Unit 4

Theft
Theft is contained in S1 (1) Theft Act 1968
A person is guilty of theft if he dishonestly appropriates property belonging to
another with the intention to permanently deprive the other of it
It carries a maximum 7 year sentence
Theres only one offence of theft and that is in S1 (1). Section 2-6 defines the
meaning of the words found in S1 (1)
Actus Reus of Theft
There must be an appropriation (S3)
Of property (S4)
Which belongs to another (S5)
Mens Rea of Theft
Dishonestly (S2)
Intention to permanently deprive (S6)
Section 3 Appropriation
This is defined as any assumptions of a person of the rights of an owner
This is where a person has come by the property innocently or not without
stealing it and later assumes the right to keep it or deal with it as an owner. An
appropriation doesnt have to include an outright taking it can be an
interference with any of the owners rights (e.g. to destroy, pass on, sell,
modify and enjoy quiet possession of).
Morris (1983)
D took articles from his supermarket shelf and attached to them price labels
which he had removed from cheaper items. At the checkout he was asked for
and paid the lower price, he was charged with theft.
House of Lords Held: This is an appropriation because D had assumed the
owners right to decide the price at which the gods were offered for sale.

An owners lack of consent is irrelevant to the question of appropriation.

Lawrence (1971)
V was an Italian who couldnt speak English and had just arrived at Victoria,
London, and asked D, a taxi driver, to be taken to a place, the fair for which
would usually cost 50p. When they arrived, V took a pound out of his wallet
but D shook his head. V then offered him his wallet and invited D to take out
the correct fare. D took a further 6 and was charged with the theft of the
excess.
House of Lords Held: D was guilty of theft because even though he
appeared to consent it was not real due to being induced by fraud.
The issue of appropriation was finally settled in:
Gomez (1993)
D was the assistant manager of a shop who persuaded V, the manager, to sell
electrical goods worth 17,000 to an accomplice, X, using two cheques, which
D knew to be stolen. D was charged with theft.
House of Lords Held: The consent of the owner to any act done to the
property is irrelevant. Anyone doing anything to the property or to another
with/without authority or consent of the owner has appropriated.
Section 4 Property
S4 (1) states that property, for the purposes of theft, include both real and
personal property.
Real property is land and anything attached to land. Personal property
includes money, belongings and intangible property (e.g. shares, bank
accounts, copyrights, trademarks, and things in action such as cheques and
bankers drafts).
S4 (2) says that land cannot be stolen. Gas and water are property but
electricity is not and therefore can be stolen. However, it is an offence under
S13 Theft Act 1968 to abstract electricity (e.g. unauthorised use of a
landline/Wi-Fi).
Confidential information, knowledge and intellectual property cannot be stolen.

Oxford v Moss (1979)

D, a student, borrowed an exam paper which had not yet been taken, read it,
copied it and returned it. He was charged with theft.
CA Held: This was not theft because all he had taken was the confidential
information that the test contained.
This principle applies to acquiring someone elses bank account details.
S4 (3) It is not theft to steal mushrooms, fruit, foliage or flowers that are
growing wild on any land, unless its for sale or reward. S4 (4) states it is not
theft to steal any animal that is wild or held in captivity unless it is in the
possession of another.
If D does so dishonestly and with an intention to permanently deprive, he
commits theft.
Hinks (2000)
D was a 30 year old woman, who befriended V, a 53 year old man, who had a
low IQ and was described as nave. V was mentally capable of
understanding the ownership and the meaning of a valid gift. Over a period of
8 months, D went with V to his building society, where he took out his life
savings, and put it in Ds account. D was charged with theft and her defence
was that if the gift was valid in civil law (which it was) her appropriation of it
couldnt be theft.
House of Lords Held: By a majority of 3:2 a gift given to someone where
there is no deception can still be an appropriation under the Theft Act 1968.
The House of Lords accepted that 60,000 belonged to D in civil law but that
was irrelevant for the purposes of criminal law. The majority thought D was
dishonest for accepting a gift knowing that V was nave and of low negligence.
This case is controversial because it punishes a D in criminal law for receiving
a gift that was valid in civil law.
GRH Penetration
This case gives the widest possible meaning to appropriation and the effect of
the decision is that it can result in a person being guilty of theft even where D
has received property legally in civil law.
Therefore is it not an offence to kill a wild rabbit and take it home. However it
is theft to steal a wild rabbit that someone else has killed.

S5 Belonging to another
At the time of the appropriation the property must belong to another (i.e. any
person having possession or control of it)
A persons ownership can be overridden by another persons interest in the
property.
Turner (1971)
D left his car for repair at a garage, returning later and taking it from the
forecourt with the intention of not paying the repair bill.
CA Held: The car belonged to D but the garage had enough legal interest in it
to come within the phrase belonging to another.
GRH Dangler
Does the owner of property have to be aware of it?
Woodman (1974)
Xs company owned a derelict site which had lots of scrap metal on it, which
they sold to a company, Y. The deal was that Y could take what they like and
leave the rest. A few years later D went on the property and took the
remaining metal which X didnt know had been left.
CA Held: Once it was established that a person controls a particular site, he is
deemed to own everything on it even though D is unaware of it. Therefore D
was guilty of theft.
This case illustrates the fact that the law hates a vacuum (i.e. there is no such
thing as abandoned property such as householders who put out what they
think is rubbish in the bin are not giving the right to take it) also lost golf balls
still belong to the members of the golf club.

S5 (3) Property received for a particular purpose

The meaning of belonging to another is very restricted and S5 (3) and S594)
give extended meanings to the phrase:
Where a person receives property from another and is under an obligation to
deal with it in a particular way, the property is regarded as still belonging to the
other
S5(3) covers those situation in which D has been given property (usually
money) to use in a particular way 9e.g. to invest or buy something on the
owners behalf)
Under S5(1) D would have the legal title but because of S5(3) he will not and
he is only guilty of theft if he does anything with it which the owner did not
authorise, provided he is dishonest and has an intention to permanently
deprive.
Klineberg and Marsden (1999)
K and M had a company which sold time shares. Each purchaser paid the
price on the understanding that the money would be put in a trust company,
until the apartments were built. Over 500,000 was paid but only 200 went
into the trust.
CA Held: K and M were guilty of theft because they were under an obligation
to deal with the money in a certain way.
Each S5 (3) situation should be dealt with on its facts (i.e. not all situations will
give rise to a criminal, legal relationship)
Hall (1973)
D was a travel agent who received deposits for flights to the USA. He put the
money in his firms general trading account. He arranged no flights nor could
he repay the money because he went bankrupt. There was not fraud when he
took the money and he acted in good faith but he was charged with theft.
CA Held: D was not guilty because there was no dishonesty and he acted in
good faith so he had no special legal relationship with the clients.

A S5 (3) obligation can arise in formal situations

Davage v Burnett (1984)
D was given money by his housemates to pay the bag bill but instead she
used it to buy Christmas presents
CA Held: She was guilty of theft because there was an intention amongst
them that this arrangement would create a legal relationship.
S5 (4) Obtaining property by anothers mistake
Where a person gets property by anothers mistake and is under an obligation
to make restoration of it, it should be regarded as belonging to the person
entitled to restoration and an intention not to will be regarded as an intention
to permanently deprive
However if D gives X a 20 and X gives what he thinks is 10.00 change but it
is in fact two 10 notes stuck together and D decides to keep the extra 10,
he will still be guilty of theft, but not because of S5(4) but because of S5(1)
MR of Theft
This is a concept which applies to all property offences, except Criminal
Damage and blackmail. When Parliament drafted the Theft Act 1968, it
deliberately didnt define dishonestly, believing it should be left to the courts.
To be guilty of theft D must be dishonest. Although dishonestly is defined in
the Theft Act S2 (1) and includes situations in which D is not considered
dishonest.
S2 (1) (a)
A person is not dishonest if he appropriates property believing he has a legal
right to deprive the other of it.
House of Lordsdon (1991)
D took tyres from Kwik-Fit where he worked. He was charged with theft and
his defence was that others had taken them with a superiors permission.
Therefore he thought he was entitled to take them.
CA HELD: he was not dishonest because he honestly believed he was
entitled to take them.

S2 (1) (a) deals with the situation where D takes property mistakenly believing
it to be his own. It doesnt have to be a reasonable mistake, as long as it is
honest.
S2 (1) (b)
D is not dishonest if he believes the owner had consented. To prove this, D
would have to produce some evident to support the view that he had thought
the owner had consented (e.g. they were friends or they had done this before)
S2 (1) (c)
D is not dishonest if he believes the owner couldnt be traced by taking
reasonable steps. This depends upon the nature or the property and the
circumstances in which it was found.
Small (1998)
D was charged with theft of a car. He claimed it had been parked in the same
place for 2 weeks, the doors were unlocked and the keys were in the ignition.
He didnt think he was dishonest in taking the car.
CA HELD: he was not guilty. There was evidence that the car might have
been abandoned which allowed the jury to believe that his belief was not
dishonest.
The Ghosh Test
If D does not come within the three situations in S2 (1) he is not automatically
dishonest. He must satisfy the common law test in:
Ghosh (1982)
D was a doctor acting as a locum in a hospital. He claimed fees for an
operation he had not carried out and said he was not dishonest because he
was owed the same amount for consultation fees.
CA HELD: there was a two part test for dishonesty:
1) Where Ds actions dishonest according the standards of a reasonable
person? And
2) Did D realise that what he was doing was dishonest by those standards?
Question 1 is purely objective and question 2 is subjective but not entirely
because its based on what D believed reasonable standards were. The jury
must reply yes to both questions which are designed to prevent D from

pleading a robin hood defence (i.e. a person cant claim he wasnt dishonest
simply because he believed his actions were morally correct.)
Intention to permanently deprive
When Parliament drafted the Theft Act 1968 it specifically wanted to exclude
unlawful borrowing (i.e. a person isnt guilty of theft if he could prove he
intended to return them. This doesnt involve where D returns property which
is no longer useable.)
DPP v J (2001)
D took and broke Vs headphones and then gave them back.
CA HELD: D had an intention to permanently deprive despite handing them
back.
The same situation applied in:
Velumyl (1989)
D, a company director, took 1050 from a wage and lent it to a friend on
condition that the friend returned it two days later. A spot check was made in
the meantime and D was charged of theft.
CA HELD: D was guilty because he had no intention to return the same bank
notes, only an equivalent amount of money.
An intention to permanently deprive is easier to prove the longer D keeps the
property for or it can depend upon the circumstances in which it was stolen
S6 (1)
This extends the meaning of intending to permanently deprive. It doesnt
define it. Under S6 (1) a person is presumed to have an intention to
permanently deprive if his borrowing of the property amounts to an outright
taking where D has treated himself as the owner of it or has returned it as a
thing of no value.
Lloyd (1985)
D was a cinema projectionist who secretly took films due to be shown at his
cinema, but lent them to X and Y who copied them and returned them to D
within hours. D was charged with theft.
CA HELD: the value of the film to the owner was still there (i.e. they could still
show them to customers)

S6 (1) includes property to which D has treated himself as the owner

Lavender (1994)
D took doors from his owned house and used them to replace his girlfriends
damaged doors in the council flat. D agreed the doors were still in the
possession of the council.
QBD HELD: D intended to treat the doors as if they were his own by
transferring them without permission from the council property to another and
was therefore guilty of theft.
See Also: Marshall (1998)
D obtained travel cards for the London underground from members of the
public and sold them on to others. They were charged with theft. They had 3
arguments:
The tickets belonged to D because the customers had given them to them.
They hadnt used the tickets so there was no appropriation
They didnt have an intention to permanently deprive because the tickets
would find their way back to the underground at the end of the day.
CA HELD:
i.

London Underground still had a proprietary interest in the tickets

(Turner)

ii.

D appropriated the tickets as soon as they took possession of them

(Gomez)

iii.

They did intend to deprive London Underground of the value of the

tickets as represented by the journeys that should have been paid for,
therefore he is guilty.

S6 (2)
This covers the situation where D has borrowed Xs property but loans or
gives it to another on the condition that D may not be able to perform (e.g. D
takes a valuable item he has borrowed from X to a pawn shop and finds he
cant get it back, this is an intention to permanently deprive. (See Velumyl)

Making Off Without Payment

S3 (1) Theft Act 1978
This covers those situations where D lawfully obtains property or is given a
service where he then decides not to pay for. V is usually a business or a
company (e.g. supermarket, garage, hotel, restaurant, hairdressers or taxi
drivers)
S3 (1) states:
A person who, knowing that payment on the spot for any goods supplied or
services done is required or expected from him, dishonestly makes off without
payment of the amount due shall be guilty (2 years imprisonment)
The elements were set out in:
Allen (1985)
D owed 1200 for a stay at a hotel, he left without paying. His defence was
that he genuinely intended to pay in the near future because he expected to
have enough funds to pay them in the future.
House of Lords Held: He was guilty.
The AR of Section 3(1) is:
1. Payment on the spot was required
2. D made off without making payment as required
The MR of Section 3(1) is:
1. D knew payment on the spot was required
2. D was dishonest
3. D intended to avoid payment permanently
D must usually leave the premises or pass some point which payment was
required.
McDavitt (1981)
D refused to pay a restaurant bill and tried to walk out but was told not to
because the police had been called. D locked himself in the toilets until the
police arrived.
CA Held: D wasnt guilty because he hadnt made off.
D must be proved to have known payment on the spot was required.

Vincent (1991)
D stayed in two hotels and had not paid his bills. He said hed arranged with
the owners of each hotel to arrange to pay when he was able to do so.
Therefore he believed payment on the spot was not required.
CA Held: D was not guilty of S3 (1) even though the arrangement hed
entered into was dishonest because this didnt prevent him from believing
payment on the spot was required.
S3 (1) applies to taxi journeys.
Troughton v Met. Police (1987)
D got into a tax and asked to be taken to north London without giving the
precise address. Unable to get the address from D, the driver drove to a police
station.
QBD Held: He has not guilty because the journey had not ended.
Contrast this with:
Aziz (1993)
The taxi reached its destination but D refused to pay 15, the driver decided to
return to the point where he picked D up but en route, he decided to take him
to the police station
CA Held: D was guilty because in this case, the journey had been completed.

Robbery

S8 Theft Act 1968

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
(maximum life imprisonment)
AR of Robbery
1) Steals
The prosecution must first prove the elements of theft. If they fail to do so,
they cannot find D guilty of robbery but may be guilty of some other assault
offence.
Robinson (1977)
D ran a clothing club and was owed 7 by Vs wife. D approached V and
threatened him. There was a struggle and V dropped a 5 note and D took it
and said that he still owed him 2. D was charged with robbery.
CA Held: D was not guilty of robbery because he honestly believed he had a
legal right to take the money under S2 (1) (a) Therefore D is not dishonest,
and there is no theft and no robbery.
If D appropriates the property, he doesnt have to actually get away with it.
Corcoran v Anderton (1980)
D hit a woman in the back and grabbed her handbag. They both tugged at it
and she let go of it and fell to the ground. D ran off without the bag because
the woman was screaming and attracting attention.
QBD Held: This was robbery because it didnt require proof that D had the
handbag simply that D had appropriated it which he had done by tugging at it.

2) Force or the fear of force

There is no firm agreement as to what constitutes as force and it can be quite

minor.
Dawson and James (1976)
D1 and D2 nudged V so that he lost his balance and whilst off balance, D1
stole his wallet. They were charged with robbery.
CA Held: The word force was a question of fact for the jury but it would
certainly include knocking someone off balance.
Clouden (1987)
D wrenched a shopping basket from Vs hand.
CA Held: This is a question of fact for the jury and D was guilty of robbery.
The threat of force is enough which can be by words alone or actions such as
waving a knife. The issue is whether V has been frightened enough to hand
over the property. However in:
B and R v DPP (2007)
V, a 15 year old school boy, was stopped by 5 school boys. They asked V for
his mobile and money and they were then joined by 5 others who surrounded
V. No serious violence was used against him but he was pushed and his arms
were held back whilst he was searched. They took his mobile, 5, his watch
and a travel card. V said that he did not feel particularly threatened or scared,
but he was shocked.
QBD Held: There were guilty of robbery because:
a) There was no need to show that V felt threatened because S8 includes
seeks to put
b) There was an implied threat of force caused by so many surrounding him
c) There was even limited force by House of Lordsding Vs arms and pushing
him.

3) Force immediately before or at the time of the theft

This is a question of fact for the jury as to what constitutes immediately before
(e.g. if V is forced at knife point to hand over his credit card details and pin
number which is not used until 24 hours later, is this robbery?)
What constitutes the point at which the theft is complete?
Hale (1979)
Two Ds knocked at Vs house. When she opened the door, they forced her
into the house. One defendant put his hand over her mouth to stop her
screaming whilst the other went upstairs to see what he could take. He took a
jewellery box and tied her up before they left the house. D appealed on the
grounds that this wasnt robbery because the force (tying V up) occurred after
the appropriation of the box.
CA Held: There was force before the theft (when they pushed her into the
house) and appropriation (of the box) was a continuing act and therefore tying
her up was at the time of the theft.
At the time of the theft can include using force to escape.
Lockley (1995)
D was caught shoplifting cans of beer and used force on the shopkeeper
trying to stop him escaping.
CA Held: D was guilty of robbery because it was still at the time of the theft.
4) In order to steal
The force used must be in order to commit the theft (e.g. D has a fight with V
during which, Vs wallet happens to fall on the floor. D grabs it and runs. This
is not robbery as the force was not used to steal the wallet. However it can still
be theft.)
5) On any person
The force doesnt have to be against the person against whom the offence is
committed (e.g. D could threaten X with a knife to force his wife, V to hand
over her handbag)
MR of Robbery
The prosecution must simply prove the MR of theft together with an intention
to use force to steal.

Burglary
S9 (1) Theft Act 1968
Under S9 (1) there are two separate offences of burglary, and the prosecution
have to identify which one is being charged.
S9 (1) (a)
Burglary can be committed by anyone who enters a building or part of a
building as a trespasser and with intent of causing any offence in Section 9(2)
S9 (2) offences are:
Stealing from the building.
Inflicting GBH on any person therein.
Unlawfully damaging the building or anything therein.
S9 (1) (b)
Burglary may be committed by any person who having entered any building
or part of a building as a trespasser he steals or attempts to steal anything in
the building or that part of it inflicts or attempts to inflict on any person therein
any GBH.
Factors Common to Both Offences
1) Entry
This is not defined in the Act but it means that some part of Ds body must
have crossed the thresHouse of Lordsd.
Collins (1972)
D had been heavily drinking and came across the house of a girl he had lustful
thoughts about. He climbed a ladder and stood naked at the top (with his large
erection glistening in the moonlight). V awoke and presumed him to be her
boyfriend and invited him in. They had ravenous, hot and steamy sex.
Afterwards she realised he wasnt her boyfriend (silly cow). D was charged
with S9 (1) (a) and the only issue was whether he had entered the house as a
trespasser.
CA Held: His conviction was quashed. Ds entry had to be both substantial
and effective

However this was modified in:

Brown (1985)
D who was standing outside a shop was leaning through the open window
rummaging through the goods. He was charged with S9 (1) (a).
CA Held: There was no requirement for the entry to be substantial provided it
was effective.
However contrast this with:
Ryan (1996)
D, a would-be burglar, became stuck in the window of Vs house in the early
hours of the morning. His head and right arm were in the house and the rest
was outside and the fire brigade had to get him out.
CA Held: D was guilty of S9 (1) (a) even though his actions were incapable of
amounting to an effective entry as long as there is enough evidence for the
jury to find that D had entered the building he is guilty.
It would be an entry if D could reach through the window with a fishing rod.
2) As a trespasser
A trespasser is someone who enters anothers property without the owners
consent either knowing the owner would not consent or is reckless to the
fact he may not be consenting. The consent of the owner will not be real if it is
obtained by deception (e.g. pretending to be reading the gas meter or if the
entry was in excess of the permission the owner had given you.)
Smith and Jones (1976)
S and J went to Vs (Ss father) house and in the middle of the night took two
TV sets without Vs permission. V had told S that he would never be a
trespasser in the house and had a general permission to enter.
CA Held: S was guilty of burglary because he had gone into his fathers house
knowing that his father would not have consented to the taking of the TV.
The same would be true if the owner left his key to his house with D asking
him to look after it and he stole things from it (Barker, 1983)
There are many situations where a person enters a building with the owners
permission but commits burglary, if he does it in excess of permission (e.g.
supermarkets, libraries, stately home and then stealing from them.)

3) Building or part of a building

There is no general definition of building in the Theft Act 1968 but it does
include inhabited places such as house boats or caravans. A building should
be a permanent erection and there is a requirement for a roof. It would
therefore exclude a tent or a half built house.
Problems can arise with structures such as port-a-cabins used for storage or
offices.
Contrast these two cases:
B and S v Leathley (1979)
A freezer container has been in the same place for two years, used as
storage, it was on sleepers and had doors and was connected to the power
supply this was a building.
Norfolk Constabulary v Seekins and Gould (1986)
A lorry trailer with wheels was used for storage and connected to a power
supply it was not a building because the wheel meant that it was not a
building.
A part of a building would be where D has permission to be in one part of a
building but not in another (e.g. he is invited to a party in Vs house and is told
not to go into the bedroom, or the staff quarters in a workplace, or in a block of
flats where the owner is allowed in his flat and public areas and not in others.)
Workington (1979)
D went into the counter area in a shop and opened a till. He was charged with
burglary under S9 (1) (a).
CA Held: The counter area was a part of the building customers were not
allowed to go to; therefore he had entered the building with an intention to
steal.

The Two Burglary Offences Separately

S9 (1) (a) Entering with intent
D is guilty if he intends to commit one of the following S9 (2) offences:
1) He intended to steal anything therefore. D doesnt have to intent to steal
anything in particular nor does he actually have to steal anything at all.
He is guilty even though there is nothing in the building to steal he
only has to intent to steal.
2) Intending to inflict GBH. D is only guilty provided there is a clear
intention to inflict GBH, not simply ABH.
3) Intending to commit criminal damage therein. There must be clear
intention when he enters the building to cause criminal damage. If D
enters the building without such an intention and then causes criminal
damage he will not be guilty of S9 (1) (a) or (b) but will be guilty of
causing criminal damage.
S9 (1) (b)
S9 (1) (b) is charged when the relevant guilty intention at the time of entry
cannot be proved. He must as the time of the offence be a trespasser (i.e.
when theft or GBH is committed (which turns D into a trespasser)
D is guilty of S9 (1) (b) includes if D attempts theft or GBH.
How to decide between Sections 9(1) (a) and (b)
The crucial point is what was D intending when D entered the building or a
part of a building. If he does so intending to do any act in S9 (2) D is guilty of
S9 (1) (a) but he is not guilty of S9 (1) (b) unless he actually steals or causes
GBH or attempts either.
Section 10 Theft Act 1968
D is guilty of aggravated burglary if he has with him any firearm, explosive or
weapon including any items of property he picks up in the building to use as a
weapon.

Blackmail
A person is guilty of blackmail if, with a view to a gain himself or another, or
with intent to cause loss to another, he makes unwarranted demands with
menaces
AR of Section 21
Demand
There must be a demand to make V do or stop doing something and it can
take any form written, by words, and email and it can either be explicit or
implied.
Collister and Warhurst (1955)
2 PCs, within Vs hearing, discussed the chances of them dropping a charge
against him in return for money; they did not make a direct demand to him.
CA Held: This was a demand for the purposes of blackmail.
Making a demand with menaces is the AR of the offence once it is made,
the AR is complete (i.e. V does not have to receive it)
Tracey v DPP (1971)
D posted a letter containing a demand with menaces in England, to someone
in Germany.
House of Lords Held: This was blackmail, even though the intended recipient
was not the actual recipient.
With Menaces
This means a serious threat of violence or anything detrimental or unpleasant
Lawrence and Pomroy (1971)
Two Ds had done repairs to Vs house, which V was refusing to pay for, as he
claimed the repairs were poorly done. At Vs house, the Ds asked V to step
outside to sort it out. One of them had a flick knife which meant this was a
demand with menace.
In the case of Clear (1968) - the menace must be of such a nature that the
mind of an ordinary person might be influenced by it so as to accede to it.

Therefore it is not necessary to prove V was actually intimidated if it can be

proved that an ordinary person wouldve been.
Harry (1974)
D was the treasurer of a college rag committee which sent letters to 115 local
shopkeepers asking them to buy a poster for charity. Displaying it meant they
would be immune from rag activities, whatever they may be. Only 5
shopkeepers complained.
QBD Held: As so many were unconcerned, there was no threat that an
ordinary person could feel intimidated by.
Alternatively the menace could be a threat which only intimidates V (e.g. to the
family pet) Garwood (1987)
V doesnt have to give in to the menaces (e.g. if he refuses to pay up and go
to the police)
MR of Section 21
Unwarranted
A demand with menaces is unwarranted unless 2 tests set out in S21 are
satisfied. These are that D has to prove that he believed:
a) He had reasonable grounds for making the demand
b) The use of the menaces was a proper means of reinforcing the demand
Both tests are subjective
Harvey (1981)
D and others paid V 20000 for what V claimed was cannabis. D said it was a
load of wank (wasnt very good) and they wanted their money back. The deal
was illegal so there was legal right for them to recover the money. They
kidnapped V, his wife and children and made threats to rape and murder if the
money was not returned.
CA Held:
1) They accepted that D did believe he had reasonable grounds for making
the demand
2) They could not have believed that threats of murder and rape were proper
means of reinforcing the demand
Therefore they were guilty.

A view to a gain or intend to cause loss

This means that D must intend to make a gain for himself or another or cause
a loss to another.
Under Section 4(2) a gain includes keeping what one has as well as what one
has not got and loss is not getting what one might have got or parting with
what one has.
It can be temporary or permanent loss or gain and it doesnt matter if D
succeeds because he only has to make a demand with a view to a gain or
loss
Loss or gain can have wide meaning
Bevans (1988)
D, who was suffering from severe arthritis pointed a gun at his doctor and
demanded a morphine injection for pain relief.
CA Held: The morphine was property and there was a gain to D and a loss to
V.

Criminal Damage
Criminal Damage Act 1971
The basic offence is in S1 (1) CDA 1971.
A person who, without lawful excuse, destroys or damages any property
belonging to another intending to damage or destroy such as property or
being reckless as to whether any such property is damaged or destroyed,
shall be guilty.
AR of S1 (1) Criminal Damage Act 1971
1) Destroys or damages
This involved some physical impairment or deterioration which can be
perceived it only needs to be slight and doesnt have to be permanent.
Roe v Kingslee (1986)
D smeared mud on the walls of a prison cell.
QBD Held: This could be damage even though it wasnt permanent.
However, it can depend on how easy it is to remove.
A (1978)
A spat on a PCs trench coat.
CA Held: This was not criminal damage because it can be easily removed it
wouldve made a difference if the coat required dry cleaning.
Criminal Damage can include damage which is not perceivable but makes the
property unusable.
Whitely (1991)
D was a computer hacker who interfered with a disc by altering its magnetic
particles, which rendered it useless! His defence was that it wasnt damage
because you couldnt perceive it.
CA Held: D was guilt it was the property that had to be tangible, not the
damage.

2) Property
This is defined in S10 (1) Criminal Damage Act 1971 but this is the same as
S4 (1) Theft Act 1968. Although land cannot be stolen, it can be damaged.
3) Belonging to another
This is the same as S5 (1) Theft Act 1968 and includes a co-owner of property
if he destroyed the co-owned property.
Smith (1974)
D removed some electrical wiring, which he had fitted with the land-lords
consent, in his rented flat. In doing so, he had damaged other fixture he had
installed.
CA Held: These did belong to the landlord; however he wasnt guilty because
he honestly believed they were his.
For the purposes of S1 (1) a person is not guilty if he destroys his own
property.
4) Without lawful excuse
A person can destroy anothers property if he has a lawful excuse (e.g. X
smashes Ys window to rescue Y from certain death) this would be a defence
of necessity of self-defence.
However under S5 (2) Criminal Damage Act 1971 D has a defence if he had
an honest belief that the owner of the property wouldve given consent.
Jaggard v Dickinson (1980)
D entered what she though was her friends house by breaking a window. It
turned out that the house belonged to someone else and her mistake was due
to her intoxication. She was able to prove that she had her friends permission
to treat her house as her own.
CA Held: She was no guilty it was the honesty of her belief that was
important and that could be the result of intoxication, forgetfulness, or
stupidity.
This contradicts OGrady but, like in Richardson and Irwin, D was making a
specific claim (i.e. that she had the owners consent).
If D had claimed that she didnt know what she was doing because she was
drunk, she would be guilty because she would be reckless.

The owner in S5 (2) (a) must be someone capable of giving consent.

Blake v DPP (1993)
D was a vicar who was protesting at the First Gulf War and wrote biblical
quotation with a marker pen on a wall near Parliament. His defence was that
God would have consented.
CA Held: His belief, however honest, that D had consent of God, was never a
lawful excuse.
Section 5(2) (b) Criminal Damage Act 1971
D has a defence where he believes property, either his own or anothers, was
in need of immediate protection.
Hunt (1978)
D helped his wife, who was the warden of old peoples flats, to set fire to some
bedding to draw attention to the fact that the fire alarm was not working.
CA Held: He couldnt have a defence under Section 5 (2) (b) because his act
wasnt done to immediately protect property even though he honestly believed
it would.
The important issue is that the property is in immediate need of protection.
Hill and Hall (1989)
D was arrested outside a US naval base in possession of a hacksaw blade.
She admitted intending to use the blade to cut through the fence because her
nearby house was in immediate need of protection because the US base was
an obvious target for a Soviet nuclear strike.
CA Held: Her act was too remote from the eventual aim of protecting their
homes.

Mens Rea of Section 1 (1) Criminal Damage Act 1971

D must intend to cause criminal damage or be reckless as to causing it.
Recklessness under the Criminal Damage Act 1971 in G and R (2003) in
which the House of Lords said a person is reckless if he has a knowing
disregard of an appreciated and unaccepted risk of causing an injurious result
or deliberate closing of the mind to such a risk

This is known as conscious risk raking and is subjective and therefore D is not
reckless if he honestly did not realise there was a risk because he was, for
example: too young, foolish or mentally ill but it doesnt include an intoxicated
failure (i.e. Criminal Damage is a crime of basic intention (Majewski, 1976)
Aggravated Damage
Section 1(2) Criminal Damage Act 1971
A person who without lawful excuse, destroys or damages property whether
belonging to himself or another:
(a) Intending to destroy or damage such property or being reckless as to
whether the property would be destroyed or damaged, and
(b) Intending by destruction or damage of property to endanger life of another
or being reckless as to whether the life of another would be endangered is
guilty.
Actus Reus of Section 1(2)
This is the same offence as Section 1(1) except Section 1(2) can be
committed in respect to ones own property if D is reckless as to whether any
life is endangered.
1. Danger to Life
This must come from the destruction or damage not from the source from the
damage is caused.

Steer (1987)
D went to Vs house, rang the doorbell to wake him up and when D saw V
moving about he fired a rifle at the window, breaking it. There was no injury to
the occupants. D was charged with Section 1(2).
CA Held: To be guilty under Section 1(2) the criminal damage must endanger
Vs life, not Ds conduct in this case it was the bullet not the broken window
that endangered life.
Contrast this case with:
Webster (1995)
D pushed a heavy stone from a railway bridge onto a passenger train the
passengers were showered with debris.
CA Held: Ds were reckless as to whether lives would be endangered by the
damage caused.
See also:
Warwick (1995)
D threw a brick onto a police car, smashing the rear window and showering
the officers with broken glass.
CA Held: D was guilty of Section 1(2).
These cases are distinguished from Steer (1987) as they are moving vehicles.
2. Endangering Life
Life doesnt actually have to be endangered (i.e. D is guilty if he is reckless as
to whether life is endangered rather than whether it actually is.
Parker (1993)
D set fire to a house in which he was a lodger causing fumes and smoke to
seep into next doors house which was empty at the time. D was charged with
Section 1(2) and he argued that there was no actual endangerment of life to
which he was reckless.
CA Held: D was guilty even though no one could have been harmed.

3. Own Property
The point of Section 1(2) is to punish those who endanger life by destroying or
damaging property it doesnt matter therefore whether the property is his
own or someone elses.
Merrick (1995)
D was employed by X, a houseHouse of Lordsder, to remove an old television
cable. Whilst doing so he left live cable exposed for six minutes. No one was
harmed but he was charged with Section 1(2).
CA Held: He was guilty as would X if he had done it himself.
D might not however have been guilty if he has been installing the cable
because it would be difficult to argue that this would involve the damage
which did occur by the removal of it.
Mens Rea of S1 (2) Criminal Damage Act 1971
This is to have intention or recklessness as to cause damage and intention or
recklessness as to endangering life.
This is where D accidentally creates a dangerous situation and fails to take
reasonable steps to reduce damage (Miller)
Recklessness in criminal damage is subjective (Did D realise the risk? G and
R, 2003)
This was confirmed in:
Cooper (2004)
D lived in a hostel for people needing support for mental illness and set fire to
his mattress and bedding. There was no serious damage and the police asked
him if it crossed his mind if anyone wouldve been hurt, he replied no.
CA Held: He was not guilty because he honestly believed there wasnt a risk
of endangering life, because of his mental illness.
Arson
Under S1 (3) if a person destroys or damages property by fire, he will be
charged with Arson under S1 (1) or S1 (2) Criminal Damage Act 1971
depending on whether life was endangered.

Fraud
Fraud Act 2006
Fraud was recently reformed and made much easier to prosecute. The
prosecution no longer have to prove:
1)
2)
3)
4)

Whether the property obtained belonged to another

Whether anyone was actually deceived
Whether the deception cause the obtaining
That any property was in fact obtained

Under S1 (1) Fraud Act 2006 it is an offence to commit fraud.

There are various ways a person can be guilty of fraud:
S2 Fraud Act 2006 Fraud by false representation
S11 Fraud Act 2006 Obtaining services dishonestly
Fraud by False Representation
D is guilty if he dishonestly makes false representation and intends by doing
so to make a gain for himself or another or cause a loss to another or expose
another to the risk of loss.
Actus Reus
The AR is complete when D makes a false representation
1) Representation
S2 (3) Fraud Act 2006 this states that a representation can be as to or law or
as to the state of mind the person making it, or any other person. For
example:
As to fact my car has only done 20,000 miles whereas; I know its
done 120,000 miles.
As to law I have the legal title to sell the car, knowing I dont.
State of mind A customer says he will pay his meal bill, but he wont.
A representation can be made to a person, or a machine. This under S2 (5)
Theft Act 2006 includes any device or system designed to convey or respond
to or receive a communication with or without human intervention this
includes the internet, ATMs, vending machines and self-service checkouts.

Express Representation
This can be written, spoken or posted on a website and includes showing a
false ID or a false reference.
In recent years this has included phishing, which is an expression of false
representation because D sends an email to a large number of people falsely
representing that he is a bank asking to receiver to give bank or credit card
details.
Implied Representation
There are many ways in which an implied representation can be made by
conduct alone
Barnard (1837)
D went into a shop in Oxford wearing a cap and gown of a member of the
university. He also said he was a member which caused the shopkeeper to
sell him product on credit.
It was held that D was guilty and wouldve been even if said nothing. This is a
case of both express and implied representation.
A more modern example is when a D stands in a street pretending to be
collecting money for charity, and keeping it for himself.
There is no definition of an implied representation in the Fraud Act 2006 but
the Act specifically includes: tendering a credit/debit card implying falsely he
has authority to use it. Whereas it is either a stolen credit card or Ds own, that
has been cancelled.
Lambie (1981)
D had a credit card which had a 200 limit. She exceeded this limit and the
bank wrote to her asking for it back. She agreed but didnt return it and bought
10 of clothes.
House of Lords Held: This was fraud because the card had been withdrawn
from her.

Implied representation includes conduct at restaurants, barbers and brothels.

DPP v Ray (1973)
D went to restaurant with 3 friends, he realised he didnt have enough money
to pay but one of them offered to do so. However, after eating the meal they
decided not to pay and waited for the waiter to go into the kitchen pretending
they hadnt finished and then ran out without paying.
House of Lords Held: Guilty of fraud even though the original representation
was genuine, their pretense at the end of the meal was an implied
representation.
2) False
A representation is false if it is misleading and the person making it knows that
it is or it might be
It doesnt matter if anyone believed D nor does it matter if he gains any
advantage.
There is no definition of misleading in the Fraud Act. However in the White
Paper which preceded the Act, it was defined as not wHouse of Lordse true
and capable of being detriment to the victim.
3) Gain or Loss
D must intent to make a gain for himself or another, or cause anothers loss or
expose another to the risk of it. Gain or loss has the same meaning as in S4
(1) Theft Act 1968 (see blackmail notes)
Mens Rea
Dishonestly
1) This had the same meaning as the Ghost test.
2) Know or Believe D must know that the representation he is making is or
might be untrue or misleading (subjective)
3) Intention to make a gain or a loss its not necessary for the fraud to
succeed D needs only to have intended it.

Obtaining Services Dishonestly

Under S11 (1) a person is guilty of this if he obtains services for himself or
another by:
a) A dishonest act and
b) In breach of S11 (2)
Section 11 (2) states that D is guilty if he obtained services:
a) On the basis that payment will be or has been made for them
b) He obtained them without any payment being made in respect of them or in
full
c) When he obtained them he knows that a part of the payment will not be
made or will not be made in full.
Actus Reus
There must be an act the offence cannot be committed by an omission.
1) Obtains the offence must actually be obtained unlike the offence under
S2 (1).
2) Services these are not defined in the Fraud Act 2006 which only gives
two examples: using false credit card details to obtain an internet service,
climbing a wall to watch a football match without paying, falsely claiming to
be a member of a group entitled to a reduction (e.g. bus pass)
D only has to obtain a service dishonestly (i.e. he doesnt have to necessarily
deceive anyone - such as climbing a wall to watch a football match without
paying). Therefore S11 is not strictly speaking a fraud offence.
3) Not paid for Section 11 is only committed if D doesnt pay in full or in part.
So if he makes a false statement but pays full price he is not guilty.
Mens Rea
1) Dishonestly this is the same as the Ghost Test
2) Intention not to pay therefore D is not guilty if he honestly believes
that someone else has already paid.

Duress
This is a defence whereby a 3rd party or circumstances force D to commit an
offence which he would not have done but for the pressure on him. D claims
that he has committed the AR and MR but claims he has no choice because
he was threatened by serious injury or death.
There are 2 types of duress:
1) Duress by threats
2) Duress of circumstances
Factors common to both defences
1) D must not have a safe avenue of escape
Duress can only be used if D can show he had no opportunity to escape or
raise the alarm (e.g. inform the police)
Gill (1963)
D was charged with stealing a lorry, and claimed he and his wife were
threatened with violence if he didnt.
CA Held: Duress must fail because there was a period of time when he was
left alone and could have raised the alarm.
2) There must be a threat to kill or cause serious harm.
Valderama-vega (1985)
D was charged with smuggling cocaine into the country. His defence was that
he and his family were threatened by death/serious injury and he was
blackmailed about his secret gay life style.
The blackmail was discounted as part of the duress.
3) The threat need only be imminent, not immediate. The threat must be still
be effective at the moment that crime is committed. This doesnt mean the
threat of violence need not be immediate.

Abdul-Hussein (1999)
D and others were Shiite Muslims who had fled to Sudan from Iraq because
of the risk of execution due to their religion. They hijacked a plane which
landed in the UK. The defendants were charged with hijacking and their
defence was duress of circumstances.
CA Held: They were not guilty because the threat didnt have to be immediate
as long as it is imminent.
4) The duress must not be self-induced
This is where D has brought the duress on himself by his own actions (e.g. he
voluntarily joins a criminal gang) and commits some offences willingly but then
is forced to commit crimes that he didnt want to do or he puts himself in a
position knowing he is likely to be subjected to threats of violence
Heath (2000)
D owed money to a drug dealer. He was threatened to help in the supply of
cannabis.
CA Held: He couldnt plead duress because he voluntarily put himself at risk
of threats of violence.
The leading case is: Hassan (2005)
D was associated with a violent drug dealer, X. D was the driver/minder of Xs
bitch, who ran a prostitution ring. X told D to burgle a house and threatened
him that if he didnt, he and his family would be harmed. The burglary failed
and D was convicted of aggravated burglary.
House of Lords Held: D was guilty because the duress was from others
engaged in criminal activity with whom D had voluntarily associated
There were two rules:
a) It doesnt matter whether D himself foresaw the risk of duress it is
enough that he ought to have foreseen the risk (objective test based on a
reasonable persons belief)
b) It doesnt have to be shown that there was a risk that he might be
subjected to threats of violence (whether to commit crimes or not).

Duress by Threats
This is I where a 3rd party threatens D with death or serious injury/violence
unless D commits a specific offence (e.g. D is ordered at gunpoint by armed
robbers to driver away from the scene of a crime)
Graham (1928)
D and X were gay lovers. X forced D to help him strangle V, Ds wife. D
claimed duress on a charge of murder because he was afraid of X.
CA Held: To succeed with duress a person has to prove a 2 point test:
1) Did D honestly and reasonably believe that the 3rd party would carry out the
threat of at least serious harm? This is an objective test and D would have
to produce evidence that the 3rd party was violent or has a history of
violence. It is not enough for D to have an honest belief, it must be
reasonable.
Martin (2000)
D suffered from schizoid disorder which led to him believing things said to
him as threatening and believing they would be carried out. He claimed
that hed been forced to carry out two robberies by 2 men who lived on his
estate. The trial judge said his condition was irrelevant.
CA Held: The jury could take into account any special characteristic of D
which might make him more likely to believe the threat (i.e. duress is
similar to self-defence where D only has to make an honest mistake)
GRH Commentary
This decision may be effected by Hassan, in which the House of Lords said
the belief must be reasonable objective test.
2) The 2nd part of the Graham testis whether a reasonable person would have
succumbed to the threats of a 3rd party. In this test the court is allowed to
take into account Ds characteristics.

The courts went further in:

Bowen (1996)
D had an IQ of 68 who was stopped by 2 men at a pub who told him theyd
petrol bomb his family if he didnt fraudulently obtain goods for him.
CA Held: Ds low IQ was not a relevant characteristic in deciding whether it
affected his ability to resist threats. However the following threats were
relevant:

Sex women would be more likely to succumb to pressure.

Age the very young/old are more susceptible to threats.
Pregnancy there is an additional fear for the safety of an unborn child.
Serious physical disability It makes it more difficult for him to protect
himself
Mental illness this includes any disorder which means that D is
vulnerable to threats.
D can use duress by threats provided hes ordered to commit a specific
offence.
Cole
D claimed that he, his girlfriend and child had been threatened and hit with a
baseball bat to make him pay the money he owed. In order to get the money
he robbed 2 building societies.
CA Held: He was guilty as he hadnt been to commit the robbery and the
duress was self-induced.
This is where D has been forced to commit a crime either by a 3rd party or by
circumstances he finds himself in.
Willer (1986)
D and his passenger were driving down a narrow alley when his car was
surrounded by youths. His only way to escape was to drive on the pavement
at 10mph. he then reported the gang to the police. They charged him with
reckless driving.
CA Held: The jury shouldve been allowed to consider whether D drove under
duress. This is duress of circumstances because the youths werent
threatening him with a driving offence D just felt under a compulsion to do
so.

Initially duress of circumstances was only used for driving offences but now it
covers all crimes.
Pommell
D was found by the police at 8am in bed with a loaded SMG. He said a man
had come into his house at 1am and threatened him with it. He claimed hed
taken it off him and was planning to take it to the police station. He was
charged with possessing a weapon and the trial judge said he shouldve gone
to the police station right away.
CA Held: Quashing his convictions that the defence of Duress or
Circumstances and said the jury should have been asked whether the defence
was available to him.
Duress of Circumstances should not be confused with necessity which only
arises where D feels himself under the pressure to commit an offence but not
by a 3rd party.
The classic case for this is:
Dudley and Stephens (1884)
D and S had been shipwrecked in the Atlantic in a boat with X and a cabin
boy, V. After several days, they decided to kill and eat V as he was the
weakest. Four days passed and they were rescued. They pleaded necessity
and it is difficult to extract principles from the case but it is taken to be the
precedent for the principle of that duress is no defence to murder.
The following case is a modern example of duress by
circumstances/necessity.
Quayle (2006)
This case involves 3 cases relating to the use of cannabis because the 3 Ds
pleaded necessity to medical conditions (Re: amputation, damaged vertebrae
and back injuries). The charges were: importing, growing or supplying. They
said the cannabis was necessary to avoid the pain of injury
1) Necessity is very similar to Duress of Circumstances and Duress by
Threats and the restrictions in Hassan (2006) applied to this defence as
well.
2) The defence was not available in this case because
a) There were clear statutory guidelines laid down for the use of drugs
for medical purposes

b) There was no way in which the pain they were claiming to be in

could be assessed by a judge or jury.
3) This defence and duress should be confined to cases where there is an
imminent danger of physical injury.

Law and Fault

1) The Meaning of Fault

It is a fundamental principle of criminal liability that a person should not be
found and punished without proof of fault. The Concise Oxford Dictionary
defines fault as a thing wrongly done responsibility for someone wrong
and blame. Other dictionaries refer to fault as guilty of error, culpable.
Fault arises from the fact that a person is responsible for his conduct (i.e. able
to take rational decisions, which intern involves the concept of
reasonableness).
GRH Pointer
Candidates must be aware that is isnt enough to say that criminal liability is
based on fault (i.e. there is fault in criminal law but there are also different
degrees of fault and exceptions to it such as crimes of absolute and strict
liability.
2) Fault in Actus Reus
In criminal law in AR fault arises because someone has cause harm by an act
of self will. The greater the harm caused the more the person is at fault (e.g.
murder is more serious than theft.) They are at faulty if the harm caused was
voluntary (Hill v Baxter). D must also have caused the harm which wouldnt
have happened but for his conduct. In some cases he has caused it, (Mitchell)
and some cases he does not (White). When another cause operated the
question is whether Ds actions were substantial. Sometimes they are
(Roberts) and sometime it isnt (Williams).
3) Fault in Mens Rea
MR is a measure of a persons moral blame (i.e. his fault with regard to his
state of mind)
A person who intends the consequence of his actions is most at fault because
he has made a conscious decision to bring about the consequences (Mohan).
A person who obliquely intends the consequences is less at fault because he
didnt take a decision to bring about the consequences but foresaw them as
virtually certain (Woolin).
A person who acts recklessly is even less morally blameworthy because a
person is taking a risk of it being caused (G and R).

Gross Negligence is a lesser blameworthy state than recklessness because a

person is at fault without realising he is taking a risk in the circumstances were
reasonable people would have done.
Finally the least morally blameworthy state of mind is negligence. Where a
person is liable if he simply fails to do something a reasonable person would
do (Blyth v Birmingham Waterworks). It is for this reason that negligence is not
sufficiently blameworthy to amount to a criminal MR. Therefore a negligent
person will rarely be guilty of a crime (unless it is gross negligence) but will be
liable in tort law.
4) Fault and Defences
Criminal defence are denials of fault on the part of D. some of them are total
denial (e.g. insanity as a person is not responsible for his actions and Self
Defence because a person is entitled to defend himself (or others) using
reasonable force.) Some however are only partial defences reducing Ds
criminal liability (e.g. Diminished Responsibility, Loss of Control and Voluntary
Intoxication) for the harm caused. For example, a person that kills someone
through lack of self-control is still partially at fault because they acted
intentionally, but the law lessens his fault by reducing it to manslaughter.
5) Fault and Motive
Criminal liability takes no account of motive (except in the sentence such as a
person who is provoked is less at fault than one who acts in revenge). The
fault requirement of an offence doesnt include the reason why he did it (e.g.
Robin Hood, 1312 would be guilty of theft even though he had a good motive).
This can be seen in the issue of mercy killings where people can commit
homicide by acting from the best possible motive.
Cox (1992)
D, a Dr, injected a terminally ill patient, who was suffering from severe pain,
with a lethal drug after she asked him to end her suffering. D was found guilty
of attempted murder, the jury wept when the verdict was announced. However
the judge could take into account the motive when sentencing a D was given a
suspended sentence (see also the cases of Pretty and Purdy).

6) Fault and Non-Fatal Offences

These offences are very good examples of the way in which there are different
levels of fault from the most at fault (S18) to the least at fault (common law
Assault). They all require proof of fault but S18 is the most serious because it
requires intention only and involves the most serious harm and for the others
less fault is required as they only require proof of recklessness and the
slightest harm (putting someone in fear). However some of these offences has
an MR requirement which equates with the harm caused (assault battery and
S18) whereas some do not (i.e. the Mr requirement is less than the harm
caused the MR of S20 is intention or recklessness as to causing some
harm.)
7) Fault and Sentencing
Judges and Magistrates reflect on the fault when passing sentences. Every
offence has a maximum sentence which reflects how much fault the offence
contains. When passing the sentence, the starting point is known as the tariff,
which is increased or decreased in accordance with Ds level of fault (i.e.
aggravating factors such as the use of a weapon, racially aggravated etc and
Mitigating factors such as cooperating with the police, if D was provoked and
previous good character). These factors can include those that relate to the
offender himself, rather than the nature of his act.
8) Non-fault Criminal Liability
Some offences require no Mens Rea, for at least one elements of the Actus
Reus. They tend to be regulatory offences dealing with matters of social
concern. There are 2 types of such crimes Absolute Liability Offences and
Strict Liability Offences.
Crimes of absolute liability are those where D has no fault in terms of either
MR or AR because the crime doesnt have to be done voluntarily.
Winzar v CC for Kent
D was removed from a hospital for being drunk and put in a police car on the
highway for which he was charged being found drunk on the highway.
Held: He was guilty even though he was there unwillingly.
This offence is a State of Affairs offence as are many Absolute Liability
Offences. The other type of non-fault crime is a Strict Liability Offence for
which there is no fault requirement in terms of MR but the AR must be done
voluntarily - Harrow v BC for Shah in which the Ds willingly sold a lottery
ticket to a boy they didnt know was under 16.

Smedleys v Breed (1974)

A caterpillar was found in a tin of peas and the Ds were convicted under S2
Food and Drugs Act 1955- despite having taken all reasonable steps to
prevent this sort of contamination.
These non-fault offences should be contrasted with one where the offence
began as an SLO but the House of Lords decided to change this. In Sweet v
Parsley, D was charged with being concerned with premises used for the
smoking of cannabis. This was originally an SLO because there were no MR
words. The House of Lords held they converted it to a true crime because the
sentence was 10 years for which proof of fault shouldve been required.
This is part of a trend in which the House of Lords (now Supreme Court) is
adapting a more subjective approach (i.e. looking for fault on part of the
defendant). For example in G and R, 2003, (recklessness and criminal
damage) changed the test from an objective test (would a reasonable person
have realised there was as risk of causing CD) to a subjective test (Did D
foresee the risk of causing CD).
Arguments For and Against Non-Fault Criminal Liability
GRH Pointer
The essay title will ask for a description of the extent to which fault is an
element of criminal liability. The essay should go on to evaluate whether nonfault liability should be imposed.
Arguments in Favour
1) The Public Interest The interests of the public should at times be given
priority at times of an individual in matters such as: food hygiene
(Smedleys v Breed), the welfare of young children (Harrow v BC for Shah)
or safety at work (AG for Hong Kong v Gammon). The public interest is
given precedent over apparently innocent offencerds. These cases accept
that business should accept the risks of their activities particularly since the
penalty imposed is likely to be a fine.
2) Individual Responsibility Some argue that everyone should be
responsible for what they are doing, regardless of their state of mind (i.e.
whether they intended or were reckless as to the consequences). In other
words people should be punished for the consequences of their actions
rather than their state of mind. This works where the consequences are not
serious (i.e. they are more like regulations than true crimes). This argument

is advocated by those who believe that if the main purpose of criminal law
is to prevent one person harming another then SLOs are particularly
effective because it promotes vigilance as there is the possibility that their
conduct may be harmful (e.g. a butcher selling meat to the public could
potentially cause widespread harm unless the law required him to satisfy
the highest standards of health and safety)
3) A Deterrence
1) Rejection of arguments in favour
a) It is untrue that SLOs are only punishable by fines
Howells (1977)
D bought a revolver believing it to be an antique for which no licence is
required under the Firearms Act 1968. It turned out to be a fake, for which he
required a licence. This was an SLO and he appealed on the grounds that he
honestly believed the gun was an antique.
Held: His belief was irrelevant because it was an SLO but the potential penalty
was 5 years imprisonment.
b) How can non-fault liability encouraged higher standards when, for
instance the butcher in Kellow v Tillstone (1900) could not have done
anything else to ensure that his meat was fit for consumption, than
what he did (i.e. it had been certified by a registered inspector)
2) Justice
i)
It is a fundamental principle of criminal liability that a person should
not be found guilty and punished without proof of fault on his part. A
guilty verdict will result in the imposition of a sentence of D which
may affect his liberty, reputation or his opportunities for the rest of his
life (e.g. a butcher who is prosecuted for selling unfit meat will be
formally punished (a fine), and would be punished informally (loss of
future business) and he will also have a criminal record.)
The courts regard this principle of no liability without proof of fault as being
so important that judged have imposed MR on offences which they think
are too serious to be SLOs (Sweet v Parsley where the House of Lords
imposed the MR of knowingly on an offence which carried a 10 year
imprisonment)
Alternatively, see the case of Stockwain (1986)

D, a pharmacist was convicted of being in possession of drugs under the

Medicine Act 1968 even though he had been supplied them by X, who had
fraudulently signed the papers. Therefore D was guilty through no fault of
his own.
ii)

This case illustrated how is it indefensible to convict people for the

unforeseen, or even unforeseeable, consequences. D in Stockwain
could not have done anything to prevent him himself from being
guilty.

iii)

If the law is intended to serve as a guide to behaviour HOW can

this apply where it is impossible to modify ones behaviour in order to
avoid committing an offence? The butcher in Callow v Tillstone
(1900) could not have done anything more than have it verified meat
man.

iv)

Confidence and respect in the system of justice is impaired when

blameless people are held responsible under the law.

v)

Criminal law is based on the notion of individual responsibility (i.e.

individuals choose to behave the way they do. For example by being
careful and reasonable). It is not just that individuals who have made
the choice to exercise more care should pay for the harm caused by
those who had taken less care. It is also unfair to punish an
individual for harm caused by accident where being more careful
would not have prevented the harm. It is not possible for a blameless
person to be more careful

Judicial Creativity
GRH Helpful Hint
This topic is concerned with whether judges make law (i.e. are they creative)
and if so, to what extent do they do so and should they do so?

There is a basic constitutional principle that Parliament make law and that
judges declare it through Statutory Interpretation (SI) and Judicial Precedent
(JP). This is known as the Declaratory Theory of judicial law making which
includes the notion that it is a misuse of judicial authority if judges make law.
When this occurs judges are said to be creative if they either avoid following
precedent or go beyond giving words in a statute in their literal meaning, this
is also known as the courts making policy decisions (i.e. ones that are not
based on legal logic)
Judicial Precedent limits Judicial Creativity
1) Stare Decisis
This principle means that the courts should stand by what has been
passed by Parliament. It operated in the hierarchical structure of the courts
lower courts being bound by higher ones and by treating like cases alike.
This is done by following the binding part of a judgment (Ratio Decidendi).
For example in Donahue v Stevenson the ratio of this case which had to be
following in all subsequent cases with similar facts was the manufacturers
owe a duty of care to the consumers of the product (Neighbour principle).
2) The courts depend upon cases brought to them
Judges cannot create law except when dealing with a case before them and it
may be sometime before they have a chance to change a verdict (R in
which the ban on marital rape was finally lifted by the House of Lords,
overruling centuries of law.
3) Retrospectively
Case law unlike statute law is retrospective it applies to events that have
already occurred and effects people who have already made choices based
on their correct understatement of the law at the time. The only argument
against the decision in R was by not committing an offence when he tried to
rape his wife - This argument is often the reason for judges not to make law.

Judicial Precedent Allows for Judicial Creativity

1) Distinguishing
Judges can avoid following precedent by finding that the case facts they are
dealing with are materially different from the precedent. In Balfour v Balfour

(1919) and Merritt v Merritt (1970) the issue was the enforceability of a
maintenance agreement between husband and wife.
2) The practice Direction 1966
Using this, the Supreme Court has the freedom to create law by departing its
own decision. As in BRB v Herrington (1972) overruled Addie v Dunbreck and
changed the law by deciding the occupiers of land owed a duty of care to the
child trespassers.
3) Dissenting judgement
Judges in appeal cases may disagree with the majority judgement and may
deliver a dissenting judgement. These are persuasive authority which may be
followed in future cases and sometimes new areas of law have been
developed from these judgments (Denning in Candler v Crane Christmas
1951) His dissenting judgement formed the basis of the later House of Lords
decision in Hedley Byrne v Heller 1964.
4) Obiter Dicta
These are not binding, but persuasive parts of a judgement and could become
part of the RD of the case (Hill v Baxter 1958)
How far can judges go to display creativity in statutory interpretation?
1) Judges are creative because of the range of approaches available to them.
The rules of Statutory Interpretation range from the least creative (literal
rule) through the golden rule, and the mischief rule and the most creative,
the purposive approach. Some judges feel bound by the literal rule and will
not be creative even when common sense demands it Fisher v Bell
(1961) had they chosen any of the other rules they wouldve broadened the
application of the Act and D wouldve been rightly found guilty. Therefore
choosing any of these approaches is in itself an act of judicial creativity.

2) Judges often create law when they interpret statutes.

Judges can be creative in that they broaden or narrow the application of
a statute (e.g. in Smith v Hughes the courts broadened the effect of the
Street Offences Act 1958 by not limiting it to situations where the whore
was actually in the street provided she could be seen from it (see
Mischief rule).

3) Judges create law when they update a statute.

Sometimes judges are forced to create a legal rule. When theyre forced with
a statute in which Parliament could not have envisaged a particular alteration
arising (e.g. in the RCN v DHSS 1981 the House of Lords decided the phrase
registered practitioners under the Abortion Act 1968 should include nurses
because the procedure was no longer only surgical.
Also in Fitzpatrick v Sterling HA (1999) the House of Lords held family
member; for the purposes of the Housing Act 1988 should include long term
same sex relationship as regards taking over a tenancy, they were making law
because the 1988 Parliament couldnt have foreseen that this would be a
social issue. The House of Lords could have taken the same view as the CA
that Parliament in 1988 would have intended that.
The Balance between Parliament and the Judiciary
1) Constitutional Position of Parliament to make law and as stated by
Lord Radcliffe it is unacceptable that there should be two sources of
law making at the same time. Parliament is democratically elected
and the legislation program is influenced by the fact that it is given a
mandate to the Government to implement its manifesto. However,
judges are not elected and do not represent the population they
serve. However, this constitutional arrangement has been affected
by the Human Rights Act 1988 which has given judges greater
power to create law
Constitutionally, it is the role
JUDICIAL CREATIVITY
Also in Gillick v West Norfolk HA the House of Lords would have little idea of
how many teenage girls would be affected by their decision (I.e. how many
would be having underage sex?) However, if Parliament had legislated on this
issue they would have researched the prevalence of underage sex and what
effect a change in the law would have on it.
d) A good example of the way in which JC could lead to confusion is in the
case by case development of involuntary manslaughter, in particular whether
gross negligence includes subjective recklessness and the contrast with
voluntary manslaughter the rules of which, are now laid out clearly in CAJA
2009.

e) Judges can only deal in with cases come before them and therefore legal
development is patchy, random and long overdue, R (1991) and also the
development of foresight of virtual certainty in murder, which includes the
conflicting cases of Woolin, Matthews and Alleyne and Nedrick.
f) Judicial Creativity can also allows judges to make hasty decisions which
they later regret
Re S (1996)
The CA heard an application from a hospital who sought permission to
perform a c-section on a heavily pregnant woman against her wishes.
CA Held: Her wishes were paramount and rejected the application.
However in future cases, the CA expressed the view that her decision was
bizarre and unreasonable.

Law and Morality

This topic is concerned with the connection between law and morality and the
candidate is required to: Explain what is meant by legal rules, moral rules, and the differences
between them.

 Explain the extent to which society tried to enforce moral values through
the law.
Explain whether the law should enforce morality and why is remains a
controversial issue.
Definition of Terms
Characteristics of Legal Rules
1) The compliance with legal rules is compulsory they are imposed on all
members of society (e.g. everyone is bound by OATPA 1861; it doesnt
apply to some people and not to others)
2) Breach of legal rules result in State sanctions and procedures - if a
person is found guilty of an OATPA 1861 offence he will be arrested,
charged, and prosecuted through the criminal courts. If found guilty a
criminal sanction (e.g. a fine, period of detention) may be imposed.
3) Legal rules are made and take effect at a precise time and can be
changed quickly- a precedent is created as soon as the judgment of a
case is made and applied immediately. A statute will take effect on a
specified commencement da
4) Legal rules are facts they exist in actual judgments and in particular
statutes.

Characteristics and Moral Rules

1) Compliance with moral rules is voluntary people have a choice as to
whether they obey them or not. They decide for themselves what is moral
and what is immoral.
2) The moral duties of individual what one person considers immoral,
another might not (e.g. sex before marriage)

3) Moral rules are enforced informally usually through social or domestic

pressures. A person who repeatedly tells lie or breaks promises may be
shunned by friends, family or work colleagues.
4) Moral rules develop gradually over long periods of time they often stem
from religious rules made 1000s of years ago. Over long periods, conduct
once considered immoral can increasingly become acceptable (e.g.
homosexuality). Alternatively some things which were acceptable become
less so (e.g. racism)
5) Morals are not facts they are opinions and are therefore subjective
The Distinction between Moral and Legal Rules
Distinctions can be made between moral and legal rules and it is useful to
consider those identified by professor Hart, professor of Juris Prudence at
Oxford:
1) If there is a disagreement regarding the content of a legal rule then it can
be referenced to a statute or precedent - Whether or not they agree with a
legal rule; they will have to accept what it is. This is not the case with moral
rules.
2) Legal rules can be changed instantly whereas moral rules change
gradually the legal rules regarding homosexuality where instantly
changed when the Sexual Offences Act 1967 was passed allowing
consensual sex between men over 21 in private. However, societys moral
acceptance of homosexuality underwent and continues to undergo gradual
change
3) Legal rules have formal sanctions and procedures moral rules however
are enforced through social pressure.
4) Legal rules continue to exist regardless of whether there is public
acceptance of them and even if there is social pressure to ignore them
(e.g. underage drinking or the smoking of cannabis). Moral rules cease to
exist when there is no social pressure to obey them (sex before marriage,
children born out of wedlock)
5) Legal can impose strict liability (i.e. they can exist without a moral element,
such as parking on double yellow lines). However this is not the case with
moral rules.

Professor Hart is what it known as a legal positivist, which means that a legal
rule is valid provided it is made by the legislative power of the state,
regardless of its content. There is no necessary connection between law and
morality (i.e. a morally repugnant law is still legally valid, such as Apartheid
laws in South Africa.)
It does not mean we have to obey laws which are morally repugnant because
that is a matter of personal conscience.
The Coincidence of Law and Morality
Modern society is made up of different moral beliefs and values and is known
as a pluralistic society. Societies like this come to an agreement of what
beliefs are generally shared and this is called consensus which is heavily
influenced by religion. Murder, rape, theft, and ferret buggering are all immoral
to the extent that society feels they are able to make them criminal offences.
The criminal law is the method in which society imposes its moral values. the
problem for society is not in enforcing the moral consensus (oh no) but as
regards what happens when there is no moral consensus

Gilick v West Norfolk HA (1986)

Mrs G objected to advice given by the DHSS that doctors could give (head.)
contraceptive advice to girls under the age of 16 without parental consent.
She argued that the advice given was unlawful because it incited underage
sex which was both immoral and criminal. Mrs G lost in the QBD (in extra
time), won unanimously in the CA and then lost in the House of Lords (on
aggregate) by 3-2.
House of Lords Held: the advice would be lawful if its given to girls under 16
who are mature enough to understand it. The House of Lords didnt base its
decision on moral grounds because it believed that underage sex was morally

wrong but they took the pragmatic (i.e. teenage girls would have sex underage
anyway (schlaaaags) therefore allowing doctors to give advice reduces the
greater moral harm of an unwanted pregnancy and the spread of STDs.
Although this case involved an important moral issue the House of Lords did
not take (it up the arse) a moral stance they believed the best place to decide
such moral issues is Parliament. This is the opposite of what the House of
Lords did in Brown (1994). The fact that the CA, House of Lords and the QBD
where in disagreement was a reflection of how little moral consensus there
was on the issue.
The close connection between societys morality and its law
1) Long established legal rules are influenced by morality
Some of our most long-established laws have a moral foundation (e.g. murder
and theft can be traced to the Ten Commandments)
2) Public morality can influence judicial change
For example, in criminal law, the decision in R (1991) was influenced by the
moral rule that a husband should not be able for force his wife to have sexual
intercourse but the law prior to this case had also been representative of the
moral beliefs which prevailed until the second part of the 20th century (i.e. that
women were merely the property of their husbands). The decision in Brown
(1994) was influenced by the House of Lords moral belief that masochistic
activities for sexual pleasure were morally unacceptable even if they were
between consenting adults in private.
In civil law, Lord Denning in the High Trees case 1947 created the remedy of
promissory estoppel. This remedy prevented a person going back on a
promise made thereby enshrining in law a good moral principle
3) Public morality may influence legislative reforms
The major reforms of the 1960s to do with: abortion, homosexuality and
sexual/racial discrimination reflect the more permissive moral views of the
decade. Abortion was legislated by the Abortion Act 1967, Homosexuality was
legislated with the Sex Offences Act 1967, racial discrimination legislated with
the Race Relations Act 1965 and Sexual discrimination with the Equal Pay Act
1970.
As public morality has changed towards a greater acceptance of
homosexuality, the law has followed by reducing the age of consent to 16 in

December 2000 and since then; Parliament has introduced Civil Partnerships,
and more recently Gay Marriage.
4) Public morality may be influenced by law reform
Some legislation is introduced with the aim of educating the public to consider
certain matters that are morally wrong in 1965 the Government issued the first
Race Relations Act when race related issues were more prevalent than they
are today. It was designed to criminalise racism in the workplace and by doing
so, it attempted to change moral attitudes however it is arguable whether
legislation alone can ever change moral attitudes but racism is less of an
issue than it was in the 1960s.