegg). Discuss the distinction between (a) insanity and (b) diminished responsibility. What is the effect of each as a defence. What does the Court consider in instructing a jury on provocation as a defence? How does intoxication affect crimes of basic intent and crimes of specific intent?

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Activity 6.3 8.(a) Explain the legal principles established by the M'Naghten Rules relating to the defence of insanity, citing decided cases to illustrate your answer. [10 marks] (b) Marcus is a strong supporter of his town's cricket team, Gabba Stars. He and his friends attend a match one afternoon and, much to their surprise, Gabba Stars loses the match by two runs. Some Gabba fans, including Marcus, go on a rampage and damage the opposing team's clubhouse. In his defence before the court, Marcus claims that he had lost it, not knowing what he was doing and that he had just found himself going along with the crowd. Advise Marcus as to his criminal liability. [15 marks] 50 minutes [2007, Paper 2, Specimen Paper, question 6] 25 marks Feedback: (a) You are expected to demonstrate a good understanding of the M'Naghten Rules in determining criminal liability on the grounds of insanity. (b)You are not only expected to discuss the application of insanity to the facts, but to support your answer with cases.

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7. SENTENCING In this lecture we shall evaluate the theories and practices of sentencing in the Commonwealth Caribbean. You should become familiar with the types of sentences available to a court, and to any special treatments afforded to young offenders. Sentencing is the means by which the State, taking into consideration a number of factors, decides by what means the offender rights the wrong he has committed against the State and its citizens. You would have noted that prosecutions are undertaken by the Crown or the State. It is dispensed with only when the Crown or State grants a fiat to the private citizen to undertake the prosecution. Let's look at the aims of sentencing: Sentencing in changing societies Sentences have always been prescribed in different forms and degrees, dependent on the nature of the crime. They have evolved over the years to reflect changes in the norms and values of society. For example, legislation may be enacted to

decriminalize an activity (such as homosexuality, in England, after the Wolfenden Report of 1957), or it may create a new offence, such as in economic and antiterrorist issues, in keeping with current trends. Changes can be brought about by popular agitation, such as is the case being urged concerning the use of marijuana (ganja) for medicinal and religious purposes. Changes can also be prevented by popular agitation, such as is

demonstrated by many of our own people on the subject of capital punishment. (i) Aims of sentencing In the past, and still so in some cultures, gruesome forms of punishment were imposed for crimes considered heinous such as murder, rape and theft. These punishments included 'hanging, drawing and quartering', amputation, and drowning. In the case of very serious crimes, our system of justice seeks to impose types of punishment which are consistent with the nature of the crime. In the Caribbean, it is generally accepted that there are really five objectives which comprise the aims of punishment. They are: (a) Retribution The concept of retribution recognises that punishment is intended to reflect the denouncement by the society and legislature of the offence and the offender. The offender should get his 'just deserts'. This theory is that offenders

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should be punished in proportion to their blameworthiness. The law assumes that, in the absence of evidence to the contrary, people are able to choose whether to do criminal acts or not, and that a person who chooses to commit a crime is responsible for the resulting evil and deserves to be punished. The court sees its task as one of fitting the penalty to the particular degree of iniquity and dangerousness of the offender's conduct. Thus, the sentence should adequately reflect the revulsion felt by citizens of a particular crime. Its purpose is thus not only punishment but also a public denunciation of the conduct in question. It satisfies the demand for retaliation by the public. It follows that the sentence must also be proportionate to the offence. Difficult as the task is, the court must do the best it can. (b) Deterrence vis a vis potential offenders The offender must be punished appropriately to deter other like-minded offenders from engaging in that form of deviant behaviour. Potential criminals should be discouraged from committing a crime through fear of punishment. (c) Deterrence vis a vis the particular offender Here, the purpose is to seek to ensure that the offender himself is deterred from future criminal conduct by the punishment inflicted upon him. (d) Prevention This is aimed at preventing the particular offender from offending against the law by incarcerating him. By imprisoning a repeat offender, the court protects society in making him incapable of committing another offence. This is also called the theory of incapacitation. (e) Rehabilitation the aim is to rehabilitate the offender so that he may reform his ways to become a contributing member of society. This is also referred to as the theory of reformation that the goal of punishment should be to reform the criminal so that he will not commit a crime again. At different times in penal history, one or other of these theories have held sway. No doubt, all five are factors weighing on a sentencer's mind, even though they are to some extent conflicting. In some cases one object may be predominant. In other cases, other objects may prevail. Each case must depend on its own

circumstances. Various factors must be considered by the court in deciding which principle of sentencing should predominate. The theories of sentencing affect the way in which the courts approach the issue. These theories are as given below.

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(ii) Factors which influence sentencing In trying to determine an appropriate sentence in a particular case, the courts take into account a number of factors. These include: (a) The background of the offender. Does he keep good company, or is he engaging in anti-social behaviour. (b) The seriousness, nature, and circumstances of the offence. The court must consider the degree of moral fault and the extent of any harm done. The court attempts to have regard to thoughtful public opinion, not the hysteria which sometimes follows notorious crimes, in assessing sentence. This may be seen in the reaction of the court to public disquiet about the prevalence of rape and offences against children by paedophiles. Concerning the amount of harm done, he who attempts to commit a crime is legally no less blameworthy, and may be no less dangerous, just because the attempt happened to fail. Strictly, the person convicted of an attempt is subject to the same penalty as he who succeeds. But, in practice, the courts do not punish the attempt as severely as the completed offence. One who steals a large sum commits the same offence as one who gets away with a trivial amount. But, the second is likely to be punished much more lightly. If D assaults P, he is guilty of a summary offence punishable by six months' imprisonment. But, if the same assault, quite unforseeably, causes grievous bodily harm, the offender may be guilty of an indictable offence punishable by ten years' imprisonment. Dangerous driving causing three deaths is likely to be punished

much more severely than the same dangerous driving causing only one. (c) Was the offender in a position of trust? In a case involving a solicitor the court found that where a solicitor had breached his clients' trust and used their money to further his business deals, both the retributative and the deterrent aspects had to be considered. In Edwin Farfan v The State (1980), a case from Trinidad, where a 44year-old uncle molested his niece, the court felt that he had betrayed the confidence reposed in him and that the incident could leave psychological scars on the victim for the rest of her life. He was sentenced to 14 years imprisonment and 15 strokes of the birch. (d) Does the offender have any previous conviction? This could lead the court to decide that the offender should be kept away from society as long as possible. Conversely, a defendant who has a clean record would be considered less of a

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danger to society, especially if violence was minimal in the commission of the offence. (e) Was the offender on bail, parole or was he given a suspended sentence for which time has not expired? (f) What are the offender's family and social circumstances? (g) What is the offender's health status? A serious illness might make incarceration a risky form of sentence. (h) What is the offender's age? See, for example, the principle of doli incapax which states that children under 10 years of age are incapable of committing a crime. Where a defendant is young, this is a significant consideration. It may be considered that he has his whole life before him, and so should be given a chance. In R v Bird (1992), the defendant took a vehicle without the consent of the owner and committed several driving offences. The English Court of Appeal

weighed the fact that the defendant had accelerated towards police cars and collided with two of them against the fact that he was a young man of only 17 who had pleaded guilty. His custodial sentence of 15 months was substituted for one of 12 months since the mitigating factors were not overwhelming. Young offenders. For many years juveniles have been treated differently from adults in the criminal justice system. The courts have a particular concern about the case of young offenders. When speaking about young offenders and the law, it is necessary to understand that there are different provisions that apply to different ages. The term 'child' is defined19 by the Juvenile Act as a person under the age of 14 years. A 'young person' is one who has attained the age of 14 years and is under 16 years. A 'juvenile' is any person who is under the age of 16 years. A child under the age of 1020 is not criminally responsible for any act or omission. A person between 10 years and under 14 years is only criminally responsible if it is proved that at the time of doing the act or making the omission he had the capacity to know that he ought not to do the act or make the omission. The Commissioner of Police is required21 to ensure that any juvenile defendant detained in a police station or being conveyed to or from any criminal
19 20 21

By section 1. By s.17 of the Criminal Code. By section 11 of the Criminal Code.

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court does not associate with any adult offender. The police are required to consider whether bail should be granted to any arrested juvenile on the recognisance of a parent or guardian. The recognisance is the bail form whereby the surety or

guarantor of the accused, who promises to ensure that the accused will turn up for trial, undertakes to forfeit the bail money if the accused fails to appear at the trial. Generally, a juvenile may not be tried in the ordinary Magistrates Court, but in a Juvenile Court. Every court in dealing with a juvenile who is brought before it must consider the welfare of the child and is required by the Juvenile Act to consider whether it may be necessary to remove the juvenile from undesirable surroundings. Greater allowance is made for their youth when sentencing. It is also thought that reformative measures are more likely to have success with young offenders. The Juvenile Act provides that when a juvenile has been found guilty of any offence before a Juvenile Court, that court may make an order: (a) dismissing the case; or (b) under the Probation of Offenders Act; or (c) placing the offender, either in addition to or without making any other order under this section, for a specified period not exceeding 3 years, under the supervision of a probation order; or (d) committing the offender to the care of any fit person, whether a relative or not, who is willing to undertake the care of him; or (e) ordering the parent or guardian of the offender to enter into a recognisance for the good behaviour of such offender. A community service order as described below is appropriate for a young offender, particularly one who is a repeat offender or who is keeping bad company. Juvenile delinquency is understood as a symptom of some degree of maladjustment which needs to be treated. Court appearances cause stigma and should be avoided whenever possible. Juveniles are tried in the Juvenile Court rather than in the normal Magistrates Court. The police are encouraged to 'caution' juveniles rather than bring them to court. (i) What is the offender's financial situation? This is an issue which sometimes arises in discussions on the sentencing of wealthier members of society, as against poorer persons, in relation to the ability to pay for experienced counsel as versus legal aid which is not always served by more experienced counsel. The financial

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question is also important in relation to an offender's ability to pay fines which, when an offender cannot pay, his or her option is incarceration. The issue is also important in relation to an offender's admission to bail. (j) Whether a non-custodial or custodial sentence is appropriate, having regard to the nature of the crime. (k) Prevalence. The court takes into account what is the prevalence of the offence in the society. Where the offence is prevalent, the overriding consideration should be deterrence of both potential offenders and the particular offender. (l) Mitigating factors. The court takes into account mitigating factors personal to the offender, such as his good character, his plea of guilty, his remorse, and so on. It is always a mitigating factor if the defendant pleads guilty. This saves the court time and expense. The fact that the defendant has waived his right to require the

prosecution to prove its case may be taken as an indication of remorse. The court might feel that there is little need to keep the defendant away from society or to deter him from committing other crimes. In Farfan's case, the term of imprisonment was reduced from 20 years to 14 years because of the plea of guilty. (iii) Types of Sentences Available (1) Probation Order. This order, like the community service order usually involves the social services. The Social Services Department will undertake an investigation, and submit a report to the court. Depending on the report and the recommendation of the Department, the court will consider making a probation order under the Probation of Offenders Act22. It is widely used for juveniles in lieu of any other sentence, but rarely used for adults. In deciding if to impose probation, a court must consider the nature of the offence, the character of the accused, his age, health and mental condition, and the seriousness of the offence. The order is meant to ensure proper supervision by the probation department and may include stipulations as to how often and where the defendant should submit to the supervision of the probation officer who is assigned to supervise him. In Anguilla, by section 36 of the Criminal Code, an offender may be placed on probation under the Probation of Offenders Act. When an offender is put on

probation, he is given an opportunity to prove that he intends not to offend again. If he does commit another offence within the period of probation, he is brought back before the court to be sentenced for the original offence, as well as the new one.
22

RSA c P95.

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(2) Imprisonment.

This is the usual mode of punishment passed on a

defendant convicted of an indictable offence. The maximum period is determined by the statute. Life imprisonment is available in most jurisdictions for the most serious offences such as manslaughter, rape or trafficking in dangerous narcotics. It is

imposed on dangerous offenders who may be considered a menace to society. Prison rules dictate that an offender earns an almost automatic remission of up to one-third of any term of imprisonment to which he is sentenced. When a defendant is convicted of two or more offences arising out of the same incident, the court will order that they run concurrently, that is they are served together. If he is serving a sentence which is unrelated, the new sentence will generally be ordered to run consecutively to the existing sentence. In Anguilla, the penalty of imprisonment is provided for by section 37 of the Criminal Code. Imprisonment with hard labour has been abolished in Anguilla, but still remains in some countries. A person sentenced to imprisonment for life may be sentenced to a shorter term, except in the case of a sentence for murder. (3) Fines. A person liable to imprisonment may be sentenced to a fine, either in addition to or instead of imprisonment. Where a fine is imposed under any law, but there is no maximum, then the amount of the fine which may be imposed is unlimited, but shall not be excessive. Where an offence is punishable with a fine, the court may impose an alternative sentence if imprisonment if the fine is not paid within the period specified. The term of imprisonment for non-payment of a fine is prescribed by section 38 as follows:

Where the amount of the sum of money adjudged to be paid

The period of imprisonment shall not exceed 14 days 30 days 2 months 4 months 6 months

(a) does not exceed $200 (b) exceeds $200 but does not exceed $500 (c) exceeds $500 but does not exceed $1,000 (d) exceeds $1,000 but does not exceed $2,000 (e) exceeds $2,000

(4) Forfeiture. Section 41 of the Criminal Code provides that where anyone is convicted of certain offences the court may, in addition to any other prescribed penalty, order the forfeiture to the Crown of any property which is the proceeds of the offence. These offences include crimes of corruption such as official corruption,

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extortion by public officers, or being a public officer receiving property to show favours. Additionally, under drugs trafficking laws the court may in addition to the prescribed sentence order the forfeiture of property believed to have been acquired by the offender with the proceeds of his crime. (5) Compensation. In addition to any other punishment ordered by the court, a person convicted of an offence may be ordered by the court to make compensation to any person injured in his person or property by the offence. Any such compensation does not preclude the victim from bringing a civil action, but the court in the civil trial must take into account any compensation that may have been ordered in the criminal trial. (6) Costs. By section 43 of the Criminal Code, a court is permitted to order any person convicted of an offence to pay the costs of his prosecution. This is an option that is very rarely exercised. (7) Suspended sentence. Section 44 of the Criminal Code permits a court in certain circumstances to suspend the sentence. Suspension is only available if the sentence is not more than two years. The order is that the sentence is not to take effect unless the offender commits another offence punishable within a period of not less than one year or more than two years of the order. This option is

intended to be used in exceptional cases where a sentence of imprisonment would have been appropriate but for some reason, such as the age or previous clean record of the accused, the court wishes to give the offender an opportunity to redeem himself. If he commits another offence within the period of suspension, he is brought back before the court for the court to order the sentence to take effect either unaltered or for a reduced period. If the offender commits another offence for which he or she is found guilty during the period of the suspended service, the usual term of the sentence is that the offender serves the term which was suspended, plus the term of the new conviction with both terms running consecutively. (8) Security for keeping the peace. Here the offender is bound over for a specified period (usually not exceeding three years) to keep the peace and be of good behaviour. It is one of the lesser punishments that a court can impose. It can be imposed in addition to any other punishment including fine or imprisonment. If the defendant fails to keep the peace during the time specified, he may be called upon to forfeit the sum stipulated in the bond.

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In Anguilla, this sentence is provided for by section 45 of the Criminal Code. The offender is ordered to enter into a recognizance, with or without sureties, in such amount as the court thinks fit, that he shall keep the peace and be of good behaviour for a time to be fixed by the court. Once the offender does not commit another offence within the period of the recognizance, the security will be cancelled. If he does reoffend, the amount of the recognizance is forfeited from the offender and his sureties. (9) Conditional discharge. A court may discharge an offender on condition that he commits no offence during a specified period. This type of order is rarely used. It must not be confused with a binding over order or a conviction resulting in a 'reprimand and discharge.' Power to grant a conditional discharge must be founded in statute and it is usually stated as an alternative to absolute discharge. In Anguilla, this is a sentence provided for by section 46 of the Criminal Code. In this case, the court, instead of passing sentence, discharges the offender on his entering into a recognizance, with or without sureties, in such sum as the court thinks fit, on condition that he may be summoned before the court to receive judgment at a future sitting of the court. If he does not commit another offence his record will be clear of any conviction. (10) Absolute discharge. The mildest sentence the court can impose is to discharge the offender without punishment. This is provided for by section 50 of the Criminal Code. This option is available to the court where the court thinks the

charge is proved, but is of the opinion that, having regard to the character, antecedents, age, health or medical condition of the accused, or to the trivial nature of the offence, or to the extenuating circumstances in which the offence was committed, it is not expedient to impose any punishment. In such a case, the court does not proceed to conviction, but dismisses the charge. The accused is then clear of any criminal record. (11) Community service order. This type of sentence is provided for by section 51 of the Criminal Code. It provides that where a person has been convicted and might have been fined or imprisoned, the court may, in lieu of any other punishment, make an order requiring him to perform unpaid work under the supervision of the Chief Welfare Officer for such number of days being not less than 40 nor more than 150. This order is suitable where the court considers that the offender should be given a chance to prove that he will be of good conduct in the

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future and will not repeat the offence or commit any other offence. If he is brought back before the court for breach of the community order the court may revoke the community order and deal with the offender for the offence. (12) Death sentence. The death penalty has been abolished for murder in all British Overseas Territories. It was for years considered the mandatory sentence for murder, as it remains in some Commonwealth Caribbean countries. It is

performed by hanging the condemned person. The death penalty is criticised by many persons as being contrary to the constitutional protection against cruel and inhuman punishment. In Pratt and Morgan (1993), the Privy Council commuted the death sentences of the appellants on the ground that a 14-year delay in carrying out the sentences amounted to cruel and unusual punishment, but the legality of the death sentence as a matter of principle was upheld. In Guerra v Baptiste (1995), the Privy Council confirmed that sentences of death should be carried out within two years after conviction. If the prisoner files constitutional motions and seeks the intervention of international human rights bodies, the time period should be no more than five years. In R v Hughes (2001), the Privy Council considered the St Lucia Constitution and its legislation authorising the infliction of the death penalty. The Board

concluded that the mandatory nature of the death sentence amounted to inhuman or degrading punishment. Accordingly, the law would be modified to render the death sentence discretionary. It was the task of the judge after hearing submissions and evidence to determine the sentence. The mandatory death penalty is now unconstitutional in those jurisdictions with no savings clause in the Constitution23. [Further reading: Smith & Hogan, Chapter 1]

Activity 7.1 9. The aim of sentencing, especially in the case of young offenders, is to rehabilitate the offender and deter potential offenders. There ought always to be little emphasis on retribution. Discuss this view, with particular reference to current sentencing practices. 30 minutes [2004, Paper 2] 25 marks Feedback:

23

The Constitutions of Barbados, Guyana, Jamaica, Trinidad and Tobago contain savings law clauses.

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Activity 7.2 8.(a) Discuss the rehabilitation theory and TWO OTHER theories of sentencing. [19 marks] (b) Discuss whether there is any justification for the view that modern trends to rehabilitate offenders do not pay enough attention to victims' families. [6 marks] 30 minutes [2006, Paper 2] 25 marks Feedback:

Activity 7.2 10. The sentence should adequately reflect the revulsion felt by citizens to the particular crime. With reference to decided cases, assess the extent to which this view reflects sentencing practices in a named Commonwealth Caribbean country. 50 minutes [2007, Paper 2, Specimen Papers] 25 marks Feedback:

Activity 7.3 The sentence must be proportionate to the offence. Discuss this statement, identifying and analysing TWO theories of sentencing, with specific reference to the sentencing of young offenders. 30 minutes [2009, Paper 2] 25 marks Feedback:

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