Bournemouth and

Poole College

Sixth Form Law

Bournemouth and

 Poole College

Text Only

Privacy & cookies

Change Text Size

Sixthform logo

Cases - defences - mistake

Sixthform logo

Home | Dictionary | Past papers | Cases | Modules | Exam dates  | National Exam Results | What's new?

Google logo  

 

Appleyard, R v (1985) CA
Arrowsmith, R v (1974) CA
Attorney General's Ref (No. 1 of 1983) [1985] QBD
B (a minor) v DPP [2000] HL
Beckford, R v (1988) PC
Blake v DPP (1993) DC
Browne, R v [1973]
Chase Manhattan Bank NA v Israel - Briitish Bank (London) Ltd (1981) Goulding J
Church, R v (1965) CA
Clegg, R v [1995] HL
Collins, R v [1973] QBD
Denton, R v (1980) CA
Evans v Hughes [1972] QBD
Fotheringham, R v (1989) CA
Gilks, R v [1972] CA
Grant v Borg (1982)
Hall, R v [1972] CA
Hart, Secretary of State for Trade and Industry v (1982)
Hill and Hall (1989) CA
Hunt, R v (1977) CA
Huskinson, DPP v [1988] QBD
Jaggard v Dickinson (1980) QBD
Lloyd, R v (1992) QBD
Morgan, R v (1976) HL
Morrow Geach and Thomas, R v (1994)
Moynes v Coopper (1956) QBD
O’Grady, R v (1987) CA
Owino, R v [1995] CA
Reid, R v (1973) CA
Scarlett, R v (1993) CA
Shadrokh-Cigari, R v [1988] CA
Shimmen, Chief Constable of Avon and Somerset Constabulary v (1986) QBD
Smith (DR), R v (1974) CA
Thabo Meli v R (1954) PC
Theft Act Sec 5 (4)
Tolson, R v (1889)
Wain, R v [1995] CA
Williams (Gladstone), R v (1984)
 

Aitken, Bennett, Barson, R v (1992) CA

^[Assault – Sec 20 an offence of basic intent - consent by conduct therefore intoxication not a defence] 
D's RAF officers at a party at the completion of their flying training. They drank a lot. There was some horseplay that was treated it as a joke.

 

D's set fire to V's fire resistant suit. In his drunken state he could only resist weakly. Flames flared up rapidly and although the appellants took immediate action to put out the fire but G was severely burned. 

 

Held:
Section 20 not an offence of specific intent.

Therefore drunkenness is no defence to the forming of the intent necessary.

 

D’s would have acted maliciously if they had foreseen that their actions would result in injury to V or would have foreseen injury but for drunkenness. 

 

A victim can give effective consent to the risk of accidental injury in the course of rough undisciplined play.

 

Moreover, if D honestly but mistakenly believed that V had consented (or in this case, would have so believed had they not been intoxicated), that too would be a defence.

 

Not Guilty of GBH

Appleyard, R v (1985) CA

[Mistake by D – Criminal Damage - property of another – mistake as to who is the owner]
D, the managing director of a company set fire to the company’s premises


Held:
He was not the owner or "in effect" the owner of the premises and he knew it.

 

Guilty

Arrowsmith, R v (1974) CA

[Crime - Mistake as to law by D]
D distributed leaflets to British soldiers. Previously the DPP had declined to prosecute. He thought this was all right.

Held
: Guilty of inciting disaffection. Mistake of law would not avail.


Guilty

Attorney General's Ref (No. 1 of 1983) [1985] QBD

[Mistake by another – Theft - owner retains an interest in property transferred by mistake - ]
D a policewoman kept overpaid wages


Held
: The mistake was the belief that the policewoman had worked on a particular day and was entitled to wages and overtime, when in fact she had not so worked.


Not guilty, but would now.

B (a minor) v DPP [2000] HL

 

Red triangle indicating important information

 

 

Whole case here

[General defences – mistake by D – general rules - need for subjective test]
D aged 15 years, sat next to a girl aged 13 years on a bus in Harrow. He asked the girl several times to perform oral sex with him. She repeatedly refused. He was charged with inciting a girl under 14 to commit an act of gross indecency contrary to section 1(1) of the Indecency with Children Act 1960.

He claimed that he had believed the girl to be over 14


Held
: In a number of recent cases in which a defence of honest but mistaken belief had been raised, the courts had placed new emphasis on the subjective nature of the mental element. As a matter of principle, this "honest belief" approach was preferable.

By definition, the mental element in a crime was concerned with a subjective state of mind.

"Is there here a compellingly clear implication that Parliament should be taken to have intended that the ordinary common law requirement of a mental element should be excluded in respect of the age ingredient of the new offence? Thus far, having regard especially to the breadth of the offence and the gravity of the stigma and penal consequences which a conviction brings, I see no sufficient ground for so concluding."


Not guilty

The law will never require that the mistake have been reasonable, provided it was honestly held and Tolson is now bad law.

Beckford, R v (1988) PC

 

 

 

 

Whole case here

[Mistake – the effect of mistake - mistake can be pleaded]
D a Pc shot dead man running from rear of house, following a domestic.

Held:
D is to be judged on the facts, as he believed them to be. Self-defence can be pre-emptive, force required to be reasonable, as he believes necessary.

 

Not guilty

Blake v DPP (1993) DC

[Crime – mistake by D – belief he had a defence]
D, a vicar wrote a biblical quotation on a concrete pillar to protest against the Gulf War. He claimed to have the consent of God.

Held:
(1) Divine command is not a lawful excuse under the common law.
(2) The act was not capable of protecting property in the Gulf States, as it was too remote.
(3) Defence of necessity or duress unsuccessful as divine command did not, objectively speaking, create an immediate danger or fear of danger.

Guilty of criminal damage.

Browne, R v [1973]

[Mistake – a subjective test]

Lowry LJ

"if a police officer is acting lawfully and using only such force as is reasonable in the circumstances...self defence is not available as a defence”.

What is reasonable is judged on the basis of matters as the D believed them to be, whether or not this belief was reasonable in itself. 

The test is a subjective test; the question is what that particular D did believe.  It is not an objective test; what they should have believed or what a reasonable person would have believed.

Chase Manhattan Bank NA v Israel - Briitish Bank (London) Ltd (1981) Goulding J

[Mistake by another – Theft - owner retains an interest in property transferred by mistake - ‘Chase Manhattan Principle’]
X bank, by mistake paid $2 million to the Y bank for the account of the Z hank which subsequently went into liquidation.


Held
: Goulding J;
A person who pays money (or, presumably. delivers any property) to another under a mistake of fact retains an equitable interest in the money. Accordingly the X bank was entitled to the restoration of the whole of the money.

Although doubted this case has subsequently been followed (see Shadrokh-Cigari) and is known as the ‘Chase Manhattan Principle’ If this decision is correct, and it appears to have met with approval, it would seem that s 5 (4) was strictly unnecessary.

Church, R v (1965) CA

 

Red triangle indicating important information

[Mistake – the effect of mistake – unlawful and dangerous act manslaughter – the unlawful act must be objectively dangerous]
D took V to a van for sexual purposes. V mocked D and slapped him D knocked V unconscious. Unable to revive her he panicked and threw her into a river. V drowned.

Held: D's conduct amounted to a series of acts, which culminated in her death and thus constituted manslaughter.

Edmund Davies:

'an unlawful act causing the death of another cannot, simply because it is an unlawful act, render a manslaughter verdict inevitable. For such a verdict inexorably to follow, the unlawful act must be such as all sober and reasonable people would inevitably recognise must subject the other person to, at least, the risk of some harm resulting therefrom, albeit not serious harm.'

”A grosser case of criminal negligence it would be difficult to imagine.”
 

Guilty of manslaughter.

Clegg, R v [1995] HL

[Mistake - as to force - self-defence]
D fired several shots at a car whilst he was on check point duty in Northern Ireland. The car was approaching the checkpoint at speed and did not appear to be going to stop. One of the passengers was killed. Clegg was charged and convicted of murder.

It was argued that the House should make new law by creating a new qualified defence - available to a soldier or police officer acting in the course of his duty - of using excessive force in self-defence, or to prevent crime, or to effect a lawful arrest.  By doing so it would reduce murder in such cases to manslaughter.

 

Held: Lord Lloyd, whilst not averse to judicial law-making - citing R v R as a good example of it – said that he had no doubt that they should abstain from law-making in the instant case since the reduction of murder to manslaughter was essentially a matter for Parliament, and not the courts.

The issue of self defence (and therefore excessive force) did not strictly arise in this case as when the shot that killed the girl was fired, the vehicle in which she was travelling had passed Clegg. However, they did review the law on excessive force.

The Home Office released Clegg which sparked off several riots in Northern Ireland at the time.

 

D’s conviction was later quashed on different grounds.

Collins, R v [1973] QBD

 

Red triangle indicating important information

[Mistake by another – Burglary invitation to enter given my mistake]
D went past a house where he knew a young lady lived. He climbed a ladder up to her window and peered in. She was lying naked on the bed, which was near the window. Collins descended the ladder, took off all his clothes, except his socks, and climbed back up the ladder. As he reached the window, the young lady woke up saw a naked man with an erect penis and, thinking he was her boyfriend invited him in; they then had sexual intercourse. She then realised that it was not her boyfriend. Collins was convicted of burglary.

 

If Collins all along intended to have sexual intercourse with the young lady, should it have been considered whether or not he was exceeding the permission she gave when she invited him in? (It is possible, however, that she invited him in for sexual intercourse as she saw "a naked male with an erect penis";. It is questionable whether this would have afforded a defence if Collins had realised her mistake about his identity.)


Held
: It was accepted that an invitation from the young lady would have been sufficient to make Collins’s entry not trespassory and so consideration should have been given to when her invitation was made, that is, whether he was outside the building at that time or not.

 

Presumably someone could override such permission with a greater interest in the building in question.


Not guilty

Denton, R v (1980) CA

 

Red triangle indicating important information

[Mistake - Criminal damage – Mistake by D - mistake as to consent – even tainted with fraud]
D set fire to machinery at the cotton mill where he worked. The fire also damaged the mill. He claimed that the owner had consented because the owner had asked him to set fire to the machinery in order to make an insurance claim. 

Held
:

"…The fact that somebody may have had a dishonest intent … cannot turn what was not originally a crime into a crime. There is not unlawfulness under the … Criminal Damage Act 1971 … in burning a house. It does not become unlawful because there may be an inchoate attempt to commit fraud contained in it; that is to say it does not become a crime under the Act"


Not guilty

Evans v Hughes [1972] QBD

^[Mistake - any threat must be "imminent" before it could ground a reasonable excuse]

D carried an offensive weapon (a short metal bar) in the street, for self-protection. He had been set upon by three men about seven days before and wanted to be prepared if he was attacked again.

 

Held: The bar was an offensive weapon

For the defence of reasonable excuse to be successful there had to be an imminent particular threat, not the constant carriage of an offensive weapon on account of some enduring threat or danger.

 

Not guilty (the case was borderline but it did not create an authority for carrying offensive weapons)

Fotheringham, R v (1989) CA

[Mistake - intoxication – voluntary starting drinking – rules of voluntary intoxication apply throughout – mistake is judged by sober man]
D raped the babysitter after arriving home with his wife.  Expecting to be returning late told the baby-sitter to sleep in their bed.  When the couple returned home the husband, got into the bed and raped the baby-sitter.  His defence was that he was drunk and thought he was in bed with his wife.

 

Held: Intoxication that is self-induced is no defence to rape. Sober person would not have made that mistake.

 

Guilty

Gilks, R v [1972] CA

[Mistake by another in property cases – dishonesty]
D received £120 from his bookmaker who mistakenly thought that D had bet on the winner, when in fact he had bet on a loser. D realised the mistake at once, but said nothing and kept the money.


Held
: The jury clearly disbelieved his claim that he did not think he was acting dishonestly.


Guilty

Grant v Borg (1982)

[Mistake – the effect of mistake – ignorance of law no defence]
D remained in UK beyond the time limit granted.

 

Held: To argue that “knowingly” in a criminal statute required not merely knowledge of the facts but also knowledge of the relevant law, would be revolutionary and ... wholly unacceptable.’

 

Not guilty [on other grounds].

Hall, R v [1972] CA

[Mistake by another – Theft - property obtained by mistake of V]
D, Travel agents took money from customers and then failed to arrange the promised holidays, using the money for their own purposes.


Held
: The jury had not been asked to decide whether D was under an obligation to account to the customers for the use of their money, or whether they had merely failed to deliver the services for which the customers had paid outright.


Not guilty of theft.

Hart, Secretary of State for Trade and Industry v (1982)

[Mistake – ignorance of law – OK if statute permits – only applies to mistake as to civil law]
D acted as auditor of two companies of which he was director.

 

Held: Under the statute, a person in his position must be aware of the statutory restrictions. He was entitled to rely on ignorance of the law as a defence, in contrast to the usual practice and the usual rule. The statute gave him that right.

 

Not guilty

Hill and Hall (1989) CA

 

Red triangle indicating important information

^[Mistake by D - Criminal damage – belief of lawful excuse]
DD were in possession of a hacksaw blade with intent to damage property. Their intention was to cut the fence of a US naval base in England. They were part of a CND campaign. They had an honest belief that the damage was justified to protect other property.

In the event of war, the base would be the subject of a nuclear attack damage would occur to the surrounding area, including their own property. 

Held:
DD's acts would be too remote from the eventual harm they were protecting the property from.


Guilty

Hunt, R v (1977) CA

[Mistake by D – criminal damage – in order to protect property – objective meaning]
D, who assisted his wife who was a warden of a block of flats, set fire to some bedding in order to demonstrate that the fire alarm was not working.


Held:
This was done to draw attention to a problem, to protect property.


Guilty

Huskinson, DPP v [1988] QBD

[Mistake by D - Theft – 5(3) obligation must be a legal one - moral or social obligation is not sufficient]

D spent a housing benefit cheque from the DHSS on himself instead of on his rent.

 

Held: D was under no legal obligation to use that money in any particular way.

 

Not guilty of theft.

Jaggard v Dickinson (1980) QBD

 

Red triangle indicating important information

[Mistake by D – okay in Criminal Damage - intoxicated mistake – a drunken belief can be an honest belief]
D broke into a house when she was drunk. She thought the house belonged to her friend. If the house had belonged to her friend, the friend would have consented to her breaking in.

Under the Act if she believed that the person … whom she believed to be entitled to consent to the destruction of . . . the property . . . would have so consented she would have a lawful excuse.


Held
: The offence was one of basic intent, but Parliament specifically intended the defence to be subjective.

Therefore, the correct test is what the defendant's actual state of belief was, not the state of belief that ought to have existed.

The defendant has an honest belief if is honestly held even if it is a drunken belief.


Not guilty of Criminal Damage

Lloyd, R v (1992) QBD

 

Red triangle indicating important information

^[Mistake by D - Criminal damage – mistake as to law]
D parked his car in a private car park. He did not have permission. The car was clamped. D removed the clamp by damaging the padlocks. He did not pay the levy, D claimed there was a trespass to his property and so he had lawful authority to cut the padlocks off.


Held: D consented to the risk of his car being clamped. He had no complaint when it occurred. At worst, he had suffered a civil wrong, the remedy for which was through the civil courts. The defendant should only contemplate self-help when there was no other reasonable alternative. D had no lawful excuse for causing criminal damage.


Guilty

Morgan, R v (1976) HL

[Mistake – the effect of mistake of facts - honest mistake not OK in other situations]
D invited several companions to have sexual intercourse with his wife. Told them that her resistance would not constitute lack of consent but rather enhanced her satisfaction.

 

Held: The companions were guilty of rape. Mistake as to V’s consent must be honest but need not be reasonable. No either room for a ‘defence’ of honest belief or mistake.

 

Guilty of aiding and abetting rape.

Morrow Geach and Thomas, R v (1994)

[Mistake – the effect of mistake – sincere belief is not enough]
Three defendants planned and carried out an anti-abortion demonstration outside a clinic. Caused severe distress to patients.

 

Held: Notwithstanding the sincere and deeply held opinions of the defendants. The three were guilty of unreasonable disorderly conduct.

 

Guilty of offences under the Public Order Act 1986

Moynes v Coopper (1956) QBD

[Mistake by another - Theft – owner retains an interest in property transferred by mistake]
D, a labourer employed by P. was given an advance of pay by the site agent amounting to £6 19s. 6d. Unaware that this advance had been made, P’s wages clerk paid D the full weekly wage of £7 3s. 4d. and D dishonestly kept all of the money.


Held
: In law the whole of the £7 3s. 4d. belongs to D. The wages clerk made a mistake but this did not prevent ownership of all the money passing to D. The clerk intended to pay the full amount, and he was authorised as P’s wages clerk to pay wages.

The case is now covered by s 5 (4) and D steals the excess payment if he dishonestly appropriates it: although D becomes the owner of the money he is under a legal obligation, at the very least, to repay the value of the excess payment.

O’Grady, R v (1987) CA

 

Red triangle indicating important information

[Mistake by D - Intoxication – voluntary starting drinking – rules of voluntary intoxication apply throughout – the mistake is judged by sober man – so not OK]]
D was drunk when he struck and cut V, causing his death. He mistakenly believed V was attacking him with a glass.

 

Convicted by the jury of manslaughter


Held
:

(1) So far as self-defence was concerned, reliance could not be placed on a mistake of fact induced by voluntary intoxication.

(2) Per curiam: A sober man who mistakenly believes he is in danger of immediate death should be acquitted if his reaction in killing his supposed assailant was a reasonable one.

Guilty of manslaughter

Also here

Owino, R v [1995] CA

 

Red triangle indicating important information

[Mistake – mistake as to the amount of force required]
D a senior registrar in microbiology.

1.     Fractured his wife’s wrist

2.     Gave her a black eye

3.     Hit her about the head causing possible damage to her eardrum

4.     Threw her out of the flat injuring her right thumb

5.     Lifted her up and put her out of the house.

In relation to counts 3 and 4, self-defence was raised.

 

Held: A person may only use such force as is (objectively) reasonable in the circumstances as he (subjectively) believes them to be and is not entitled to use the degree of force which he believes to be reasonable.

 

This case has made it clear that although the accused is entitled to be judged on the facts as he believed them to be (the subjective element), it is the jury which decides how much force is reasonable (the objective element).

 

The jury has to decide whether the force used was reasonable in the circumstances, as he believed them to be.

 

A belief that the degree of force he was using was reasonable will not enable him to do what he did.  If that argument was correct, then it would justify, for example, the shooting of someone who was merely threatening to throw a punch, on the basis that the D honestly believed, although unreasonably and mistakenly, that it was justifiable for him to use that degree of force.  That clearly is not, and cannot be, the law.

 

The burden was on the Crown to disprove self-defence.

 

Guilty

Also here

Reid, R v (1973) CA

[Mistake by D as to law – general rules - belief that police conduct illegal no defence]
D refused to provide a specimen of breath for a police breathalyser in the belief that in the circumstance the PC had not power to demand it.


Held:
In these circumstances such a belief did not afford a defence.

Guilty

Scarlett, R v (1993) CA

[Mistake – the effect of mistake as to force required]
D, a publican, ‘bundled’ a drunken customer towards the exit of the pub. Caused him to fall backwards down some steps. He died.

 

Held: The degree of force used was plainly no more than was called for by the circumstances, as he believed them to be. He believed the circumstances called for the degree of force used. Not to be convicted even if his belief is unreasonable.

 

Not guilty of unlawful act manslaughter

Shadrokh-Cigari, R v [1988] CA

[Mistake by another - Theft – owner retains an interest in property transferred by mistake]
D, obtained bank drafts from an account that had been credited with £286,000, instead of £286. It was a child’s account and he was the child’s guardian. He obtained all but £21,000 before he was detected.


Held:
The bank retained an equitable interest and therefore ‘belonged to another’.


Guilty

Shimmen, Chief Constable of Avon and Somerset Constabulary v (1986) QBD

[Mistake by D – Criminal Damage - ‘ruling out the risk']
D thought he had ruled out the risk of causing damage to a window when he aimed a martial-art-style kick in its direction, basing his view on his faith in his own skill.


Held:
The evidence did not show that the accused had ruled out all the risk (hence he was still reckless in consciously running a small risk). Appears the risk must be totally ruled out. which is akin to the court saying that mistaken beliefs have to be held with a degree of conviction equal to certainty and admitting of no doubts.


Guilty

This case now doubted by R v G (2003)

Smith (DR), R v  (1974) CA

 

Red triangle indicating important information

[Mistake by D – Criminal Damage – the effect of mistake of facts – honest belief need not be reasonable]
D, during his tenancy built panelling to conceal some wires. He removed the panelling when his tenancy ended.


Held
: Although the property was the landlord’s, D honestly but mistakenly believed the property was his own. If the belief is honestly held, it is irrelevant whether it is a justifiable belief.

Not guilty of criminal damage

Thabo Meli v R (1954) PC

 

Red triangle indicating important information

[Mistake  – the effect of mistake of fact]
D1 and D2 conspired to murder V. Struck V over the head. Believing him dead, they rolled his body over a cliff. V died of exposure while unconscious.

 

Held: D1 and D2 guilty of murder.

 

Guilty

Theft Act Sec 5 (4)

 

Red triangle indicating important information

"Where a person gets property by another's mistake, and is under an obligation to make restoration (in whole or in part) of the property or its proceeds or of the value thereof, then to the extent of that obligation the property or proceeds shall be regarded (as against him) as belonging to the person entitled to restoration, and an intention not to make restoration shall be regarded accordingly as an intention to deprive that person of the property or proceeds."

Tolson, R v (1889)

 

[Mistake – the effect of mistake as to fact  - honest belief]
D remarried five years after last seeing her husband, believing him lost at sea. In fact, he had deserted her and was still alive.

 

Held:  She believed ‘in good faith and on reasonable grounds’ that her husband was dead.

 

Not guilty of bigamy

Doubted in
B (a minor) v DPP [2000] 

Wain, R v [1995] CA

[Mistake in property cases – theft ]
D raised nearly £3000 from various events for the ITV Telethon. He paid the money into his personal bank account and drew on that a cheque in favour of the Telethon, but this and subsequent cheques bounced.


Held
: D had received money on behalf of the charity and had an obligation to hand over the equivalent sum, if not actually the same notes and coins. Instead, he had appropriated the money by using it for his own purposes. Lewis v Lethbridge disapproved.


Guilty

Williams (Gladstone), R v (1984)

 

Red triangle indicating important information

[Mistake – the effect of mistake – of facts – belief does not have to be reasonable]
D saw a man assaulting a youth. The youth was calling for help. The man was in fact affecting a lawful arrest of the youth, albeit falsely claiming to be a police officer. D intervened.

 

Held: He honestly believed that he was preventing an unlawful assault. If the belief was in fact held, its unreasonableness is unimportant. It is irrelevant.

 

Not guilty of assault

 

© 2000-2008 M Souper  Copyright reserved | disclaimer

 Law Weblog | Contact us |

Please visit the FREE Hunger Site