chapter |2 pages

The extent to which a conviction can be regarded as ‘safe’, notwithstanding unfairness in the trial process, has had to be re-considered following the enactment of the Human Rights Act 1998, and the decision of the European Court of Human Rights in R v Condron [2000] Crim LR 679. The result is that the Court of Appeal should not disengage the issue of the fairness of the trial from the issue of whether or not the conviction is safe. In essence significant violations of the right to a fair trial provided by Art 6 of the European Convention on Human Rights are, of themselves, likely to render a conviction unsafe; see further R v Francom (2000) The Times, 24 October. In R v Togher and Others (2000) The Times, 21 November, Lord Woolf CJ went so far as observe that the approach of the Court of Appeal should be in step with that of the European Court of Human Rights with the result that the denial of a fair trial contrary to Art 6 would now inevitably lead to a finding that the resulting conviction was unsafe. Such a conclusion is a direct result of the obligation created by s3(1) of the Human Rights Act 1998 to the effect that domestic legislation, such as the Criminal Appeal Act 1995, should be read, so far as possible, in a manner that gave effect to Convention rights. R v Davis (2000) The Times, 25 July, whilst not departing from this broad proposition, emphasises that it may still be necessary to look at the circumstances of a particular case before concluding that a violation of Art 6 has rendered a conviction unsafe – it will be a matter of fact and degree. Even if an appeal against conviction succeeds the accused may still face a retrial. The Court of Appeal has the discretion to order a retrial under s 7 of the 1968 Act if it appears to the court that the interests of justice so require. If there has been a total mistrial the Court of Appeal can issue a writ of venire de novo – setting events back to where they were before the irregularity that rendered the trial a mistrial occurred. Some appeals against conviction will be partially successful in that the Court of Appeal can allow the appeal but substitute a conviction for a lesser-included offence – an obvious example being the quashing of a murder conviction and the substitution of a conviction for manslaughter. Appeal by the prosecution: against over lenient sentences

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When interpreting domestic legislation courts must, so far as it is possible, read and give effect to such legislation in a way which is compatible with the Convention rights; see s3(1). Hence domestic courts are given a degree of latitude – reference to the jurisprudence of Strasbourg is mandatory – but it need only be taken into account. Legislation must be construed in a manner compatible with the Convention but only so far as is possible. Three points are particularly worth noting: • When applying the European Convention on Human Rights a domestic court should be prepared to take a generous view as to whether an activity falls within the protection afforded by the Convention’s articles. • The Convention is to be regarded as a ‘living’ or ‘dynamic’ instrument to be interpreted in the light of current conditions. More recent decisions of the European Court of Human Rights will be regarded as carrying more weight than earlier decisions. • Where an Article of the Convention permits some state interference with the enjoyment of a right, a court assessing the extent to which that interference is compatible with the Convention should consider (i) whether the interference is provided for by law; (ii) whether it serves a legitimate purpose; (iii) whether the interference is proportionate to the end to be achieved; (iv) whether it is necessary in a democratic society; (v) whether it is discriminatory in operation; and (vi) whether the state should be allowed a margin of appreciation in its compliance with the Convention – that is, be allowed to apply the Convention to suit national standards. The ‘quality of law test’

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having relied on reasonable chastisement in the circumstances. The court concluded that there had been a violation of Art 3 on the basis that existing domestic law on the defence of lawful chastisement had failed to provide the applicant with adequate protection. Whilst the question of whether, in any given case, the treatment suffered by an applicant reached the minimum level of severity necessary to trigger the operation of Art 3 would depend on the circumstances, where the victim was a child the minimum threshold would be more easily attained. It should be noted that, whilst the court accepted that the United Kingdom could not be held responsible for the actions of a private individual, such as the applicant’s stepfather, it was responsible for a system of criminal law that allowed a person inflicting serious harm upon a child to be acquitted on the grounds that the harm was justifiable chastisement. There has been no legislative response to this decision, but the courts have attempted to alleviate the shortcomings of the domestic law by offering guidelines on the availability of the defence; see RvH (Reasonable Chastisement) (2001) The Times, 18 May. Where a parent raises the defence of lawful chastisement the jury ought to be directed to consider: (i) the nature and context of the defendant’s behaviour; (ii) the duration of that behaviour; (iii) the physical and mental consequences in respect of the child; (iv) the age and personal characteristics of the child; (v) the reasons given by the defendant for administering the punishment. Article 7: Non-retrospectivity

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would not allow him to do so till Saturday 31 December. He did not tell the receptionist at the surgery of the full circumstances of the illness and the doctor did not come. In the afternoon of the same day S phoned again. A locum called, but the deceased died of puerperal fever before he arrived. Medical evidence was that she could have been saved had a doctor been called before that Saturday. S was charged with (1) manslaughter of his wife on 31 December; (2) concealment of birth on 28 December. On the second count his defence was that they did not intend to conceal the birth permanently but would have told the police when they felt up to it. The judge directed the jury that this amounted to a defence to the charge. The judge in his summing-up directed that it had to be proved that in reckless disregard of his duty to care for the deceased’s health, S failed to get medical attention, and that as a direct result of that failure she died. ‘Reckless disregard’ meant that, fully appreciating that she was so ill that there was a real risk to her health if she did not get help, S did not do so, either because he was indifferent, or because he deliberately ran a wholly unjustified and unreasonable risk. It was accepted that he was not indifferent – the evidence was that they were a devoted couple and that he stayed with her all the time when she was ill. It was also accepted that she did not want a doctor called, and the jury had to balance the weight that it was right to give to this wish against her capacity to make rational decisions. In addition it had been proved that the ‘reckless disregard’ led to the death and that had S acted differently on 31 December, his wife’s life would have been saved. The jury convicted on the second count but could not agree on the charge of manslaughter and were discharged from giving a verdict. Airedale National Health Service Trust v Bland [1993] 1 All ER 82 (HL) Anthony Bland was injured in the Hillsborough Stadium disaster. He suffered irreversible brain damage and was diagnosed as being in a persistent vegetative state (PVS). Expert medical evidence was to the effect that there was no hope of recovery. The Airedale NHS Trust, with the support of Bland’s parents, sought a declaration that the doctors treating Bland might lawfully discontinue all life-sustaining treatment and medical treatment except that required to enable Bland to die without unnecessary distress. The Official Solicitor appealed to the House of Lords against the granting of the declaration on the basis that the withdrawal of life support treatment would amount to murder.

chapter 3|2 pages

CAUSATION

chapter |3 pages

R v Kimsey [1996] Crim LR 35 (CA) Facts: The appellant was convicted of causing death by dangerous driving. A close friend of the appellant overtook him and the two engaged in a high-speed chase with the appellant driving a few feet from the rear of his friend’s car. Both cars had just overtaken another car at 75 mph, when the friend’s car swerved on to the verge. The prosecution evidence was that the appellant overtook his friend at that point and struck her car, either because she swerved back to the right, or because he pulled to the left as he overtook. The friend, not in control of her car, struck an oncoming car, and was killed. One of her tyres was underinflated, which could have led to the car being difficult to control. The appellant’s case was that the friend had lost control before his car hit hers and the first collision did not have any effect on her loss of control, which in turn led to the second, fatal collision. The prosecution case was that the appellant’s driving had caused the friend’s loss of control and the first collision, which in turn led to the fatal collision, or alternatively that his driving encouraged her to drive too fast and lose control; or that by driving so closely behind, when she did lose control, the first collision occurred, occasioning further loss of control. The recorder told the jury that they did not have to be sure that the appellant’s driving ‘was the principal, or a substantial, cause of the death, as long as you are sure that it was a cause and that there was something more than a slight or a trifling link’. On appeal, it was argued that it was wrong to say that the cause did not have to be a substantial cause. Held, dismissing the appeal, that the test in Hennigan (1971) 55 Cr App R 262 was whether the contribution of the dangerous driving to the death was more than minute. To use the expression ‘a substantial cause’ is no doubt a convenient way of putting the test to the jury, as was suggested in that case. But the jury may well give the word ‘substantial’ a larger meaning. The recorder’s reference to a ‘slight or trifling link’ was a permissible and useful way to avoid the term de minimis. His direction was faithful to the logic of Hennigan. NOVUS ACTUS INTERVENIENS – CAN THE CHAIN OF CAUSATION BE BROKEN BY THE ACTIONS OF THE VICTIM? Refusing medical treatment

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his actions and the death because the deceased had committed suicide either by reopening his wounds or, the wounds having reopened themselves, by failing to take steps to staunch the consequent blood flow. It was argued on the appeal that the suicide of the deceased would have been a novus actus interveniens and that the judge had misdirected the jury on the issue of causation. Held, dismissing the appeal, that the real question in the case was, as the judge had correctly directed the jury, whether the injuries inflicted by the appellant were an operating and significant cause of the death. That had been enunciated as the correct approach in Smith [1959] 2 QB 35; Blaue [1975] 1 WLR 1411; Malcherek [1981] 1 WLR 690; Cheshire (1991) 93 Cr App R 251, and Smith and Hogan, Criminal Law, 7th edn. It would not be helpful to juries if the law required them to decide causation in a case such as the present by embarking on an analysis of whether a victim had treated himself with mere negligence or gross neglect, the latter breaking but former not breaking the chain of causation between the defendant’s wrongful act and the victim’s death. It would be a retrograde step if the niceties of apportionment of fault and causation in the civil law, and the roles which the concepts of novus actus interveniens and foreseeability did or should play in causation, were to invade the criminal law. In the present case the cause of the deceased’s death was bleeding from the artery which the defendant had severed. Whether or not the resumption or continuation of that bleeding was deliberately caused by the deceased, the jury were entitled to find that the appellant’s conduct made an operative and significant contribution to the death. A positive supervening voluntary act by the victim

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Held, upholding the submissions: (1) that if the expert could not be sure that heroin caused the deceased’s death, the jury could not be and (2) that the alternative submission was well-founded. Regard was had to Cato (1976) 62 Cr App R 41 and Dalby (1982) 74 Cr App R 348: the facts proved were closest to Dalby. Notes and queries 1 In R v Dalby [1982] 1 All ER 916, the defendant supplied drugs to the deceased who consumed them with fatal consequences. The Court of Appeal allowed Dalby’s appeal, inter alia, on the ground that the act of supply did not cause ‘direct harm’ to the deceased. This aspect of the decision was subsequently approved by the Court of Appeal in R v Goodfellow (1986) 83 Cr App R 23. For extracts from these cases see further Chapter 15. 2 In R v Kennedy [1999] Crim LR 65 the defendant, at the request of the deceased, supplied the deceased with a syringe containing heroin. The deceased proceeded to injected himself with the mixture and died from the effect of the drug shortly afterwards. The defendant’s appeal against his conviction for manslaughter, based on the contention that the deceased has caused his own death by self-injection, was dismissed. The Court of Appeal sought to distinguish the case from Dalby on the basis that the defendant had not simply supplied the drug but had also prepared the syringe and handed it to the deceased. The decision is, with respect, highly questionable. What the deceased did was to deliberately risk his own life – this is not an unlawful act. Hence the defendant could not be said to be assisting or encouraging an unlawful act. 3 In determining whether self-administration of drugs by the deceased is a novus actus interveniens to what extent should the courts take into account the knowledge of the deceased? How should the courts view the self-administration where the deceased is a child, a mental defective, or an adult who has been misled as to the nature of the substance? The victim’s actions in seeking to escape from the defendant

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Southern Water Authority v Pegrum and Pegrum [1989] Crim LR 442 (DC) Facts: The respondents were charged with an offence contrary to s 31(1) of the Control of Pollution Act 1974, causing polluting matter (pig effluent) to enter a stream. The respondents reared pigs; effluent produced by the pigs was held initially in tanks and then transferred by gravity into a lagoon constructed for the purpose. The lagoon itself was emptied of liquid content for use as manure several times a year and of sediment annually. In the winter of 1987, after heavy rain, a blocked drain resulted in rain water flowing into the lagoon. A fissure developed at the top of one side of the lagoon and polluting liquid escaped, finding its way into a stream and eventually into a river. The magistrates found that the overflow from the lagoon was caused by an act of God – the ingress of rainwater – and that it was unnecessary to consider whether the respondents were negligent either in not inspecting the drain or discovering the overflow promptly enough or in not providing an adequate drain. They further found that the blocked drain causing the ingress of rainwater was an intervening event ‘breaking the chain of causation’. They dismissed the information and the prosecutor appealed by way of case stated. Held, allowing the appeal and remitting the case with a direction to convict, the following principles applied: (1) where the defendant conducts some active operation involving the storage, use or creation of material capable of polluting a river should it escape, then if it does escape and pollute, the defendant is liable if he ‘caused’ that escape; (2) the question of causation is to be decided in a common sense way; (3) a defendant may be found to have caused that escape even though he did not intend that escape and even though the escape happened without his negligence; (4) it is a defence to show that the cause of the escape was the intervening act of a third party or act of God or vis major which are the novus actus interveniens defences to strict civil liability referred to in Rylands v Fletcher (1868) LR 3 HL 330; (5) in deciding whether the intervening cause affords a defence the test is whether it was of so powerful nature that the conduct of the defendant was not a cause at all, but was merely part of the surrounding circumstances. On the facts of the present case, the active operations or positive acts of the respondents were the storage and re-use of the effluent which resulted in the formation of the toxic sediment which polluted the stream. The magistrates erred in finding that the ingress of rainwater was an act of God; an act of God is an operation of natural forces so unpredictable as to excuse a defendant all liability for its consequences. The quantity of rain could not properly be regarded in itself as an act of God and in any event the ingress of rainwater into the lagoon was the result of the overflow from the blocked drain. Although unpredictable and unforeseeable operation of animate forces can amount to an act of God (see Carstairs v Taylor (1870) LR 6 Exch 217), there was no factual basis for such finding in the present case. The respondents submitted that the blocked drain was an effective intervening cause relegating the respondent’s effluent operation to a mere surrounding circumstance; it was sought to distinguish Alphacell Ltd v Woodward [1972] AC 824 on the basis that in

chapter |2 pages

Further reading

chapter 4|1 pages

MENS REA: THE MENTAL ELEMENT

chapter |1 pages

RECKLESSNESS Subjective recklessness

chapter |14 pages

Objective recklessness

chapter |1 pages

obvious risk that property would be damaged and that life would thereby be endangered? The ordinary prudent bystander is not deemed to be invested with expert knowledge relating to the construction of the property, nor to have the benefit of hindsight. The time at which his perception is material is the time when the fire is started.’ 4 Why is a man who drives his car whilst distracted by the sight of a ‘pretty girl’ (see R v Reid) not reckless? 5 Parliament has since replaced the offence of causing death by reckless driving with the offence of causing death by dangerous driving. What is the significance of the substitution of the word ‘dangerous’ for ‘reckless’? Will it make convictions easier to come by? Does it make clear that the fault element is totally objective? Does it suggest that the House of Lords in Lawrence was trying to achieve a laudable result by the wrong means (that is, judicial activism to bring careless drivers within the scope of the offence of reckless driving)? 6 It seems fair to assume that Lord Diplock was attempting, in Caldwell and Lawrence, to send out a message that failure to advert to an obvious risk could give rise to criminal liability. Is there any deterrent effect to such decisions? Do members of the general public know about these rulings? If so do they alter their behaviour as a result, or are defendants only aware of the scope of recklessness when they find themselves convicted of offences where Caldwell applies? 7 Significantly, Caldwell recklessness has now effectively been confined to the offence of criminal damage. In W (A Minor) v Dolbey (1989) 88 Cr App R 1 (DC), Robert Goff LJ (on the issue of whether or not the Lawrence (1981) and Caldwell (1981) approach to recklessness was appropriate in relation to offences that could be committed ‘maliciously’ such as malicious wounding contrary to s 20 of the Offences Against the Person Act 1861) observed:

chapter |8 pages

cable had been left entirely exposed for a period of six minutes. He did not believe there was any risk of endangering life at any stage, and he would not have undertaken the work if he had not been competent to do so. The judge ruled that as a matter of law, any precautions designed to eliminate the risk of endangering life must, to provide a defence, be taken before the damage was caused. As a result of the ruling the appellant changed his plea to guilty. On appeal, it was argued that the defendant fell outside the definition of recklessness set out in Caldwell [1982] AC 341. He had not failed to consider the risk (he had thought about it), and nor had he acted recognising the existence of a risk (he had decided there was no risk). Counsel relied on Chief Constable of Avon and Somerset v Shimmen (1987) 84 Cr App R 7. Held, dismissing the appeal, there is a clear distinction between avoiding a risk and taking steps to remedy a risk which has already been created. If a defendant is to successfully contend that the taking of certain steps has prevented him from falling within the definition of recklessness, then those steps must be directed towards preventing the risk at all, rather than at remedying it once it has arisen. The appellant accepted that he had created a risk by exposing the cable, and that it remained exposed for six minutes. Although he said he took reasonable precautions to eliminate the danger, by then he was inevitably remedying a risk that he had already created rather than preventing the risk which arose when the live wire was exposed. R v Reid [1992] 1 WLR 793 (HL)

chapter |5 pages

Knowingly

chapter |38 pages

CHILDREN AND PROOF OF MENS REA

chapter |2 pages

Further reading

chapter |15 pages

STRICT LIABILITY

chapter |1 pages

MISTAKE

chapter |6 pages

MISTAKE OF LAW

chapter |3 pages

CODIFICATION AND LAW REFORM PROPOSALS

chapter |13 pages

SANE AND INSANE AUTOMATISM

chapter |5 pages

from hypoglycaemia and was unaware of his actions. The judge refused to leave that defence to the jury. Held, allowing the appeal, the arguments put to the judge failed to distinguish between hyperglycaemia and hypoglycaemia, the former being too much sugar in the blood, and the latter too little. Hyperglycaemia might raise difficult problems about the M’Naghten Rules and verdicts of not guilty by reason of insanity. Hypoglycaemia was not caused by the initial disease of diabetes, but by the treatment in the form of too much insulin, or by insufficient quality or quantity of food to counterbalance the insulin. Generally speaking, that would not give rise to a verdict of not guilty by reason of insanity but would, if it were established and showed that the necessary intent was or might be lacking, provide a satisfactory defence to an alleged crime such as theft, due to lack of mens rea. Those simple facts would be plain to anyone who troubled to read Quick (1973) 57 Cr App R and Hennessy [1989] 1 WLR 287. In the present case, the problem was hypoglycaemia and the judge had to decide whether, on the evidence, there was a prima facie case for the jury to decide whether the defendant was suffering from its effects and, if so, whether the Crown had shown that he had the necessary intent under the Theft Act. It was not doubted that the defendant was a diabetic and there was evidence that he might have been suffering from the effects of a low blood sugar level at the relevant time. That evidence should have been left to the jury. Notes and queries 1 In RvT [1990] Crim LR 256, the court accepted evidence that post-traumatic stress disorder could give rise to automatism. By contrast, in R v Sandie Smith [1982] Crim LR 531, evidence of severe pre-menstrual tension was not accepted as giving rise to automatism. Aside from the issue of whether there was sufficient evidence of automatism in the latter case, the determining factor was the court’s desire to exercise some jurisdiction over the accused. If a plea of automatism is successful the defendant is free to go – the courts cannot compel him or her to receive treatment for the condition giving rise to the automatism. Self-induced automatism

chapter |9 pages

R v Hennessy [1989] 1 WLR 287 (CA)

chapter |1 pages

INTOXICATION

VOLUNTARY INTOXICATION

chapter |16 pages

ACCESSORIAL LIABILITY

chapter |19 pages

Joint enterprise

chapter |1 pages

In practice it will be for the jury to determine whether the weapon used by the principal is sufficiently different from that contemplated by the accomplice for there to be a departure from the joint enterprise, but it can be imagined how difficulties might arise where, for example, the agreement is to hit the victim with bare fists and the principal kicks him whilst wearing steel-capped boots. Are the boots a fundamentally different type of weapon? 5 P may use the weapon contemplated by A, and with intent contemplated by A, but in a way that causes more life threatening injuries than those contemplated by A. For example A and P agree that P will attack V with a baseball bat and cause grievous bodily harm by breaking P’s arms. In the event P attacks V with the baseball bat, intending to cause V grievous bodily harm, by striking V on the head. V dies from his injuries. P may be convicted of murder, and A (in theory) could be convicted as an accomplice, given his mens rea. Can it not be argued, however, in the light of Gamble (see above) that by choosing to attack V and causing more life threatening GBH, P deliberately departed from the common design? See further R v Bamborough [1996] Crim LR 744, where the Court of Appeal proceeded on the basis that it would be sufficient, in order to substantiate A’s conviction for murder as an accomplice, that he had contemplated grievous bodily harm as a possible incident of the common design, the court not being overly concerned at how A might have foreseen the grievous bodily harm being caused by P. Residual liability for manslaughter where the principal is convicted of murder

chapter |3 pages

R v Millward [1994] Crim LR 527 (CA) Facts: The appellant was convicted of aiding, abetting, counselling or procuring another person to cause death by reckless driving. The prosecution case was that the appellant had given one of his employees instructions which involved him using a tractor belonging to the appellant to tow a trailer on a main road. The tractor’s hitch was poorly maintained and during the journey the trailer became detached and hit a car, causing the death of a passenger. The recklessness alleged was confined to the state of the hitch mechanism, and the appellant was said to have procured the offence by his instructions to his employee. It was argued on appeal that there was no reported case of a procurer being convicted following the acquittal of a principal offender. Further, in the instant case, the word ‘reckless’ imported a mental element into the actus reus of the offence. The acquittal thus implied that the actus reus had not been committed. Held, dismissing the appeal: 1 A passage in Blackstone’s Criminal Practice was approved, to the effect that an accessory can be liable provided that there is the actus reus of the principal offence even if the principal offender is entitled to be acquitted because of some defence personal to him. Procuring does not require a joint intention between accessory and principal. The procurer may, therefore, be convicted where the principal lacks the necessary mens rea. 2 In the instant case, the actus reus was taking of the vehicle in its defective condition on to the road so as to cause the death. It was procured by the appellant. 3 The ratio of Thornton v Mitchell [1940] 1 All ER 339 was that the driver did not commit the actus reus of careless driving, the offence in that case. He relied on the conductor’s signals. 4 Cogan and Leak [1976] QB 217 was, contrary to the submissions of the defence, essentially a case of procuring rather than aiding and abetting, and could not be distinguished from the present case. Principal offender has a defence not available to the accomplice

chapter |1 pages

R v Baker [1994] Crim LR 444 (CA) Facts: A man with the same name as the deceased had earlier been robbed in his own home and there was evidence that the deceased had paid the robbers to commit the offence. He was called out one night and killed with two knives belonging to the appellant. Witnesses said that the appellant had said that he had done the killing. At trial, a co-defendant gave evidence in his own defence which implicated the appellant. He said that on the night of the killing, the appellant said he wanted to see Sam, which was the nickname of the deceased, because, he said, the appellant had been a party to the robbery. They went to waste ground where he expected the appellant to have a word with Sam but instead he attacked him and went mad, stabbing him repeatedly. Death was caused by 48 stab wounds, each of which was fatal. The appellant’s evidence was that he knew that his co-defendant was a violent man who had kicked and punched him previously and threatened to finish him off. He and others had told him that Sam was going to the police about the robbery and wanted him to go with them to see Sam. He went out of fear, and they took his knives. Once on the open ground, the co-defendant handed the appellant a knife and told him to kill Sam. He then went berserk and was waving the other knife at the appellant, who was petrified. The appellant swung the knife which penetrated Sam somewhere near the shoulder or the throat, Sam staggered back and the co-defendant went on screaming for the appellant to kill Sam and so he swung the knife twice more. He did not know where it went in. The appellant then passed the knife back to the co-defendant and said ‘I’m not doing it’. He did not touch Sam again but moved a short distance away and turned his back. He then heard more thuds caused by the others continuing to stab Sam. He then saw him on the ground. The defence was that insofar as he was involved in any joint enterprise, it was a joint enterprise to do serious harm to Sam but not to kill him, and he did it under duress. It could not be proven that any of the three stab wounds he had inflicted would have killed Sam or that they did kill him. That he passed over the knife and thereafter disassociated himself from what the others did meant that the joint enterprise had come to an end. The witnesses were tainted by their close relationship with the co-defendant. Held: It would be considered how far in practice a direction to the jury to consider a s 18 count would have benefited or might have benefited the appellant. The defence would have relied on duress by the co-defendant but if that had succeeded there would have been a complete acquittal. The risk that the jury might be unwilling to acquit him completely and should therefore have been allowed to consider convicting on a lesser charge presupposed that they would convict him after satisfying themselves that he did not act under duress. In that situation, according to his story, the appellant was told by the co-defendant to kill Sam and stabbed him three times before turning away and saying that he wasn’t doing it. He then stayed there until Sam was on the ground dead or dying, whereupon he left with the other two. If that account

chapter |1 pages

Further reading

chapter |8 pages

INCHOATE OFFENCES – INCITEMENT

chapter |6 pages

INCITEMENT AND IMPOSSIBILITY

chapter |3 pages

INCHOATE OFFENCES – CONSPIRACY

chapter |2 pages

R v Hollinshead [1985] 1 AC 975 (HL)

chapter |1 pages

Wai Yu-Tsang v R [1992] 1 AC 269 (PC)

chapter |5 pages

Conspiracy to commit a crime abroad

chapter |3 pages

CODIFICATION AND LAW REFORM PROPOSALS

chapter |1 pages

INCHOATE OFFENCES – ATTEMPTS

chapter |1 pages

DURESS AND NECESSITY

chapter |2 pages

R v Martin (David) [2000] 2 Cr App R 42

chapter |1 pages

psychiatric illness. In refusing to admit the evidence the judge considered Graham and Howe and said that if the word ‘characteristics’ was given the natural wide meaning it would include personal mental characteristics and if these were included the objective test would be undermined completely. Therefore, there must be a limited meaning in this context and it seemed to the judge it would include such things as age, sex, and serious physical disability, but he did not consider it included mental characteristics such as inherent weakness, vulnerability and susceptibility to threats. The history was inadmissible as hearsay and the doctor could not say whether the appellant was in fact threatened nor could he say whether he was affected by any threats which might have been made. The psychiatrist’s opinion that the appellant was by nature pliable or vulnerable could not concern the jury because that would circumvent the objective test. The death of his father a year or more before the offences was something within the ordinary scope of human experience (see Turner (1974) 60 Cr App R 80). In support of his argument that the judge was wrong, counsel relied on a passage from the Law Commission Report (No 83, para 228), which said that the personal characteristics of a defendant were most important. Threats directed against a weak, immature or disabled person might well be much more compelling than against a normal healthy person. However, that recommendation was not enacted by Parliament and did not represent the law. The court was bound by Graham and Howe, and Lord Lane’s judgment in Graham did not comply with the suggestion of the Law Commission. The second limb of the test, which passed an objective test, required the jury to ask themselves whether a person of reasonable firmness, otherwise sharing the characteristics of the defendant, would or might have responded as he did to the threats to which he was subjected. If the standard for comparison was a person of reasonable firmness it must be irrelevant for the jury to consider any characteristics of the defendant which showed that he was not such a person, but was pliant or vulnerable to pressure. It would be a contradiction in terms to ask the jury this question, and then to ask them to take into account, as one of his characteristics, that he was pliant or vulnerable. For the purposes of this appeal, evidence of personal vulnerability or pliancy falling short of psychiatric illness was not relevant. R v Hegarty [1994] Crim LR 353 (CA) Facts: At the appellant’s trial for robbery, and possession of an imitation weapon, his defence was duress. He claimed that some Asian men who accommodated him when he was on the run later attacked him and threatened violence against his family unless he carried out the robberies. The Crown challenged the existence of the Asians or the threats. In support of the plea of duress the appellant sought to put before the court the evidence of two medical witnesses who would testify to his mental instability. He had a conviction for manslaughter of his wife on grounds of diminished responsibility, and the

chapter |1 pages

reports described him as ‘emotionally unstable’ and in a ‘grossly elevated neurotic state’. The judge refused to admit the evidence, and on appeal following conviction it was contended that he was wrong. The primary contention was that the appellant’s pre-existing mental condition made him vulnerable to threats. Held, dismissing the appeal, the duress relied upon was duress by threats, but in some cases a defendant might be able to rely on ‘duress by circumstances’ (see Conway [1989] QB 290; Martin [1989] 1 All ER 652), and although not argued in this way it was proposed to consider whether the medical evidence could have been introduced on the basis that Hegarty might have been able to set up such a defence. Duress by threats provided a defence to a charge of any offence other than murder (see Howe [1987] AC 417), attempted murder (see Gotts [1982] 2 AC 412) and some forms of treason. It was founded on public policy considerations (see AG v Whelan [1934] IR 518). The fact that the defendant’s mind had been ‘overborne’ by the threats did not mean that he lacked the requisite intent to commit the crime (see DPP for Northern Ireland v Lynch [1975] AC 653, 703B). It followed that the law might have developed on the lines that, when considering duress, a purely subjective test should be applied, and it might well develop in this way in the future (see Law Com 218, para 29.14, November 1993, Cmnd 2370 and draft Criminal Law Bill, cl 25(2)). As the law stood however the test was not purely subjective but required an objective test to be satisfied (Howe). The jury had to consider the response of a sober person of reasonable firmness ‘sharing the characteristics of the defendant’. They could take account of age, sex and physical health, but it was open to consideration whether the shared characteristics could include a personality disorder of the kind suffered by the appellant. His counsel argued that the expert evidence was relevant to explain the reaction of a man like him to threats of violence to himself and his family, and admissible because the pathological aspects of his personality and the effect of his disorder on his behaviour were matters which lay outside the knowledge and experience of a judge and jury. Counsel referred to a passage in Emery (1993) 14 Cr App R (S) 394, 398 where Lord Taylor CJ said that: ‘... The question for the doctors was whether a woman of reasonable firmness with the characteristics of [the appellant], if abused in the manner which she said, would have had her will crushed so that she could not have protected her child.’ It was accepted that for the purposes of the subjective test medical evidence was admissible if the mental condition or abnormality was relevant and its effects lay outside the knowledge and experience of laymen. In the present case, the reports before the judge did not go that far, and the judge had to decide on the material before him. There were no grounds for disturbing his decision. As the evidence was not admissible to explain the reaction of the appellant himself, it was clearly not admissible on the objective test. The passage cited could not be read in isolation,

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and it was not considered that Lord Taylor CJ intended to throw any doubt on the general rule which presently applied to cases of provocation and duress that the application of the objective test was a matter for the jury (see the speech of Lord Simon in Camplin [1978] AC 705). The medical evidence was not admissible as the law stood on the objective test in a case of duress. Further, as that test predicated a ‘sober person of reasonable firmness’ there was no scope for attributing to that hypothetical person as one of the characteristics of the defendant a pre-existing mental condition of being ‘emotionally unstable’ or in a ‘grossly elevated neurotic state’. That left consideration of whether the position would have been different had ‘duress by circumstances’ been asserted. It was plain from Martin that an objective test applied, and one of the questions to be addressed was whether a sober person of reasonable firmness, sharing the accused’s characteristics, would have responded to the situation confronting him by acting as he did. The medical evidence in this case did not address that question. The judge was right to exclude it as inadmissible. R v Flatt [1996] Crim LR 576 (CA) Facts: The appellant was convicted on four counts of possession of drugs with intent. His defence was duress. He was addicted to crack cocaine and owed his supplier £1,500. Some 17 hours before the police searched his flat, the drug dealer told him to look after the drugs found, saying that if he did not, he would shoot the appellant’s mother, grandmother and girlfriend. On appeal, it was argued that the judge should have told the jury that, in assessing the response of the hypothetical person of reasonable firmness to the threats, they should have invested that person with the characteristic of being a drug addict. Held, dismissing the appeal, that drug addiction was a self-induced condition, not a characteristic. There was no evidence that the appellant’s addiction (or indeed that of anyone else) would have had an effect on a person’s ability to withstand a threat from a drugs dealer. It was not sought to adduce psychiatric or other evidence to say that the appellant’s ability to withstand threats was in any way weakened. It may well be that he felt under some obligation to look after the supplier’s drugs. R v Bowen [1997] 1 WLR 372 (CA)

chapter |16 pages

R v Howe [1987] AC 417 (HL)

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R v Ali [1995] Crim LR 303 (CA) Facts: The appellant was convicted of robbery, having an imitation firearm with intent and possessing an imitation firearm when committing an offence. The appellant robbed a building society of £1,175, in the course of which he threatened cashiers with a gun. At trial he gave evidence that he had gone to Pakistan in 1987 and had become a heroin addict. One of the suppliers to whom he resorted was X, whom he refused to name but whom he knew to be a very violent person. He said the arrangement was that he would sell on the heroin he received from X and hand on the proceeds to him, as well as taking a certain amount for his own use. One day instead of selling on the bulk of the heroin, he used it all for his own purposes. That put him in debt to X, who threatened him and told him on several occasions that he would be shot. The appellant moved house, but X caught up with him, gave him a gun and told him he wanted the money the following day. The appellant was to get it from a bank or building society, otherwise he would be killed. The appellant was scared that X would return for him if he went to the police and so he committed the robbery. X took the money from him. On appeal, it was argued that the judge had not directed the jury correctly on the defence of duress, which was the burden of the appellant’s case. The judge had posed four questions for the jury, the last of which was whether the appellant, in obtaining heroin from X and supplying it to others for gain, after he knew of X’s reputation for violence, voluntarily put himself in a position where he knew that he was likely to be forced by X to commit a crime. It was submitted that it was not sufficient for the appellant knowing of X’s reputation for violence, voluntarily to put himself in a position where he knew he was likely to be forced by X to commit a crime; the judge should have said ‘forced by X to commit armed robbery’. Held, dismissing the appeal, the jury could not have read the words ‘a crime’ as referring back to the drug dealing, as opposed to some crime other than that which was the common currency of the relationship between the appellant and X. The crux of the matter was knowledge in the defendant of either a violent nature to the gang or the enterprise which he had joined, or a violent disposition in the person or persons involved with him in the criminal activity he voluntarily joined. If a defendant voluntarily participated in criminal offences with a man ‘X’, whom he knows to be of a violent disposition and likely to require him to perform other criminal acts, he could not rely on duress if ‘X’ does so. The judge’s summing up had expressed that proposition accurately. He had made it clear that, if there was no reason for a defendant to anticipate violence, then he would be entitled to rely on duress. But if he knew of a propensity for violence in those with whom he was working, then he could hardly rely on duress if they had threatened him with violence to make him do their bidding.

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reversing he accidentally drove over one of his own passengers who had failed to get into the car in time. The magistrates’ court convicted him of driving with excess alcohol but the Crown Court allowed his appeal against conviction on the basis of duress. The prosecutor appealed against the Crown Court decision by way of case stated. Held, dismissing the appeal, it was clear that the defence of duress was made out where fear engendered by threats caused a person to lose complete control of his will (see Willer (1986) 83 Cr App R 225; Ortiz (1986) 83 Cr App R 173, 176, per Farquharson J). On the facts found by the Crown Court the appellant was in terror when he drove off and it was a hypothetical question whether he might have driven in the same way if he had not been in fear from the threats. A further important finding of fact was that he drove off only ‘some distance’ down the road and not, for example, all the way home so that the defence of duress/necessity continued to avail him. (DPP v Jones [1990] RTR 33 distinguished.) The prosecution had failed to negative the defence of duress. DPP v Davis; DPP v Pittaway [1994] Crim LR 600 (DC) Facts: The respondents were charged separately with driving with excess alcohol, contrary to s5(1)(a) of the Road Traffic Act 1988. Magistrates dismissed the charges finding that, in each case, the defence of duress had been proved. The DPP appealed by way of case stated. Davis: Magistrates found Davis had been suffering stress and anxiety when he had accepted an invitation to go for a meal with a male acquaintance. After the meal he returned to the other man’s flat where he became the subject of an unwelcome homosexual advance. Magistrates found he feared for his life and had run from the flat. After breaking free from the other man’s clutches, he had driven away. Magistrates applied a subjective test in deciding it was more likely than not that events had caused Davis to lose complete control of his will. Pittaway: Pittaway had recently divorced her husband who had been violent towards her. Magistrates found that, as a result of the violence she was frightened of men. She formed a new relationship with the appellant. At a party, she and the appellant had a row, leading to an angry exchange of words outside the party and unspecified threats being made by the appellant. Magistrates found the respondent believed she would suffer immediate violence from the appellant and, although she ran to her house which was about 200 yards from the party, she decided instead to hide in her car. After five minutes or so, she drove 200 yards before being stopped. The appellant was not in the vicinity at the time. Held, allowing both appeals and remitting the cases to the magistrates with a direction to convict, there was not evidence raising the defence of duress. Davis: Although the defence of duress was subjective, it also had objective elements to it, namely whether there was good cause to fear death or serious injury would occur unless the respondent acted as he had done, and whether a sober person of reasonable firmness, sharing the respondent’s characteristics,

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would have responded in the same way (Graham and Howe). The magistrates had focused on loss of will at the invitation of the prosecution, and this may have led them to overlook the objective elements. There was no finding that the respondent had been in fear of his life or serious injury at the moment he drove off, or that he continued to be frightened during the two miles he drove before being stopped. The only finding was that the respondent feared for his life when still in the flat. The magistrates did not consider whether there was good cause for the fear. Had they done so, it would have been impossible to conclude that the other man drawing near and undoing the respondent’s shirt buttons could provide cause for such fear. Neither did the other man’s attempts to pull the respondent from his car, which were accompanied by unspecified abuse but no actual blows. The magistrates had also erred in deciding that it was not unreasonable for the respondent to drive two miles as it would have been difficult for him to stop. They should have considered whether it was necessary for him to continue driving. Pittaway: The magistrates had again applied a subjective test, concerning themselves with the effect on the respondent of a man behaving violently towards her. They had not found that the threats amounted to threats of death or serious injury. They were wrong to apply a subjective test, and also wrong in considering whether the distance driven was reasonable, rather then necessary. Neither did they consider the significance of the respondent sitting in her car for five minutes, unpursued by the appellant, before driving off. They should have considered whether there was good cause for her to fear, which there was not. R v Pommell [1995] 2 Cr App R 607 (CA)

chapter |1 pages

Further reading

chapter |15 pages

SELF-DEFENCE

chapter |13 pages

The Criminal law Act 1967

chapter |3 pages

SELF-DEFENCE AND NECESSITY

chapter |1 pages

Further reading

chapter |5 pages

HOMICIDE

chapter |55 pages

R v Morhall [1996] 3 WLR 330 (HL)

chapter |3 pages

The criminal act must be dangerous

chapter |1 pages

R v Ball [1989] Crim LR 730 (CA) Facts: The defendant shot a neighbour. At his trial, the defendant’s defence was lack of intention to kill or cause harm: he thought he had loaded the gun with a blank cartridge. It appeared that he had previously attempted to fire two such blanks to scare and frighten the deceased from his land. For reasons which were not clear they had not detonated. He said that he kept live and blank cartridges together in the pocket of his overalls in the house. He had grabbed a handful when he had picked up the gun, intending only to frighten the deceased. Held, dismissing the appeal: R v Daweson (1985) 81 Cr App R 150 went no further than showing that the sober and reasonable man must look at the unlawful act to see if it was dangerous and not at peculiarities of the victim; in that case the victim had a heart condition. In cases of involuntary manslaughter, there was a distinction between unlawful and lawful acts resulting in death. Where the act was unlawful, the question for the jury was whether it was also dangerous in the sense that all sober and reasonable people would inevitably realise that it would subject the victim to the risk of some harm, albeit not serious harm. Questions of gross or criminal negligence were not material. In many cases the judge might have to give a direction on the question of a lawful act and gross or criminal negligence because the jury might not accept that an accused deliberately did an unlawful act. But in this case it was accepted on behalf of the appellant that he had unlawfully assaulted the deceased. His act in firing at the deceased was ‘an act directed at the victim’ (per Waller LJ in R v Dalby (1982) 74 Cr App R 348 at 352), with ‘no fresh intervening cause between the act and the death’ (per Lord Lane CJ in R v Goodfellow (1986) 83 Cr App R 23). He had used his own cartridges and loaded the gun himself; no other agency was involved. In manslaughter arising from an unlawful and dangerous act, the accused’s state of mind was relevant only to establish (a) that the act was committed intentionally; and (b) that it was an unlawful act (DPP v Newbury (1977) 62 Cr App R 291). Once (a) and (b) were established, the question of whether the act was dangerous was to be judged not by the appellant’s appreciation but by that of the sober reasonable man, and it was impossible to impute into his appreciation the mistaken belief that what he was doing was not dangerous because he thought he had a blank cartridge in the chamber. At that stage, his intention, foresight or knowledge was irrelevant. Does the dangerous criminal act have to be directed at the victim?

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NON-FATAL OFFENCES AGAINST THE PERSON

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said that they were going to Runcorn. They took a curious route to Runcorn, and eventually, she said, they stopped on what seemed like a big cinder track. The time by then was apparently about 4 am. Then, she said, ‘He just jumped on me. He put his hands up my clothes and tried to take my tights off. I started to fight him off, but the door of the car was locked and I could not find the catch. Suddenly he grabbed me and then he drove off and I started to cry and asked him to take me home. He told me to take my clothes off and, if I did not take my clothes off, he would let me walk home, so I asked him to let me do that. He said, that if he did, he would beat me up before he let me go. He said that he had done this before and had got away with it and he started to pull my coat off. He was using foul language’. And then she said that she told him, ‘I am not like that’, and he said something like, ‘You are all like that’. Then he drove on. ‘Again’, said the girl, ‘he tried to get my coat off, so I got hold of my handbag and I jumped out of the car. When I opened the door, he said something and revved the car up and I jumped out. The next thing I remember he was backing towards me and so I ran to the nearest house. He backed and shouted and then he drove off’, and then she remembered being in the lady’s house. She said she was taken to hospital, where she was treated for some concussion and for some grazing, and was detained in hospital for three days. The defendant was charged with assault occasioning actual bodily harm.

chapter |7 pages

The mens rea for s 47

chapter |4 pages

He continued:

chapter |2 pages

SEXUAL OFFENCES

INDECENT ASSAULT

chapter |12 pages

Indecency

chapter |7 pages

Mistake as to consent

chapter |4 pages

Attempted rape

chapter |43 pages

THEFT

chapter |3 pages

Property belonging to another

chapter |3 pages

CODIFICATION AND LAW REFORM PROPOSALS

chapter |4 pages

Belief in consent of owner (s 12(6))

chapter |4 pages

without paying for the meal but that he decided to stay on being told about the police being summoned. He was subsequently indicted under s 3 of the Theft Act 1978 with making off from the restaurant without paying for the food and wine which had been consumed. On a submission of no case to answer: Held: ‘Makes off’ refers to making off from the spot where payment is required or expected. What is the spot depends on the circumstances of each case. In this case the spot was the restaurant. The jury would be directed that it was not open to them to find the defendant guilty of the offence on the indictment but that it was open to them to find him guilty of an attempt to commit the offence. R v Brooks and Brooks (1982) 76 Cr App R 66 (CA) Facts: The appellants, father and daughter, along with a person named Smith, had a meal together one evening in the upstairs room of a restaurant. At 10.30 pm the daughter was seen leaving the premises in haste. The manager went upstairs and saw the two men were not there but found Smith downstairs waiting outside the men’s lavatory. Nearby was a door inside the premises which led into the yard. Smith made no comment when asked about the unpaid bill but, after entering the lavatory, later made off through the outer door. The manager chased after him and asked him to come back. While they were re-entering the restaurant, the father came out of it. All three then went back inside. All the father could offer for payment for the bill of £8.52 was a cheque for £130 in his favour, which later turned out to be valueless. Smith said in the father’s hearing that the payment was not due from him, Smith. When the daughter was later interviewed by the police she maintained that Smith had met them earlier that night for the first time and had generously offered to treat her and her father to a meal. Both father and daughter were charged with making off without payment contrary to s3(1) of the Theft Act 1978.

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BURGLARY AND GOING EQUIPPED

BURGLARY

chapter |8 pages

Entry as a trespasser

part |1 pages

Section 10(1)(b) of the Theft Act 1968: ‘weapon of offence’

chapter |3 pages

RvO’Leary (1986) 82 Cr App R 341 (CA)

chapter |2 pages

ROBBERY AND BLACKMAIL

ROBBERY

chapter |4 pages

BLACKMAIL

chapter |11 pages

R v Nabina [2000] Crim LR 481

chapter |4 pages

The scope of the offence under s 1

chapter |1 pages

HANDLING STOLEN GOODS

chapter |1 pages

DISHONESTLY RETAINING A WRONGFUL CREDIT

chapter |6 pages

There can be no conviction under s 23 unless the prosecution can prove that the goods have been stolen. However, where all of the other requirements of handling are satisfied (ie the only one missing is that the goods are stolen), the defendant may be convicted of attempted handling under s 1 of the Criminal Attempts Act 1981 (cf R v Shivpuri [1987] AC 1), or the handling may amount to a fresh appropriation (and so theft) of the goods. See also Walters v Lunt [1951] 2 All ER 645, where the defendants were charged (under legislation which preceded the Theft Act 1968) with receiving stolen goods. The goods in question had been taken by a child aged seven, ie below the age of criminal responsibility. The Divisional Court held that since the person who took the goods could not be guilty of theft, the goods were not stolen goods. It followed that the defendants could not be guilty of receiving stolen goods. Lord Goddard CJ pointed out, however, that the defendants, by taking possession of the goods and keeping the goods (and thereby appropriating them), could have been charged instead with theft of those goods. AG’s Ref (No 4 of 1979) (1980) 71 Cr App R 341 The defendant had received a cheque for £288.53 from a fellow employee. The defendant’s fellow employee (that is, the thief) had obtained cheques (totalling over £800) by deception from her employer. The cheques had been paid into her bank account, along with payments from legitimate sources. The trial judge ruled that as the bank account on which the cheque for £288.53 had been drawn had received credits from a variety of sources, some legitimate and some illegitimate, it was impossible for the prosecution to prove that the payment made to the defendant was in law stolen goods. The following point of law was referred to the Court of Appeal:

chapter |5 pages

Petition: The Appeal Committee of the House of Lords (Lord Fraser of Tullybelton, Lord Roskill and Lord Bridge of Harwich) dismissed a petition by the appellant for leave to appeal. Ryan and French v DPP [1994] Crim LR 457 (DC) Facts: A month after a dinghy had been stolen, the loser saw it in the possession of the appellants. They claimed that the appellant French had bought it a year previously. They were charged with both theft and handling of the dinghy. Justices convicted them of the handling and acquitted them of the theft. On appeal by way of case stated it was argued: (1) that the justices would have had to have found as a fact that the appellants were not the thieves, which they could not have done, as the evidence was equally consistent with theft as handling; (2) the justices should have directed themselves to withdraw the count of handling, the evidence being more consistent with theft. The question certified was: ‘Can a conviction of handling be justified on the evidence given, having regard to the fact that the appellants were acquitted on the count of theft?’ Held, dismissing the appeal: (1) It was well understood that the prosecution did not have to prove that handlers were not thieves. (2) There are cases where it is appropriate to withdraw a count or charge of handling when both theft and handling are charged. This was not such a case. There was sufficient evidence to support a prima facie case on each charge and it was for the justices to decide on the basis of their assessment of the witnesses and the inferences they were prepared to draw if either charge were made out. R v Fernandez [1997] 1 Cr App R 123 (CA)

chapter |6 pages

Receiving

chapter |2 pages

Further reading

chapter |1 pages

CRIMINAL DAMAGE

chapter |1 pages

WITHOUT LAWFUL EXCUSE

chapter |4 pages

R v Denton [1981] 1 WLR 1446 (CA)

chapter |11 pages

R v Baker and Wilkins [1997] Crim LR 497

chapter |2 pages

RACIALLY MOTIVATED CRIMINAL DAMAGE

chapter |5 pages

OFFENCES INVOLVING WEAPONS

chapter |1 pages

INTENTION TO INTIMIDATE

chapter |2 pages

Evans v Hughes [1972] 1 WLR 1452 (DC)

chapter |1 pages

INDEX

chapter |1 pages

Sourcebook on Criminal Law

chapter |1 pages

Index

chapter |1 pages

Sourcebook on Criminal Law

chapter |1 pages

Index

chapter |1 pages

Sourcebook on Criminal Law

chapter |1 pages

Index

chapter |1 pages

Sourcebook on Criminal Law

chapter |1 pages

Index

chapter |1 pages

Sourcebook on Criminal Law

chapter |1 pages

Index

chapter |1 pages

Sourcebook on Criminal Law

chapter |1 pages

Index

chapter |1 pages

Sourcebook on Criminal Law