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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 |
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[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 |
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[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 |
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[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. |
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. |
|
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 |
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[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. |
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[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. |
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[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. |
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[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. |
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[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. |
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[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 |
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[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 |
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^[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) |
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[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 |
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[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 |
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[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]. |
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[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. |
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[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 |
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^[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
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[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 |
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[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. |
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[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 |
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^[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 |
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[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. |
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[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 |
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[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. |
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[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 |
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[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 |
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[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 |
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[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 |
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[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 |
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[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) |
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[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 |
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[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 |
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"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." |
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[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] |
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[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 |
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[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 |
