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Companion Website
Blackstone's Criminal Practice 2007
Part A
Updates to Part A
- A2.8 Wilfully - November 2006
- A3.10 Intoxication: Specific and Basic Intent - March 2007
- A3.12 Insanity - August 2007
- A3.18 Insanity - August 2007
- A3.24 Duress: Excluded Offences and Persons: Murder - June 2007
- A3.28 Duress of Circumstances - December 2006
- A3.30 Self-defence Prevention of Crime and Related Defences - August 2006
- A3.38 Infancy - May 2007
- A3.38 Infancy - August 2007
- A4.2 Tests for Strict Liability - November 2006
- A4.3 Defences-Strict Liability - 23 October 2006
- A5.5 Scope of the Joint Venture - March 2007
- A5.5 Scope of the Joint Venture - April 2007
- A5.17 Corporate Liability - August 2007
- A6.3 Incitement - Jurisdiction - 13 August 2006
- A6.13 Conspiracy: Sentencing - June 2007
- A6.25 Conspiracy to Defraud - April 2007
- A6.34 Attempt: Actus Reus - December 2006
- A7.28 Relevance of Strasbourg Jurisprudence - July 2007
- A7.29 Public Authorities - July 2007
- A8.16 Terrorist Offences - June 2007
A2.8 Wilfully
Sheppard [1980] 3 All ER 899 was considered in W [2006] All ER (D) 194 (Oct). The court considered it to be settled law that 'wilfully' in the Children and Young Persons Act 1933, s. 1(1) was a word that carried a pejorative meaning. The primary meaning of 'wilful' was 'deliberate' but it may also include recklessness. Thus, a parent who knows that his child needs medical care, but deliberately refrains from obtaining it, acts wilfully in this sense. A parent who fails to provide necessary medical care for his child because he does not care whether it is needed will equally be guilty. But if a parent, whether through personal inadequacy or stupidity or both, genuinely fails to appreciate that his child needs medical care, then the parent does not act wilfully and is not guilty.
Author: MH
A3.10 Intoxication: Specific and Basic Intent
In Heard [2007] EWCA Crim 125, the Court of Appeal has reconsidered, obiter, the problematic distinction between basic and specific intent. On that issue, DPP v Majewski [1977] AC 443 remains open to various interpretations, one of which defines a crime of basic intent as one that does not require proof of intent at all. If recklessness, negligence or maliciousness suffices, and intent or knowledge need not be established, then the crime is one of basic intent. But if intent or knowledge must be proved in respect of any element(s) of the crime, it is (in respect of that element) a crime of specific intent, even if it remains a crime of basic intent in respect of other elements that do not require intent.
This interpretation gains weighty support from Lord Diplock's speech in Caldwell and this support is not necessarily invalidated by the subsequent demise of 'Caldwell recklessness'. It also has the merit of simplicity.
In Heard, however, the court prefers a more complex and elusive test derived, via Lord Simon's speech in Majewski, from Fauteux J's judgment in George (1960) 128 Can CC 289, according to which:
Crimes of specific intent are those where the offence requires proof of purpose or consequence, which are not confined to, but amongst which are included, those where the purpose goes beyond the actus reus (sometimes referred to as cases of ulterior intent) . . .
In considering the question of mens rea, a distinction is to be made between (i) intention as applied to acts considered in relation to their purposes and (ii) intention as applied to acts apart from their purposes. A general intent attending the commission of an act is, in some cases, the only intent required to constitute the crime while, in others, there must be, in addition to that general intent, a specific intent attending the purpose for the commission of the act.
It may, with respect, be far from easy to draw distinctions of this kind. Murder does not necessarily require any purposive intent, but is known to be a crime of specific intent, whereas rape, that clearly does require purpose, is said in Heard to remain a crime of basic intent. The court meanwhile suggests that arson or criminal damage under the Criminal Damage Act 1971, s. 1(2), is a crime of specific intent, even if D is accused only of reckless damage coupled with recklessness as to the possible endangerment of life.
The court does however recognise that an offence may require basic intent as to one element but specific intent as to another. In a case of criminal damage, inability to appreciate the danger posed by an act of vandalism might therefore save D from conviction under s. 1(2), although voluntary intoxication cannot save him from conviction under s. 1(1).
This is not the only controversial aspect of the judgment in Heard. Although it is well established that voluntary intoxication cannot ordinarily support a denial of mens rea (or a defence of automatism) in respect of a crime of basic intent, the court draws a distinction between drunken confusion (where D does not appreciate the true nature of his actions) and a drunken accident, in which there may be no intent (or recklessness?) of any kind. Mere accidents are said to fall outside the scope of the Majewski principle.
This however is also problematic, because an accident may itself result from an earlier deliberate act. In Brady [2006] EWCA Crim 2413, D, who had spent the evening drinking at a nightclub, hoisted himself up onto the railings of a gallery overlooking the dance-floor. He then fell onto V causing her serious injury. On a charge of maliciously inflicting grievous bodily harm (a crime of basic intent) the Court of Appeal opined (obiter) at [25]:
It may have been open to the jury in this case to convict [D] on the basis of his own account. We say that for this reason: arguably, there was here evidence of 'deliberate non-accidental conduct on the part of the accused that inflicted grievous bodily harm' in that [D] deliberately perched, precariously as it turned out, on a low railing, above a crowded dance floor and having consumed considerable quantities of alcohol and drugs. This deliberate act, on any view, led almost immediately and directly to the fall over the railing and to the infliction of grievous bodily harm. It was a substantial cause of the infliction of those injuries.
Author: MH
A3.12 Insanity
Horseferry Road Magistrates' Court, ex parte KL [1997] QB 23 was applied in R (Singh) v Stratford Magistrates' Court [2007] EWHC 1582 (Admin). For other aspects of that case, see D19.39.
Author: MH
A3.18 Insanity
Windle [1952] 2 QB 826 was followed, and the discussion of it in Blackstone's Criminal Practice approved, in Johnson [2007] EWCA Crim 1978. The basis of the application made on D's behalf in this case was that on a proper reading of the M'Naghten Rules he was entitled to a verdict of insanity if the jury concluded that, even though he knew that what he did was wrong as a matter of law, nonetheless, he did not consider that what he did was morally wrong, because on the basis of his mental condition he felt that there was a moral justification for doing what he did.
That submission would have required the Court of Appeal to reject Windle and follow instead the ruling of the High Court of Australia in Stapleton (1952) 86 CLR 358. The Court of Appeal declined to to this. The law as stated in Windle was unequivocal and had not, so far as their lordships were aware, been doubted in the Court of Appeal. Counsel was however invited to draft a possible question or questions for the court to certify, so that the House of Lords might determine whether it wants to revisit the M'Naghten Rules on that issue.
Author: MH
A3.24 Duress: Excluded Offences and Persons: Murder
Wilson (2007) The Times, 6 June 2007 illustrates the well-established principle that duress cannot be a defence to a charge of murder, even if the person seeking to rely on that defence is a child and even if his alleged role in the murder was that of a minor secondary party acting out of fear of an adult perpetrator. The 13-year-old defendant in this case was not able to plead duress, but argued instead that he had not known what he was doing in that his mind did not go with his actions. His police interview did not support this defence, but suggested that he acted under duress from his father- the very defence he was precluded from running. Whether a defence of duress would have been accepted had the alleged offence been something other than murder remains a matter for speculation.
The Court of Appeal observed in Wilson that there 'might be grounds for criticising' a rule that denied a child any defence to a charge of murder on the grounds of adult or parental duress, but had no choice but to apply the law as it stood. More extreme cases can easily be imagined: if for example a 10-year-old child's father has been so provoked by his wife's behaviour that he is determined to kill her, and holds a knife to his child's throat in order to find out where his wife is hiding, the child may become guilty of murder if she betrays her mother's hiding place. She can have no defence of duress if her father then finds and kills her mother, despite her very limited role in the crime, whereas the father himself may well have a partial defence of provocation. With respect, a law that allows a loss of temper to be a partial excuse but makes no allowance for a child who acts under extreme duress cannot seriously be defended.
Author: MH
A3.28 Duress of Circumstances
Mullally [2006] All ER (D) 49 (Nov) confirms that a defence of duress of circumstances raised by a motorist on a charge of drink-driving contrary to the Road Traffic Act 1988, s. 5(1)(a) must fail where she continued to drive even after she had been informed that police had arrived to deal with the threat of violence from which she had initially driven away to escape.
Author: MH
A3.30 Self-defence Prevention of Crime and Related Defences
In Ashley and others v Chief Constable of Sussex Police [2006] EWCA Civ 1085, the Court of Appeal provides an interesting analysis of the differences between self-defence etc when used as a defence to a criminal charge and self-defence when used as a defence in civil proceedings. The use of reasonable force in actual self-defence is clearly lawful, but in cases of mistaken self-defence an honest but unreasonable mistake may operate as a defence only in criminal proceedings. In civil proceedings, a mistaken view of the facts provides no defence in the absence of reasonable grounds for that mistake. The burden of proof also differs. In criminal proceedings, the burden of negativing self-defence is on the prosecution; but in civil proceedings the burden is on the defendant to establish that he acted in reasonable self-defence.
In both criminal and civil proceedings, the type of action taken (or degree of force used) in self-defence must objectively be reasonable but, in judging what was reasonable, the court must in either case have regard to all the circumstances, including the fact that the action may have been taken in the heat of the moment (cf Lord Morris's famous dictum in Palmer v R (cited in the main text at A3.35)
Author: MH
A3.38 Infancy
In CPS v P [2007] EWHC 946 (Admin) the Divisional Court considered whether, despite the abolition by the Crime and Disorder Act 1998, s. 34, of the presumption of doli incapax in the case of children aged between 10 and 14, it remains open to the defence to prove that a particular child was in fact doli incapax: i.e. that even if he acted with the mens rea required for the offence he did not appreciate the criminality or serious wrongfulness of his behaviour.
The view adopted in Blackstone's Criminal Practice is that the defence was wholly abolished by s. 34, and it is pointed out that the government rejected a proposed amendment that would expressly have preserved the defence without the presumption.
In CPS v P, however, Smith LJ considered that there are conflicting indications as to what was Parliament's intent, and her provisional conclusion (obiter, and not fully supported by Gross J) was that the basic defence remains intact. She said (at [46] to [47]):
It appears to me that the effect of s. 34 is to abolish the presumption that a child is doli incapax but not the defence itself. Although I accept that there may not in the past have been any clear recognition that the defence existed separately from the presumption by which it was applied, it seems to me that the defence must be capable of existing without being attached to the presumption. The two are distinct concepts. The defence is 'I did not know that this act was seriously wrong'. The practical problems arose because this was presumed to apply in every case of a child of 10 but under 14 and extraneous evidence had to be called to rebut the presumption. If the presumption is removed, I would have thought that there remains a perfectly workable defence. I stress that in making these observations, I am drawing attention to the potential strength of the argument and the need for this issue to be authoritatively determined, after full argument, in a case in which it is properly raised.
If the defence remains available, I would think that there would have to be an evidential burden on the defence to raise the issue. If that were done, where would the burden of proof lie? And what would be the standard of proof? . . .
Here again, my observations are necessarily obiter but it appears to me that, as the defence of doli incapax would be a common law defence as opposed to a statutory one, as a matter of general principle the burden should remain on the Crown to prove that the child had the requisite understanding. Moreover, the standard of proof should be the usual criminal standard.'
These dicta from CPS v P clearly do not decide the point, which will surely come before the courts again before long. One objection to the continued existence of the rule is that incapacity of this kind is not dependent on age. A handicapped 17-year-old may have less understanding of right and wrong than a less handicapped 12-year-old. But as Smith LJ conceded at [48], there may be other ways of dealing with such cases:
There is a large measure of overlap between the issues of "sufficient understanding of right from wrong", "fitness to plead", "ability to participate effectively in a trial" and "the fairness of the trial". For that reason, my observations about the availability of the defence of doli incapax may have but little impact on the conduct of cases in future. A child who, due to immaturity or lack of understanding, does not know that what is alleged against him is seriously wrong may well also, for the same reasons, be unable to participate effectively in a trial. . ."
As to fitness to plead and related issues, see D19.39.
Author: MH
A3.38 Infancy
It may be appropriate to note in this context an observation by by Hughes LJ at the conclusion of his judgment in DPP v R [2007] EWHC 1842 (Admin), in which a mentally handicapped boy of 13 was charged with but acquitted of a relatively minor sexual assault against a similarly handicapped girl of the same age:
. . .where very young, or very handicapped, children are concerned there may often be better ways of dealing with inappropriate behaviour than the full panoply of a criminal trial. Even where the complaint is of sexual misbehaviour it ought not to be thought that it is invariably in the public interest for it to be investigated by means of a criminal trial, rather than by inter-disciplinary action and co-operation between those who are experienced in dealing with children of this age and handicap.
Author: MH
A4.2 Tests for Strict Liability
The general principles governing the identification of offences of strict liability were examined by the Courts-Martial Appeals Court in Jackson [2006] EWCA Crim 2380, in which the court upheld the appellant's conviction for an offence of unlawful low flying, contrary to the Air Force Act 1951, s. 51, which provides:
'Any person subject to air-force law who, being the pilot of one of Her Majesty's aircraft, flies it at a height less than such height as may be provided by any regulations issued under the authority of the Defence Council . . . except (a) while taking off or alighting, or (b) in such other circumstances as may be so provided, shall, on conviction by court-martial, be liable to imprisonment for a term not exceeding two years or any less punishment provided by this Act'.
The appellant, an RAF officer, struck a floodlight tower with his Jaguar aircraft when making an illegal low altitude 'farewell pass' over the airfield at RAF Akrotiri in Cyprus. He pleaded guilty to another charge involving negligence, but in respect of the low flying offence he argued that his altimeter had been faulty, and that mens rea ought to have been considered an essential element of the offence, particularly given that it carried a potential sentence of two years' imprisonment.
Rejecting this argument, the court fully agreed with the following observations of the judge-advocate at the trial:
it created an offence of Low Flying which was an offence of strict liability.
- Low flying creates a serious hazard and risk of serious danger to person and property and one where the strictest possible standards must be imposed to ensure the avoidance of such danger occurring.
- When Parliament legislated in the field of civil aviation some years after the enactment of the Air Force Act 1955
The court then emphasised the importance of Newton hearings or other methods by which a court may determine the actual level of a defendant's culpability. Recently the Court of Appeal has addressed similar issues rising out of the Sexual Offences Act 2003. See G [2006] EWCA Crim 821 and the cases there discussed.
Author: MH
A4.3 Defences-Strict Liability
In Reg. v. Nicholson, [2006] 1 WLR 2857; [2006] EWCA Crim 1518 the Court considers the meaning of "without reasonable excuse" as a defence to breach of an ASBO as to which see CDA 1998 s. 1(10). The appellant, an animal rights protester, was present within 500 metres of premises (Halifax House where Oxford was proposing to construct a laboratory) specified in the ASBO. Her proposed defence was that she had a reasonable excuse for breaching the ASBPO because she had no recollection of ever having heard, before or at the demonstration, of Halifax House as the address of the proposed laboratory. The trial judge, in a preliminary ruling, ruled that the offence was one of strict liability and that the qualification of "reasonable excuse" should be narrowly construed so as to exclude ignorance, or forgetfulness, and, seemingly, misunderstanding of the clear terms of the order. The appellant then pleaded guilty and now appealed.
The Court holds that in this context a claim of reasonable excuse based upon forgetfulness, or misunderstanding of the terms of an ASBO combined with a lack of appreciation where the subject was at the given time may be capable of constituting a defence of reasonable excuse. The judge should have left the issue to the jury. There is a danger that a defendant may seek to set up a false excuse, but the issues surrounding such a claim are likely to be fact sensitive and appropriate to be decided by a jury. In reaching its conclusion the Court declines to apply decisions restricting reasonable excuse in cases of possession of an offensive weapon in a public place noting that there the Court must be sure that a defendant is knowingly in possession of the article. In other words, construction of a statutory defence depends upon context and one cannot necessarily read across the same construction of the statutory defence from one context to another, rather different, context.. The Court, furthermore, holds that the characterisation of such an offence as breach of an ASBO as one of strict liability does not help in considering whether and how such a defence may be employed in individual cases: Reg. v. Wang, [2005] 1 WLR 661 appl'd; Reg. v. Jolie, [2004] 1 Cr App R 44 and other cases dist'd.
Author: LL
A5.5 Scope of the Joint VentureM
The authorities on joint enterprise, including Powell, English [1999] 1 AC 1, were reviewed by the Court of Appeal in Rahman [2007] EWCA Crim 342. The court noted the difficulties that may arise where one person in a group or gang of attackers has struck a fatal blow, and where although the defendants may each be identified as members of that gang or group, none can be identified as the actual perpetrator. A defendant who agreed to the killing or who knew what the perpetrator was likely to do may still be guilty of murder, even if he did not personally intend or desire the killing, but one who did not foresee what would or might happen cannot be guilty even of manslaughter. Even where a given defendant personally intended or foresaw that serious injury would be inflicted, he will not be guilty of murder if another attacker killed by means of a fundamentally different and more deadly act (as where the gun which was supposed to be used to 'kneecap' the victim is used instead to blow out his brains).
It was argued on behalf of the appellant in Rahman that even where the defendants all anticipated the possible use of (say) a knife to stab the deceased in the chest and inflict serious injury, they could not on that basis be guilty of murder if the killer or knifeman stabbed as expected, but with an intent to kill that was not foreseen by the others. Stabbing with intent to kill would on that argument be a fundamentally different act from stabbing with intent only to cause serious injury.
The court rejected the argument before going on to suggest 'albeit with trepidation', a 'concise route to verdict' in a case of this kind, avoiding any directions which are too favourable to the defendants. Hooper LJ said (at [68] to [70]):
We assume an attack by a group of armed people on a person (V) who is killed during the attack. It is the prosecution's case that the defendants were parties to that murder. The prosecution accept that none of the defendants on trial can be shown to have caused the death of V and there is no dispute that a distinct member of the group whom we shall call P caused the death. The prosecution's case is that all of the defendants participated in the attack intending (at the least) that really serious harm would be caused to V.
In order to convict D of murder the jury must first be sure that P unlawfully caused the death of V intending to kill him or cause him really serious bodily harm and secondly be sure that D played some part in the attack on V. The route to verdict could then be:
[Counsel] submitted that the expression 'fundamentally different' would normally need no further clarification, albeit that the judge would summarise the competing arguments. . . . We agree.'
- Are you sure that D intended that one of the attackers would kill V intending to kill him or that D realised that one of the attackers might kill V with intent to kill him? If yes, guilty of murder. If no, go to 2.
- Are you sure that either:
If no, not guilty of murder. If yes, go to question 3.
- D realised that one of the attackers might kill V with intent to cause him really serious bodily harm; or
- D intended that serious really bodily harm would be caused to V; or
- D realised that one of the attackers might cause serious bodily harm to V intending to cause him such harm?
- What was P's act which caused the death of V? (e.g. stabbing, shooting, kicking, beating). Go to question 4.
- Did D realise that one of the attackers might do this act? If yes, guilty of murder. If no, go to the question 5.
- What act or acts are you sure D realised that one of the attackers might do to cause V really serious harm? Go to question 6.
- Are you sure that this act or these acts (which D realised one of the attackers might do) is/are not of a fundamentally different nature to P's act which caused the death of V? If yes, guilty of murder. If no, not guilty of murder.
Author: MH
A5.5 Scope of the Joint Venture
As reported in last month's update, the authorities on joint enterprise were recently reviewed by the Court of Appeal in Rahman [2007] EWCA Crim 342. The court has now (at [2007] EWCA Crim 885) certified the following question for possible consideration by the House of Lords:
If, in the course of a joint enterprise to inflict unlawful violence, the principal party kills with an intention to kill which is unknown to and unforeseen by a secondary party, is the principal's intention relevant: (a) to whether the killing was within the scope of a common purpose to which the secondary party was an accessory; and (b) to whether the principal's act was fundamentally different from the act or acts which the secondary party had foreseen as part of the joint enterprise?
Author: MH
A5.17 Corporate Liability
The Corporate Manslaughter and Corporate Homicide Act 2007 creates a new offence of corporate manslaughter (and in Scotland a new offence of corporate homicide). See B1.40.
In P [2007] All ER (D) 173 (Jul) the Court of Appeal considered the possible liability of a director for 'neglect' (as opposed to 'consent or connivance) in connection with an offence under the Health and Safety at Work etc Act 1974, allegedly committed by his company. It was held that, in considering whether there had been neglect on the part of a director or other officer, it was necessary to ascertain whether he had failed to take some steps which fell within the scope of the functions of the office which he had held. Where 'wilful neglect' is not required, it is not necessary to determine whether a defendant 'turned a blind eye'. That would equate the test of neglect with that to be applied where the allegation was connivance. The question was whether, in the absence of actual knowledge, the director or officer should have been put on enquiry. That would depend on the evidence in every case.
Author: MH
A6.3 Incitement - Jurisdiction
In Tompkins (2006) The Times, 17 August 2006 the defendant was charged with inciting the distribution or showing of indecent photographs of children, the evidence being that he had subscribed to a child pornography net in Texas. A Crown Court judge stayed the indictment, holding that the court lacked jurisdiction over an offence of incitement where the person incited (the operator of the pornography net in this case) was abroad. The Court of Appeal allowed a prosecution appeal against the ruling. holding that the act of incitement was that of a person inciting another, abroad, to commit an offence which would come into effect in England and Wales. Accordingly, as the incitement took the form of inciting the distribution of indecent images, which distribution would occur at least in part in the United Kingdom, the Crown Court had jurisdiction over it. See Liangsiriprasert v United States [1991] 2 AC 225, Goldman [2001] EWCA Crim 1684, R (O) v Coventry JJ [2004] All ER (D) 78 (Apr); Smith (Wallace Duncan) (No. 4) [2004] EWCA Crim 631, all of which were considered by the Court.
Author: LL
A6.13 Conspiracy: Sentencing
Two recent cases have independently considered the imposition of discretionary life sentences in cases of conspiracy to commit murder.
In McNee (2007) The Times, 31 May 2007, the appellants were convicted of conspiracy to murder an innocent couple in revenge for a crime committed by their son. This murder was in fact committed by unknown gunmen, but the appellants were convicted of conspiracy, rather than as parties to the murder itself. The judge identified aggravating features as including the professional organisation of a plan to trace and kill two innocent people; the cold-blooded premeditation; the use of firearms; and an underlying intention on the part of the appellants to assert criminal superiority over the area in question. In fixing the minimum terms, he had regard to the Criminal Justice Act 2003, sch. 21, although this was not directly applicable to offences of conspiracy dating from before commencement of that provision. He set minimum terms ranging from 25 to 35 years, which were upheld on appeal. The judge was not strictly obliged to have regard to sch. 21 in setting the tariff, but his decision to do so in this case was endorsed as wholly appropriate.
In Barot [2007] EWCA Crim 1119, the Court of Appeal provided guidance as to the sentencing of inchoate terrorist offences in which the object of a conspiracy or attempt was murder or in particular mass murder. The relevant sentencing regime in this case was that which applied prior to the commencement of the Criminal Justice Act 2003, but many of the court's observations are of more general application.
The court stated that in such cases an indeterminate or life sentence will ordinarily be appropriate, at least for those close to the centre of a conspiracy or attempt. The guidelines previously laid down in Martin [1998] All ER (D) 508 date from an earlier period in which terrorist offenders (e.g. the provisional IRA) were generally less fanatical or ruthless than today's Islamist suicide bombers and their supporters. Indeterminate sentences may be appropriate, because it will often be impossible to say when, if ever, such terrorists will cease to pose a danger to the public.The real problem is that of determining the appropriate tariff. Lord Phillips CJ noted that terrorist mass murders will ordinarily attract a whole life tariff, but said (at [60] to [62]):
We consider that a life sentence with a minimum term of 40 years should, save in quite exceptional circumstances, represent the maximum sentence for a terrorist who sets out to achieve mass murder but is not successful in causing any physical harm. Such a sentence should be reserved for the terrorist who has been convicted, after trial, of a serious attempt to commit mass murder by a viable method. Where the offence is of conspiracy and the acts of the defendant fall short of an attempt, the sentence should be lower.
We have already explained why those who are party to a terrorist conspiracy to commit murder are likely to satisfy the criteria for an indeterminate sentence, although each case must be considered on its own facts. The length of the minimum term to be served where such a sentence is imposed will depend upon the facts of the particular conspiracy and the defendant's involvement in it. Where the court is satisfied that the conspiracy was likely to lead to an attempt and the attempt was likely to succeed it may be right to draw little difference between a conspiracy and an attempt. Where, however, the court is unable to be certain that the conspiracy would have been put into practice, or would have lead to a successful attempt to murder, the sentence should be significantly lower than for an attempt.
Another relevant factor will be the nature of the involvement of the particular defendant in the attempt or the conspiracy. A leader should receive a more severe sentence than a follower. We shall not attempt to summarise aggravating and mitigating factors that are common in the case of most offences. Guidance on these has been provided by the Sentencing Guidelines Council. The Council's Guidelines on giving credit for a guilty plea should be followed, for guilty pleas can be of particular value to the administration of criminal justice where terrorist offences are involved.
Author: MH
A6.25 Conspiracy to Defraud
A dishonest price-fixing or 'cartel' agreement may also amount to a conspiracy to defraud at common law (see Norris v Govt of the USA [2007] EWHC 71 (Admin), although such agreements may now be prosecuted instead as offences under the Enterprise Act 2003, s. 188.
Author: MH
A6.34 Attempt: Actus Reus
In Nevard [2006] EWCA Crim 2896, the appellant seriously wounded his wife with an axe and a knife, and then forced her to abandon an attempt to dial 999 for help. When the emergency services rang back he told them that his grandchildren must have been fooling around with the phone. The police attended despite this and his wife was saved. The appellant was charged with wounding with intent and with attempted murder. He pleaded guilty to the wounding. Following a question from the jury, an issue arose as to whether the appellant's attempt to 'divert the emergency services', after he had already injured his wife could amount to attempted murder.
The jury's actual question to the trial judge was:
Can you clarify whether an attempt to withhold care/emergency services constitutes attempted murder, knowing he has pleaded guilty to wounding with intent.
The trial judge consulted with counsel and gave an answer in these terms:
Obviously if a person comes across somebody who is seriously injured in the street and fails to call the emergency services, they could not be charged with attempted murder . . . . the straight answer to the question is 'yes' and it is necessary for me to elaborate upon that. To be sure of attempted murder you must be sure that he did an act or acts with the intention of killing Mrs Nevard . . . . The Crown's case is that he struck the blows with the axe or the axe handle. When that did not work he went and got a knife and stabbed her with that kitchen knife . . . and also that he slashed her arms with a Stanley knife and that when he did those acts, his intention was that she should die.
Now, where the withholding of the emergency services may help you is as to what his intention was . . . . In other words, by seeing what he did after the event you may get an insight as to what his intention was.
It appears from this that the judge did not ultimately answer 'yes' at all. He treated the attempt to divert the emergency services as nothing more than evidence of of the appellant's overall intention. The jury convicted the appellant, and this was upheld on appeal, but the Court of Appeal was criticial of the trial judge's direction. Richards LJ said:
The judge should have made explicit to the jury that attempting to divert the emergency services could not in itself constitute attempted murder.
But why should this be so? With respect, no real explanation is provided or even hinted at in the judgment. An offence of attempt requires an 'act', and merely failing to call for help (i.e. an omission) cannot be said to satisify the actus reus of that offence, even if the failure is motivated by a desire that the victim should die, but in this case it is clear that the appellant committed an act. He took positive steps to prevent the emergency services responding to his wife's call. If V dies because D prevents the emergency services from reaching him, or from helping him if they do arrive (e.g., by keeping them away at gunpoint), that must make D a substantial cause of V's death, even if D was not the one who inflicted the original injuries. If D takes such positive measures to prevent the emergency services arriving, but despite his best efforts V lives, D must surely have attempted to cause V's death. If not, why not?
Author: MH
A7.28 Relevance of Strasbourg Jurisprudence
Given that a conviction need not necessarily be quashed merely because of a ruling in Strasbourg that there has been a breach of the ECHR, the Criminal Cases Review Commission are not automatically required to refer such cases to the Court of Appeal. Each case brought before the CCRC must be analysed in the light of the Criminal Appeal Act 1995, s. 13(1)(a). On that basis, the CCRC should refer a case to the court, only if there is a real possibility that the conviction, verdict, finding or sentence would not be upheld (R (Dowsett) v Criminal Cases Review Commission [2007] All ER (D) 63 (Jun)).
Author: MH
A7.29 Public Authorities
In R (Al-Skeini and others) v Secretary of State for Defence [2007] UKHL 26, the House of Lords held that the Human Rights Act 1998, s. 6, should be interpreted as applying not only to the conduct of a public authority within the UK but also when it acted within the jurisdiction of the UK for purposes of Article 1 of the Convention, but outside the UK itself. This means that the Convention rights of suspects detained by British forces in Iraq are protected and enforceable under the Human Rights Act 1998, and not merely under the Convention. Indeed, anyone held in custody abroad by British forces, will be protected by the Human Rights Act 1998. They have, in particular, a right to life, a right not to be tortured and a right of access to a fair trial.
In contrast, the legal obligations of British forces conducting operations against insurgents or suspected insurgents are more limited. In Al-Skeini, the House of Lords rejected applications brought under the Human Rights Act by families of civilians killed in shooting incidents involving British forces in Iraq on the grounds that the forces in question were not "in effective control" of the circumstances and not in a position to discharge obligations under UK human rights laws. They are however governed by various obligations under public international law, including Article 43 of the Hague Regulations which provide that an occupying power "shall take all the measures in his power to restore and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country." The families in question may also be able to pursue applications under the Convention in Strasbourg.
Author: MH
A8.16 Terrorist Offences
The Electronic Commerce Directive (Terrorism Act 2006) Regulations 2007 (SI 2007 No. 1550) provide for liability under ss. 1 to 4 of the Terrorism Act 2006 to extend to any act by a supplier of information society services which is established in the UK where the act takes place within the European Economic Area (outside the UK).
Author: MH
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