The defendant prison officer appealed against his conviction for misconduct in public office, having been found to have sold information to a journalist.
References: [2016] EWCA Crim 1564
Links: Bailii
Jurisdiction: England and Wales
Last Update: 24 October 2020; Ref: scu.570332
The defendant appealed from his conviction for conspiracy to defraud in connection with the alleged manipulation of the Yen LIBOR.
Held: The appeal failed: ‘the critical issue for the jury’s consideration in this case was whether they believed that the appellant may have been telling the truth when he said that his admissions of dishonesty and LIBOR manipulation in his SOCPA interviews had not been genuine admissions of guilt (and, in particular, dishonesty), but had merely been an opportunistic means of avoiding extradition to the USA. That was the critical issue on which all turned and in respect of which there was not merely the interviews but the contemporaneous recordings which substantiated those interviews. Standing back from the detail, once the objective standard of dishonesty was established as the correct test for the first limb of the Ghosh direction, it is difficult to see how the application of the subjective standard to what the appellant was saying while undertaking these trades could have led to any different conclusion.’
References: [2015] EWCA Crim 1944
Links: Bailii, Bailii
Judges: Lord Thomas of Cwmgiedd CJ, Sir Brian Leveson P and Gloster LJ
Jurisdiction: England and Wales
This case is cited by:
These lists may be incomplete.
Last Update: 16 October 2020; Ref: scu.558975
References: [2016] EWCA Crim 1
Links: Bailii
Jurisdiction: England and Wales
Last Update: 16 October 2020; Ref: scu.558976
Reasons for allowing appeal from conviction of murder
References: [2005] EWCA Crim 3001
Links: Bailii
Jurisdiction: England and Wales
Last Update: 24 September 2020; Ref: scu.236595
Appeal from conviction of possessing a shotgun without a firearm certificate. Investigating officers later being investigated for alleged corruption.
Held: Allowed.
References: [2003] EWCA Crim 686
Links: Bailii
Jurisdiction: England and Wales
Last Update: 24 September 2020; Ref: scu.270131
References: [2009] EWCA Civ 682, [2010] INLR 154
Links: Bailii
Judges: Rix, Wall, Aikens LJJ
Jurisdiction: England and Wales
This case is cited by:
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Last Update: 22 September 2020; Ref: scu.347687
Diplock LJ said: ‘In its criminal jurisdiction, which it has inherited from the Court of Criminal Appeal, the Court of Appeal does not apply the doctrine of stare decisis with the same rigidity as in its civil jurisdiction. If upon due consideration we were to be of opinion that the law had been either misapplied or misunderstood in an earlier decision of this court or its predecessor, the Court of Criminal Appeal, we should be entitled to depart from the view as to the law expressed in the earlier decision notwithstanding that the case could not be brought within any of the exceptions laid down in Young v Bristol Aeroplane Co Ltd as justifying the Court of Appeal in refusing to follow one of its own decisions in a civil case (Rex v Taylor). A fortiori, we are bound to give effect to the law as we think it is if the previous decision to the contrary effect is one of which the ratio decidendi conflicts with that of other decisions of this court or its predecessors of co-ordinate jurisdiction.’
References: [1968] 2 QB 65
Judges: Diplock LJ
Jurisdiction: England and Wales
This case cites:
This case is cited by:
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Last Update: 22 September 2020; Ref: scu.182383
Appeal from whole life sentence on conviction of attempted rape, wounding with intent, and causing a person to engage in sexual activity without her consent. He had been deported from Australia after release from prison for murder and very serious sex assaults. It was conceded that he satisfied the dangerousness criteria.
Held: Taken on their own, these offences would not justify a whole life term. However, these crimes were not isolated. They were committed, shortly after his return to the community, by a man with a lengthy criminal record which included offences of the rape of, and the murder of, elderly females. The punitive element was set at 20 years with a minimum of ten years to be served.
References: [2010] 1 Cr App Rep (S) 11, [2009] Crim LR 665
Links: Bailii
Judges: Lord Judge LCJ
Statutes: Criminal Justice Act 2003 225
Jurisdiction: England and Wales
Last Update: 22 September 2020; Ref: scu.347689
References: [2009] EWCA Crim 1334
Links: Bailii
Jurisdiction: England and Wales
Last Update: 22 September 2020; Ref: scu.347690
The defendant appealed against his conviction, saying that his counsel and solicitors had withdrawn at the last moment on the grounds of professional embarrassment, the defendant having altered his instructions. New lawyers were unwilling to assist saying that they had no time properly to prepare the case.
Held: The judge was right to have refused a lengthy adjournment. The defendant had himself procured the difficulty, but an adjournment of a day or so in order to take stock and, if necessary, allow new representatives to be properly instructed is another thing. If that is what fairness requires, that is what needs to happen. There is a danger that pressing on regardless may lead to errors being made and, importantly, to a situation where justice is not seen to be done.
Whilst a legal representative could not be obliged to continue in a case where he complained of professional embarrassment, where that resulted only from the lateness of instructions, he would normally be expected to do the best he could in the circumstances.
The court discussed counsel’s duty: ‘The correct meaning of the phrase ‘acting on instructions’, as it applies to the professional responsibility of the advocate in any criminal court, is sometimes misunderstood, even by counsel. Neither the client, nor if the advocate is a barrister, his instructing solicitor, is entitled to direct counsel how the case should be conducted. The advocate is not a tinkling echo, or mouthpiece, spouting whatever his client ‘instructs’ him to say. In the forensic process the client’s ‘instructions’ encompass whatever the client facing a criminal charge asserts to be the truth about the facts which bring him or her before the court. Those instructions represent the client’s case, and that is the case which the advocate should advance. In practical terms, that will often mean that prosecution witnesses will be cross-examined on the basis that they are lying or mistaken, or have misunderstand or misinterpreted something said or done by the defendant; however there is almost always some evidence advanced by the prosecution which, on the basis of the client’s instructions, is not in truth in issue at all, either directly, or indirectly. Some decisions, of course, must be made not by the advocate, but by the defendant personally, for example, and pre-eminently, the plea itself, and in the course of the trial, the decision whether or not to give evidence. ‘
Sir Igor Judge P discussed the effect of the regulations when considering an application to transfer a Legal Aid Order: ‘The purpose of this part of the Regulations is to ensure that the client does not manipulate the system, seeking to change his lawyers for dubious reasons which include, but are not limited to, the fact that the lawyer offers sensible but disagreeable advice to the client. Claims of a breakdown in the professional relationship between lawyer and client are frequently made by defendants, and they are often utterly spurious. If the judge intends to reject an application for a change of legal representative he may well explain to the defendant that the consequence may be that the case will continue without him being represented at public expense. The simple principle remains that the defendant is not entitled to manipulate the legal aid system and is no more entitled to abuse the process than the prosecution. If he chooses to terminate his lawyer’s retainer for improper motives, the court is not bound to agree to an application for a change of representation. What we find in practice in most cases is that courts faced with this problem are usually prepared to agree to at least one change of representative, provided they are proposed in reasonable time before the trial, and before substantial costs have already been expended in the preparation of the defence case. In the end, however, the ultimate decision for the court is case and fact specific, and it does not follow from the repeated [incantation] of the mantra ‘loss of confidence’ that an application will be granted.’
References: [2007] EWCA Crim 2379, Times 07-Nov-2007, [2008] 1 WLR 1209, [2008] 1 All ER 547
Links: Bailii
Judges: Sir Igor Judge P, Pitchers J, Openshaw J
Jurisdiction: England and Wales
This case cites:
This case is cited by:
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Last Update: 22 September 2020; Ref: scu.260057
Appeal from conviction of murder – whether a fair trial after a withdrawal by his counsel at the conclusion of his evidence. Counsel had said they were professionally embarrassed by new instructions.
Held: The appeal succeeded. The judge had faced a difficult situation but the allegations against the appellant were extremely grave. It was a murder case in which he faced a sentence of life imprisonment with a lengthy minimum term which might well mean that he would spend the remainder of his life in prison. The issues were, in the judge’s own view, ‘massively complicated’.
Moreover the judge found that the appellant had not deliberately engineered a situation in which his lawyers would have to withdraw. On the contrary, he found that this was something which the appellant had not even contemplated.
Proceeding would allow no further legal input from the defence and the instruction of new lawyers would have meant the loss of a day or two, but would have enabled them, with the appellant’s instructions and the assistance of the existing defence team’s notes of evidence, either to make a closing speech for the appellant or to assist him to prepare a speech to make himself. It would also have ensured appropriate defence input into the judge’s legal directions and route to verdict. This is not merely an academic point.
References: [2019] EWCA Crim 1736
Links: Bailii
Judges: Lord Justice Males
Jurisdiction: England and Wales
This case cites:
These lists may be incomplete.
Last Update: 21 September 2020; Ref: scu.654023
References: (1888) 22 QBD 23, [1886-90] All ER Rep 133
Coram: Stephen J, Baron Pollock, AL Smith J
Ratio: The defendant knew that he had gonorrhea. He had intercourse with his wife, and infected her. She would not have consented had she known. He appealed convictions for assault and causing grievous bodily harm.
Held: ‘The question in this case is whether a man who knows that he has gonorrhea, and who by having connection with his wife, who does not know it, infects her, is or is not guilty under s20 . . or under s47 of the same [1861] Act. Section 20 punishes everyone who ‘unlawfully and maliciously inflicts any grievous bodily harm upon any person.’ Section 47 punished everyone who is convicted of an ‘assault occasioning actual bodily harm to any person . .’ Is there an infliction of bodily harm either with or without any weapon or instrument?’ I think there is not for the following reasons.
The words appear to me to mean the direct causing of some grievous injury to the body itself with a weapon, as by a cut with a knife, or without a weapon, as by a blow with the fist, or by pushing a person down. Indeed, though the word ‘assault’ is not used in the section, I think the words imply an assault and battery of which a wound or grievous bodily harm is the manifest immediate and obvious result . . It is further illustrated by reference to 14 and 15 Vict. C19 sect 4, of which the present section is a re-enactment. Section 4 of the earlier Act begins with the preamble, ‘And whereas it is expedient to make further provision for the punishment of aggravated assaults,’ and then proceeds in the words of the present section, with a trifling and unimportant difference in their arrangement.
Infection by the application of an animal poison appears to me to be of a different character from an assault. The administration of poison is dealt with under s24, which would be superfluous if poisoning were an ‘infliction of grievous bodily harm either with or without a weapon or instrument.’ The one act differs from the other in the immediate and necessary connection between a cut or a blow and the wound or harm inflicted, and the uncertain and delayed operation of the act by which infection is communicated. If a man by the grasp of the hand infects another with smallpox, it is impossible to trace out in detail the connection between the act and the disease, and it would, I think, be an unnatural use of language to say that a man by such an act ‘inflicted’ smallpox on another . . .
Is the case, then, within s37, as ‘an assault occasioning actual bodily harm?’ The question here is whether there is an assault. It is said there is none, because the woman consented, and to this it is replied that fraud vitiates consent, and that the prisoner’s silence was a fraud. Apart however from this, is the man’s concealment of the fact that he was infected such a fraud as vitiated the wife’s consent to the exercise of his marital rights, and converted the act of connection into an assault? It seems to me that the proposition that fraud vitiates consent in criminal matters is not true if taken to apply in the fullest sense of the word, and without qualifications. It is too short to be true, as a mathematical formula is true.’ As to the issue of consent to an assault, per Pollock B: ‘The second count charges an assault … I should be inclined to hold that … an assault must in all cases be an act which in itself is illegal and … I cannot assent to the proposition that there is any true analogy between the case of a man who does an act which in the absence of consent amounts to an indecent assault upon his niece, or any woman other than his wife, and the case of a man having connection with his wife. In the one case the act is, taken by itself, in its inception an unlawful act, and it would continue to be unlawful but for the consent. The husband’s connection with his wife is not only lawful, but it is in accordance with the ordinary condition of married life. … The wife as to the connection itself is in a different position from any other woman, for she has no right or power to refuse her consent.’
Stephen J said: ‘If a man laid a trap for another into which he fell after an interval the man who laid it would during the interval be guilty of an attempt to assault and of an actual assault as soon as the man fell in.’
However: ‘It seems to me that the proposition of fraud vitiates consent in criminal matters is not true if taken to apply the fullest sense of the word, and without qualification.’ and ‘Many seductions would be rapes, and so might acts of prostitution procured by fraud, as for instance by promises not intended to be fulfilled.’
. . And: ‘Consent to a surgical operation or examination is not a consent to sexual connection or indecent behaviour. Consent to connection with a husband is not consent to adultery.
I do not think that the maxim that fraud vitiates consent can be carried further than this in criminal matters. It is commonly applied to cases of contract, because in all cases of contract the evidence of a consent not procured by force or fraud is essential, but even in these cases care in the application of the maxim is required, because in some instances suppression of the truth operates as fraud, whereas in others at least a suggestion of falsehood is required. The act of intercourse between a man and woman cannot in any case be regarded as the performance of a contract.’
. . and ‘The woman’s consent here was as full and conscious as consent could be. It was not obtained by any fraud as to the nature of the act or as to the identity of the agent.’
Wills J said: ‘That consent obtained by fraud is no consent at all is not true is a general proposition either in fact or in law. If a man meets a woman in the street and knowingly gives her bad money in order to procure her consent to intercourse with him, he obtains her consent by fraud, but it would be childish to say that she did not consent. In respect of a contract, fraud does not destroy consent. It only makes it revocable.’
Statutes: Offences against the Persons Act 1861 20 46
Jurisdiction: England and Wales
This case cites:
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This case is cited by:
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Leading Case
Last Update: 26 May 2020
Ref: 182069
r_coneyQBD1882
References: (1882) 8 QBD 534
Coram: Cave J, Stephen J, Hawkins J, Lord Coleridge CJ, Lopes J, Huddleston B
Ratio: A public prize-fight was unlawful. Spectators were tried at Berkshire County Quarter Sessions with common assault. The Chairman of Quarter Sessions directed the jury to convict the spectators of common assault on the basis that having stayed to watch the fight, they encouraged it by their presence.
Held: Each protagonist was guilty of assaulting the other and a number of bystanders were held to have encouraged, and thus to have been guilty of aiding and abetting, the assaults of both. However, mere voluntary presence at a fight did not as a matter of law necessarily render those present guilty of assault. The court was not saying that the jury could not have convicted the spectators on the basis merely of their presence. The objection of the majority was that the case had been withdrawn from the consideration of the jury.
Cave J said: ‘The true view is, I think, that a blow struck in anger, or which is likely or is intended to do corporal hurt, is an assault, but that a blow struck in sport, and not likely, nor intended to cause bodily harm, is not an assault, and that an assault being a breach of the peace and unlawful, the consent of the person struck is immaterial.’
Hawkins J said: ‘The cases in which it has been held that persons may lawfully engage in friendly encounters not calculated to produce real injury to or to rouse angry passions in either, do not in the least militate against the view I have expressed; for such encounters are neither breaches of the peace nor are they calculated to be productive thereof, but if, under colour of a friendly encounter, the parties enter upon it with, or in the course of it form, the intention to conquer each other by violence calculated to produce mischief, regardless whether hurt may be occasioned or not, as, for instance, if two men, pretending to engage in an amicable spar with gloves, really have for their object the intention to beat each other until one of them be exhausted and subdued by force, and so engage in a conflict likely to end in a breach of the peace, each is liable to be prosecuted for assault.’ and
‘whatever may be the effect of a consent in a suit between party and party, it is not in the power of any man to give an effectual consent to that which amounts to, or has a direct tendency to create, a breach of the peace; so as to bar a criminal prosecution. In other words, though a man may by consent debar himself from his right to maintain a civil action, he cannot thereby defeat proceedings instituted by the Crown in the interests of the public for the maintenance of good order; . . . He may compromise his own civil rights, but he cannot compromise the public interests.’
Lord Coleridge CJ: ‘I conceive it to be established, beyond the power of any argument however ingenious to raise a doubt, that as the combatants in a duel cannot give consent to one another to take away life, so neither can the combatants in a prize-fight give consent to one another to commit that which the law has repeatedly held to be a breach of the peace. An individual cannot by such consent destroy the right of the Crown to protect the public and keep the peace.’
Stephen J said: ‘The principle as to consent seems to me to be this: When one person is indicted for inflicting personal injury upon another, the consent of the person who sustains the injury is no defence to the person who inflicts the injury, if the injury is of such a nature, or is inflicted under such circumstances, that its infliction is injurious to the public as well as to the person injured. But the injuries given and received in prize-fights are injurious to the public, both because it is against the public interest that the lives and the health of the combatants should be endangered by blows, and because prize-fights are disorderly exhibitions, mischievous on many obvious grounds. Therefore the consent of the parties to the blows which they mutually receive does not prevent those blows from being assaults.
In cases where life and limb are exposed to no serious danger in the common course of things, I think that consent is a defence to a charge of assault, even when considerable force is used, as, for instance, in cases of wrestling, single-stick, sparring with gloves, football, and the like; but in all cases the question whether consent does or does not take from the application of force to another its illegal character, is a question of degree depending upon circumstances.’
Lopes J said: ‘I understand the ruling of the Chairman to amount to this, that mere presence at a prize fight, unexplained, is conclusive proof of aiding and abetting, even if there had been no evidence that the person or persons so present encouraged or intended to encourage the fight by his or their presence. I cannot hold, as a proposition of law, that the mere looking on is ipso facto a participation in or encouragement of a prize fight. I think there must be more than that to justify conviction for an assault. If, for instance, it was proved that a person went to a prize fight knowing it was to take place, and remain there for some time looking on, I think that would be evidence from which a jury might infer that such person encouraged and intended to encourage the fight by his presence. In the present case the three prisoners were merely seen in the crowd, were not seen to do anything, and there was no evidence why or how they came there, or how long they stayed.’
Huddleston B commented on the direction of the Chairman of Quarter Sessions: ‘If he had told the jury that going to a prize fight to see the combatant strike each other, and be present when they did so, was evidence from which they might find that the defendants countenanced what was going on, and that therefore they might find them guilty, I should have been disposed to support that ruling. But that is not the effect of his summing up.’
This case is cited by:
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Leading Case
Last Update: 17 March 2019
Ref: 182285
References: [1989] 88 Cr App Rep 261
Coram: Glidewell LJ
Ratio: Glidewell LJ discussed the offence under section 5 where words used toward the police officer were the basis of the charge: ‘Very frequently words and behaviour with which police officers will be wearily familiar will have little emotional impact on them save that of boredom. It may well be that, in appropriate circumstances, justices will decide (indeed they might decide in the present case) as a question offact that the words and behaviour were not likely in all the circumstances to cause harassment, alarm or distress to either of the police officers. That is a question of fact for the justices to be decided in all the circumstances, the time, the place, the nature of the words used, who the police officers are, and so on.’
Statutes: Public Order Act 1986 5(1)(a)
This case is cited by:
(This list may be incomplete)
Last Update: 12 March 2019
Ref: 449712
References: [1970] AC 618
Coram: Lord Devlin
Ratio: Lord Devlin said: ‘Their Lordships do not understand what is meant by the phrase ‘evidential burden of proof’. They understand, of course, that in trial by jury a party may be required to adduce some evidence in support of his case, whether on the general issue or on a particular issue, before that issue is left to the jury. How much evidence has to be adduced depends upon the nature of the requirement. It may be such evidence as, if believed and left uncontradicted and unexplained, could be accepted by the jury as proof. It is doubtless permissible to describe the requirement as a burden, and it may be convenient to call it an evidential burden. But it is confusing to call it a burden of proof. Further, it is misleading to call it a burden of proof, whether described as legal or evidential or by any other adjective, when it can be discharged by the production of evidence that falls short of proof. The essence of the appellant’s case is that he has not got to provide any sort of proof that he was acting in private defence. So it is a misnomer to call whatever it is that he has to provide a burden of proof . .’
Jurisdiction: Commonwealth
This case is cited by:
(This list may be incomplete)
Last Update: 10 March 2019
Ref: 184321
References: [2017] EWCA Crim 106
Links: Bailii
Ratio:
Jurisdiction: England and Wales
Last Update: 18 February 2019
Ref: 581930
References: [2015] ScotHC HCJAC_48
Links: Bailii
Ratio:
Last Update: 12 March 2018
Ref: 552280
References: [2012] EWCA Crim 281
Links: Bailii
Coram: Hughes LJ, Simon, Lang JJ
Ratio: The defendant appealed against his conviction for murder, saying that he should have been allowed to rely on a plea of dimished responsibillity given the changes to section 2 of the 1957 Act introduced in 2009. He said that his alcoholism should have been treated as explaining his loss of self control and amounting to an abnormality of mind.
Statutes: Homicide Act 1957 82, Coroners and Justice Act 2009 52
Jurisdiction: England and Wales
This case cites:
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This case is cited by:
(This list may be incomplete)
Last Update: 26 September 2017
Ref: 451458
References: [2012] EWCA Crim 319
Links: Bailii
Ratio:
Last Update: 31 May 2017
Ref: 452373
References: [1971] 1 All ER 1077, (1971) 55 Cr App R 223 (PC), [1971] AC 814
Coram: Lord Morris of Borth-y-Gest
Ratio: It is a defence in criminal law to a charge of assault if the defendant had an honest belief that he was going to be attacked and reacted with proportionate force: ‘If there has been an attack so that defence is reasonably necessary, it should be recognised that a person defending himself cannot weigh to a nicety the exact measure of necessary defensive action. If a jury is of the opinion that in a moment of unexpected anguish the person attacked did only what he honestly and reasonably thought was necessary, that should be regarded as most potent evidence that only reasonably defensive action was taken.’
Jurisdiction: England and Wales
This case is cited by:
(This list may be incomplete)
Last Update: 30 May 2017
Ref: 190054
References: [1970] UKPC 31, [1971] 1 All ER 1077, [1971] AC 814, [1971] 2 WLR 831, (1971) 55 Cr App R 223
Links: Bailii
Coram: Lord Morris of Borth-y-Gest, Lord Donovan, Lord Avonside
Ratio: Jamaica – The defendant appealed against his conviction for murder, arguing self defenec.
Held: After setting out the elements of the defence of self-defence, Lord Morris of Borth-y-Gest said: ‘if the prosecution have shown that what was done was not done in self-defence then that issue is eliminated from the case. If the jury consider that the accused acted in self-defence or if the jury are in doubt as to this then they will acquit. The defence of self-defence either succeeds so as to result in an acquittal or it is disproved in which case as a defence it is rejected.’
This case cites:
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This case is cited by:
(This list may be incomplete)
Jurisdiction: Commonwealth
Last Update: 30-May-17
Ref: 444511
References: [1985] AC 905
Ratio:
Jurisdiction: England and Wales
This case is cited by:
(This list may be incomplete)
Last Update: 04 April 2017
Ref: 187644
References: [1985] AC 905, [1984] UKHL 4, [1985] 1 All ER 1025
Links: Bailii
Coram: Lord Bridge of Harwich
Ratio: The defendant appealed against his conviction for murder.
Held: The appeal was allowed and a conviction for manslaughter substituted.
Lord Bridge of Harwich discussed the case of Hyam: ‘But looking on their facts at the decided cases where a crime of specific intent was under consideration, including Hyam . . they suggest to me that the probability of the consequence taken to have been foreseen must be little short of overwhelming before it will suffice to establish the necessary intent.’ In the rare cases in which it might be necessary to direct a jury by reference to foresight of consequences it would be sufficient to ask two questions: ‘First, was death or really serious injury in a murder case (or whatever relevant consequence must be proved to have been intended in any other case) a natural consequence of the defendant’s voluntary act? Secondly, did the defendant foresee that consequence as being a natural consequence of his act? The jury should then be told that if they answer yes to both questions it is a proper inference for them to draw that he intended that consequence.’
Jurisdiction: England and Wales
This case cites:
(This list may be incomplete)
This case is cited by:
(This list may be incomplete)
Last Update: 04 April 2017
Ref: 186623
References: [2000] EWCA Crim 55
Links: Bailii
Ratio:
Last Update: 11 February 2017
Ref: 158705
References: [2010] EWCA Crim 1005
Links: Bailii
Ratio:
Last Update: 09-Nov-16
Ref: 427183
References: [2013] ScotHC HCJAC_148
Links: Bailii
Ratio:
Last Update: 12-Oct-16
Ref: 519289
References: [2013] ScotHC HCJAC_122
Links: Bailii
Ratio:
Last Update: 11-Oct-16
Ref: 516512
References: [2013] ScotHC HCJAC_130
Links: Bailii
Ratio:
Last Update: 11-Oct-16
Ref: 516536
Links: ScotC
Coram: Lord Kirkwood And Lord Penrose And Lord Wheatley
Ratio:
Jurisdiction: Sco
Last Update: 11-Oct-16
Ref: 220080
References: [2013] EWCA Crim 988
Links: Bailii
Ratio:
Last Update: 22-Sep-16
Ref: 511037
References: [2013] EWCA Crim 1025
Links: Bailii
Ratio:
Last Update: 14-Sep-16
Ref: 511035
References: , [1839] EngR 535, (1839) 2 M & Rob 192, (1839) 174 ER 259
Links: Commonlii
Ratio:
Last Update: 03-Sep-16
Ref: 311067
References: [2009] EWCA Crim 732
Links: Bailii
Ratio:
Last Update: 04-Aug-16
Ref: 341589
References: (1968) 52 Cr App R 700, [1969] 1 QB 439, [1968] 3 All ER 442, [1968] EWHC 1 (QB)
Links: Bailii
Coram: The LCJ, James J, Bridge J (dissenting)
Ratio: The defendant was told by a police officer to park up his car. He did so, but stopped with his wheel, trapping the officer’s foot. The magistrates were unable to decide whether the parking on the officer’s foot was deliberate, but agreed that leaving it there had been deliberate.
Held: James J described the distinction between an assault and a battery: ‘For an assault to be committed both the elements of actus reus and mens rea must be present at the same time. The ‘actus reus’ is the action causing the effect on the victim’s mind . . The ‘mens rea’ is the intention to cause that effect.’
The appeal failed. ‘On the facts found the action of the appellant may have been initially unintentional, but the time came when knowing that the wheel was on the officer’s foot the appellant (1) remained seated in the car so that his body through the medium of the car was in contact with the officer, (2) switched off the ignition of the car, (3) maintained the wheel of the car on the foot and (4) used words indicating the intention of keeping the wheel in that position. For our part, we cannot regard such conduct as mere omission or inactivity.
There was an act constituting a battery which at its inception was not criminal because there was no element of intention, but which became criminal from the moment the intention was formed to produce the apprehension which was flowing from the continuing act.’
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This case is cited by:
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Last Update: 03-Aug-16
Ref: 235710
Links: ScotC
Coram: Lord Justice Clerk And Lord Kirkwood And Lord Osborne
Ratio:
Last Update: 30-Jul-16
Ref: 190957
References: (1836) CCR
Ratio:The defendant bit a woman’s nose. He was accused of wounding her. The prosecution argued, using the expression unius est exclusio alterius rule that it was akin to a ‘stab, cut or wound’
Held: The defendant should be acquitted. The words suggested an intention that any injury must be inflicted by means of some weapon and this did not include the use of parts of the body.
Last Update: 23-Jul-16
Ref: 200607
References: (1767) 4 Burr 2073, 98 ER 81
Ratio:The defendant was accused of riot.
Held: Involvement in a riot as a secondary party could be established by showing verbal encouragement of those physically involved at the time.
Last Update: 23-Jul-16
Ref: 272774
References: [2016] EWCA Crim 751
Links: Bailii
Ratio:
Last Update: 21-Jul-16
Ref: 566215
References: [2016] EWCA Crim 742
Links: Bailii
Ratio:
Last Update: 21-Jul-16
Ref: 566216
References: [2016] EWCA Crim 671
Links: Bailii
Ratio:
Last Update: 21-Jul-16
Ref: 565821
References: [2016] NICA 24
Links: Bailii
Ratio:
Last Update: 21-Jul-16
Ref: 565970
References: [2016] NICC 6
Links: Bailii
Ratio:
Last Update: 21-Jul-16
Ref: 566782
References: [1836] 7 C & P 303, [1836] EngR 540, (1836) 7 Car & P 303, (1836) 173 ER 135
Links: Commonlii
Coram: Alderson B
Ratio:A person, deaf and dumb, was to be tried for a capital felony the Judge ordered a Jury to be impanneled, to try whether he was mute by the visitation of God, the jury found that he was so. The jury were then sworn to try whether he was able to plead, which they found in the affirmative, and the prisoner, by a sign, pleaded Not guilty The Judge then ordered the jury to be sworn to try whether the prisoner was ‘now sane or not’; and on this question, his Lordship directed the jury to consider whether the prisoner had sufficieut intellect to comprehend the course of the proceedings, so as to make a proper defence, to challenge any juror he might wish to object to, and to comprehend the details of the evldence, and that if they thought he had not, they should find him not of sane mind. The jury did so, and the Judge ordered the prisoner to be detained.
The court stated the test for whether a defendant was fit to plead. Alderson B said: ‘There are three points to be enquired into:- first, whether the prisoner is mute of malice or not; secondly, whether he can plead to the indictment or not; thirdly, whether he is of sufficient intellect to comprehend the course of the proceedings in the trial so as to make a proper defence – to know that he might challenge any of you [the jury] to whom he may object – and to comprehend the details of the evidence, which in a case of this nature must constitute a minute investigation.”
This case cites:
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This case is cited by:
(This list may be incomplete)
Last Update: 21-Jul-16
Ref: 251549
References: [2016] NICA 27
Links: Bailii
Ratio:
Last Update: 21-Jul-16
Ref: 566289
References: [1976] VR 452, [1976] VicRp 45
Coram: Young CJ, Nelson, Harris JJ
Ratio:Australia – Victoria The court considered the nature of the act required to found an allegation of assault: ‘It may be that the somewhat different wording of section 20 of the English Act has played a part in bringing about the existence of the two lines of authority in England, but, be that as it may, we have come to the conclusion that, although the word ‘inflicts’ . . does not have as wide a meaning as the word ’causes’ . . the word ‘inflicts’ does have a wider meaning than it would have if it were construed so that inflicting grievous bodily harm always involved assaulting the victim. In our opinion, grievous bodily harm may be inflicted . . either where the accused has directly and violently ‘inflicted’ it by assaulting the victim, or where the accused has ‘inflicted’ it by doing something, intentionally, which, though it is not itself a direct application of force to the body of the victim, does directly result in force being applied violently to the body of the victim, so that he suffers grievous bodily harm. Hence, the lesser misdemeanours of assault occasioning actual bodily harm and common assault . . are not necessarily included in the misdemeanour of inflicting grievous bodily harm . .’
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(This list may be incomplete)
Last Update: 20-Jul-16
Ref: 547668
References: Unreported, 1 April 2004
Coram: Judge LJ, Elias, Stanley Burnton JJ
Ratio:The license holder of a fertility clinic was accused of keeping an embryo otherwise than in pursuance of the licence. The clinic had employed a respected consultant who had carried out the task, but had done so unlawfully.
Held: The Act made a clear distinction between the person responsible for keeping the embryos and the license holder. The licence holder might be subject to disciplinary procedures within the licence system, but he had not been the person responsible within the Act in this case.
Statutes: Human Fertilisation and Embryology Act 1990
Last Update: 07-Jul-16
Ref: 196067
Links: Judiciary
Ratio:Westminster Magistrates’ Court – The defendant faced a charge of harassment under the 1997 Act. A Ms De Freitas had laid a complaint of rape against but no further action had been taken. He began in turn proceedings alleging attempted perversion of the course of justice, during the course of which she committed suicide. Her father was unhappy with the procedures followed and complained publicly without naming the defendant. The now defendant was said to have created a website complaining as to the father’s behaviour, maintaining his own innocence and sending images from the deceased girl’s own website advertising her services as a masseuse or call girl.
Held: The defendant was not guity. ‘the material that the Defendant posted was upsetting, a grieving father was being drawn to information about his dead daughter which painted her as a call-girl and as a liar. That was surely distressing, even if all true. It was also embarrassing, not only in the uploading of the purchase of the sex aids bought but the fact that she had been offering her services as a masseuse in the sex industry. On the other hand, David de Freitas in his campaigning in the media, was, as the prosecution themselves put it, ‘asserting that his daughter’s allegation of rape was true’. This, the Defendant, says, was causing harm to his reputation.’
In the circumstances, the court could not be sure of that the hypothetical reasonable person in possession of the same information as the Defendant would think the course of conduct amounted to harassment.
Statutes: Protection from Harassment Act 1997 2
Last Update: 21-Jun-16
Ref: 565709
References: [1814] EngR 315, (1814) 5 Taunt 415, (1814) 128 ER 750
Links: Commonlii
Ratio:A magistrate who convicts an unqualified person of killing game under the stat. B Ann. e. 14, and causes his dog to be brought for the purpose of seizing it, may order the dog to be killed without any formal adjudication of seizure.
Last Update: 17-Jun-16
Ref: 337308
References: [2014] HKCFA 48, [2014] 4 HKC 101
Links: HKLII, Hklii, Hklii Summary
Coram: Mr Justice Ribeiro PJ, Mr Justice Tang PJ,, Mr Justice Fok PJ, Mr Justice Bokhary NPJ,, Lord Collins of Mapesbury NPJ
Ratio:Hong Kong Court of Final Appeal The court considered the wording of a Hong Kong money laundering ordinance.
Held: Ribeiro and Fok PJJ said in their joint judgment with which the other members of the Court of Final Appeal agreed, at para 84: ‘It is one thing to criminalise dealing with funds where the dealer knows or has reasonable grounds to believe that they are the proceeds of crime, it is quite a different matter to stigmatise as a money launderer, a lender dealing with its own ‘clean’ funds because of what the borrower does or intends to do with them.’
This case is cited by:
(This list may be incomplete)
Last Update: 15-Jun-16
Ref: 565398
References: [2016] EWCA Crim 526
Links: Bailii
Ratio:
Last Update: 11-Jun-16
Ref: 564844
References: [1986] 1 SCR 103, 1986 CanLII 46 (SCC), 53 OR (2d) 719, 24 CCC (3d) 321, 50 CR (3d) 1, 65 NR 87, [1986] CarswellOnt 95, EYB 1986-67556, [1986] SCJ No 7 (QL), 14 OAC 335, 16 WCB 73, [1986] ACS no 7, 19 CRR 308
Links: Canlii
Coram: Dickson C.J. and Estey, McIntyre, Chouinard, Lamer, Wilson and Le Dain JJ.
Ratio:Supreme Court of Canada – Constitutional law — Charter of Rights — Presumption of innocence (s. 11(d)) — Reverse onus clause — Accused presumed to be trafficker on finding of possession of illicit drug — Onus on accused to rebut presumption — Whether or not reverse onus in violation of s. 11(d) of the Charter — Whether or not reverse onus a reasonable limit to s. 11(d) and justified in a free and democratic society — Canadian Charter of Rights and Freedoms, ss. 1, 11(d) — Narcotic Control Act, R.S.C. 1970, c. N-1, ss. 3(1), (2), 4(1), (2), (3), 8.
Criminal law — Presumption of innocence — Reverse onus — Accused presumed to be trafficker on finding of possession of illicit drug — Onus on accused to rebut presumption — Whether or not constitutional guarantee of presumption of innocence (s. 11(d) of the Charter) violated.
This case is cited by:
(This list may be incomplete)
Last Update: 10-Jun-16
Ref: 564962
References: [1704] EngR 43, (1704) Holt KB 693, (1704) 90 ER 1283
Links: Commonlii
Ratio:Plea that as a scotsman, the defendant was not liable for conviction as a traitor
Last Update: 09-Jun-16
Ref: 392138
References: [1934] IR 518, [1933] IEHC 1
Links: Bailii
Coram: Murnaghan J
Ratio:(Court of Criminal Appeal – Ireland) The appellant had been tried as part of a conspiracy to steal and to receive stolen good. He was acquitted of the conspiracy, but now appealed against his conviction for theft despite his assertion that he acted only under coercion.
Held: He was acquitted: ‘ It seems to us that threats of immediate death or serious personal violence so great as to overbear the ordinary power of human resistance should be accepted as a justification for acts which would otherwise be criminal. The application of this general rule must however be subject to certain limitations. The commission of murder is a crime so heinous that murder should not be committed even for the price of life and in such a case the strongest duress would not be any justification. We have not to determine what class of crime other than murder should be placed in the same category. We are, however, satisfied that any such consideration does not apply in the case of receiving. Where the excuse of duress is applicable it must further be clearly shown that the overpowering of the will was operative at time the crime was actually committed, and, if there were reasonable opportunity for the will to reassert itself, no justification can be found in antecedent threats. ‘
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This case is cited by:
(This list may be incomplete)
Last Update: 09-Jun-16
Ref: 223665
References: [2016] EWFC B19
Links: Bailii
Coram: McKenna HHJ
Ratio Application by Birmingham City Council to commit T to prison for breach of the terms of what is colloquially referred to as a gang injunction,
Last Update: 08-May-16
Ref: 563138
References: (1851) 2 Sim NS 133, 61 ER 291, [1851] EngR 992, (1851) 61 ER 291
Links: Commonlii
Coram: Kindersley V-C
Ratio The court considered an allegation of causing a public nuisance: ‘I conceive that, to constitute a public nuisance, the thing must be such as, in its nature or its consequences, is a nuisance – an injury or a damage, to all persons who come within the sphere of its operations, though it may be so in a greater degree to some than it is to others.’
This case is cited by:
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Last Update: 27-Apr-16
Ref: 231622
Links: ScotC
Coram: Lord Hamilton And Lord Justice General And Lord Mccluskey
Last Update: 15-Apr-16
Ref: 190989
References: [2009] EWCA Crim 594
Links: Bailii
Last Update: 12-Apr-16
Ref: 341586
References: (1980) 143 CLR 108, [1980] HCA 3
Links: Austlii
Coram: Mason, Murphy and Wilson JJ
High Court of Australia – Criminal Law (N.S.W.) – Accessory before the fact – Liability – Possible consequences of venture planned with principal in first degree – Sentence of accessory – Whether judge may impose sentence of less duration than life – Crimes Act, 1900 (N.S.W.), ss. 19, 346, 442 (1).
The appellant had been convicted of murder and assault with intent to rob. His role was to drive the principal offender, W, to a rendezvous with a third man, D. The appellant was to wait at the rendezvous while the other two men robbed a known receiver of stolen jewellery. Afterwards the appellant was to take possession of the proceeds and hide them in return for a share. The appellant knew that W was carrying a pistol, and W told him that he would not stand for any nonsense if he met any obstacle during the robbery. In the event the victim resisted and W shot him dead.
The judge had directed the jury that the appellant and D would be guilty if the act constituting the offence committed was within the contemplation of the parties as an act done in the course of the venture on which they had embarked. It was argued on the appellant’s behalf that while this was an appropriate direction in the case of D, who was present and therefore a principal in the second degree, it was a misdirection in the case of the appellant, who was an accessory before the fact. It was submitted that in his case it was necessary for the jury to conclude that it was a likely or probable consequence of the way in which the crime was to be committed that the gun would be discharged so as to kill the deceased.
Held: The High Court unanimously rejected the argument that any distinction was to be drawn between the liability of a principal in the second degree and an accessory before the fact. There was no reason as a matter of legal principle why such a distinction should be drawn. They also said: ‘The narrow test of criminality proposed by the applicant is plainly unacceptable for the reason that it stakes everything on the probability or improbability of the act, admittedly contemplated, occurring. Suppose a plan made by A, the principal offender, and B, the accessory before the fact, to rob premises, according to which A is to carry out the robbery. It is agreed that A is to carry a revolver and use it to overcome resistance in the unlikely event that the premises are attended, previous surveillance having established that the premises are invariably unattended at the time when the robbery is to be carried out. As it happens, a security officer is in attendance when A enters the premises and is shot by A. It would make nonsense to say that B is not guilty merely because it was an unlikely or improbable contingency that the premises would be attended at the time of the robbery, when we know that B assented to the shooting in the event that occurred.
In the present case there was ample evidence from which the jury could infer that the applicant gave his assent to a criminal enterprise which involved the use, that is the discharge, of a loaded gun, in the event that [the victim] resisted or sought to summon assistance. We need not recapitulate the evidence to which we have already referred. The jury could therefore conclude that the common purpose involved resorting to violence of this kind, should the occasion arise, and that the violence contemplated amounted to grievous bodily harm or homicide.’
Last Update: 29-Feb-16 Ref: 560305
References: , [1831] EngR 502, (1831) 4 Car & P 565, (1831) 172 ER 827 (B)
Links: Commonlii
Coram: Garrow B
Ratio Two men went out by night with carts to steal apples. They were detected by the landowner’s watchman. One of the thieves attacked him with a bludgeon which he was carrying and caused the man severe injury. The second thief was tried for assault and wounding with intent to murder.
Held: Garrow B ruled: ‘To make the prisoner a principal, the Jury must be satisfied that, when he and his companion went out with a common illegal purpose of committing the felony of stealing apples, they also entertained the common guilty purpose of resisting to death, or with extreme violence, any persons who might endeavour to apprehend them; but if they had only the common purpose of stealing apples, and the violence of the prisoner’s companion was merely the result of the situation in which he found himself, and proceeded from the impulse of the moment, without any previous concert, the prisoner will be entitled to an acquittal.’
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Last Update: 07-Mar-16 Ref: 320380
References: [2013] ScotHC HCJAC_173
Links: Bailii
Last Update: 18-Jan-16 Ref: 519664
References: [1981] 1 WLR 578, [1981] 2 All ER 430, [1981] Crim LR 259, (1981) 72 Cr App R 359, (1981) 145 JP 313
Coram: Lord Lane CJ
Lord Lane CJ said: ‘the court should not be astute to find that a theft has taken place where it would be straining the language so to hold, or where the ordinary person would not regard the defendant’s acts, though possibly morally reprehensible, as theft.’
Statutes: Theft Act 1968
Last Update: 02-Dec-15 Ref: 556205
Links: ScotC
Coram: Lord Justice Clerk And Lord Maclean And Lord Mccluskey
Last Update: 10-Nov-15 Ref: 191088
References: [1985] VR 511, [1985] VicRp 51
Links: Austlii
Coram: Young CJ, Crockett, Brooking JJ
(Australia – Supreme Court of Victoria) A couple ran a clothing manufacturing business. They then formed a limited company of which they became the sole directors and shareholders and sold the business to the company. The price remained unpaid. The company’s premises were destroyed by fire and the proceeds of insurance were paid into the company’s bank account. The company’s debts exceeded the proceeds of the insurance. The husband drew cheques on the company’s account and was prosecuted for theft from the company and convicted.
Held: (Majority) The court quashed the conviction. Under the Crimes Act 1958 the necessary element of appropriation required proof of adverse interference with or usurpation of some right or rights of the owner (Regina v. Morris). As the company was a separate legal entity, and in the particular circumstances (through its directing mind and will) had consented to the husband’s drawing the cheques, it could not be said that he had appropriated the company’s property.
This case is cited by:
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Last Update: 26-Oct-15 Ref: 214209
References: [2015] UKSC 62
Links: Bailii
Coram: Lord Neuberger, President, Lord Kerr, Lord Hughes, Lord Toulson, Lord Hodge
Last Update: 22-Oct-15 Ref: 553629
Links: Canlii
Coram: The Honourable Madam Justice Lynn Smith
Supreme Court of British Columbia – [1] The plaintiffs have challenged the Criminal Code of Canada provisions prohibiting physician-assisted dying, relying on the Canadian Charter of Rights and Freedoms. In the Reasons for Judgment that follow, I describe the evidence and legal arguments that have led me to conclude that the plaintiffs succeed in their challenge. They succeed because the provisions unjustifiably infringe the equality rights of Gloria Taylor and the rights to life, liberty and security of the person of Gloria Taylor, Lee Carter and Hollis Johnson.
[2] Under s. 52 of the Constitution Act, the provisions are declared invalid, but the operation of that declaration is suspended for one year. During the period of suspension, a constitutional exemption will permit Ms. Taylor the option of physician-assisted death under a number of conditions.
[3] I will summarize, in brief, my findings of fact and legal reasoning.
[4] Palliative care, though far from universally available in Canada, continues to improve in its ability to relieve suffering. However, even the very best palliative care cannot alleviate all suffering, except possibly through sedation to the point of persistent unconsciousness (palliative sedation).
[5] Currently accepted and legal end-of-life practices in Canada allow physicians to follow patients’ or substitute decision-makers’ instructions to withhold or withdraw life-sustaining treatment from patients. Accepted practices also allow physicians to administer medications even in dosages that may hasten death, and to administer palliative sedation. Ethicists and medical practitioners widely concur that current legal end-of-life practices are ethically acceptable. Some of these currently accepted practices bear similarities to physician-assisted death, but opinions differ as to whether they are ethically on a different footing.
[6] Medical practitioners disagree about the ethics of physician-assisted death. There are respected practitioners who would support legal change. They state that providing physician-assisted death in defined cases, with safeguards, would be consistent with their ethical views. However, other practitioners and many professional bodies, including the Canadian Medical Association, do not support physician-assisted death.
[7] Despite a strong societal consensus about the extremely high value of human life, public opinion is divided regarding physician-assisted death. The substantial majority of committees that have studied the question, in Canada and elsewhere, oppose physician-assisted death but a minority support it.
[8] The most commonly expressed reason for maintaining a distinction between currently accepted end-of-life practices and physician-assisted death is that any system of safeguards will not adequately protect vulnerable people.
[9] Most Western countries do not permit physician-assisted dying or assisted dying, but a few do (Netherlands, Belgium, Luxembourg and Switzerland). Three of the United States permit physician-assisted dying, in the case of Oregon and Washington through legislation. The jurisdictions that permit physician-assisted dying have created safeguards to ensure that only defined categories of patients are involved, and that protocols including second opinions and reporting requirements are followed. Research findings show differing levels of compliance with the safeguards and protocols in permissive jurisdictions. No evidence of inordinate impact on vulnerable populations appears in the research. Finally, the research does not clearly show either a negative or a positive impact in permissive jurisdictions on the availability of palliative care or on the physician-patient relationship.
[10] The defendants identify a number of areas of risk for patients if physician-assisted death is permitted, for example relating to the patients’ ability to make well-informed decisions and their freedom from coercion or undue influence, and to physicians’ ability to assess patients’ capacity and voluntariness. The evidence shows that risks exist, but that they can be very largely avoided through carefully-designed, well-monitored safeguards.
[11] I turn to the legal issues.
[12] The Supreme Court of Canada Rodriguez decision from 1993 is a binding authority with respect to certain aspects of the plaintiffs’ claims.
[13] Rodriguez decides that s. 241(b) of the Criminal Code (the assisted suicide prohibition) engages Ms. Taylor’s rights to security of the person and liberty under s. 7 of the Charter, and that the legislation is not arbitrary. It leaves open whether the legislation infringes Ms. Taylor’s right to life. Further, it does not decide whether any of the plaintiffs has been deprived of s. 7 rights through legislation that is not in accordance with two principles of fundamental justice that had not yet been identified as such when Rodriguez was decided. Those are the principles that laws must not be overbroad, and that laws must not be grossly disproportionate.
[14] Rodriguez does not determine whether s. 241(b) of the Criminal Code infringes Ms. Taylor’s equality rights under s. 15 of the Charter. The majority in Rodriguez concluded that, if there was an infringement of s. 15 (a question it did not decide), the infringement constituted a reasonable limit and was demonstrably justified under s. 1 of the Charter. Because the analytical approach to s. 1 of the Charter has been modified since Rodriguez, I have addressed the question of s. 1 justification on the evidentiary record in this case.
[15] The claim that the legislation infringes Ms. Taylor’s equality rights begins with the fact that the law does not prohibit suicide. However, persons who are physically disabled such that they cannot commit suicide without help are denied that option, because s. 241(b) prohibits assisted suicide. The provisions regarding assisted suicide have a more burdensome effect on persons with physical disabilities than on able-bodied persons, and thereby create, in effect, a distinction based on physical disability. The impact of the distinction is felt particularly acutely by persons such as Ms. Taylor, who are grievously and irremediably ill, physically disabled or soon to become so, mentally competent, and who wish to have some control over their circumstances at the end of their lives. The distinction is discriminatory, under the test explained by the Supreme Court of Canada in Withler, because it perpetuates disadvantage.
[16] The legislation’s infringement of s. 15 equality rights is not demonstrably justified under s. 1 of the Charter. The purpose of the absolute prohibition against physician-assisted suicide, as determined by Rodriguez, is to prevent vulnerable persons from being induced to commit suicide at times of weakness. That purpose is pressing and substantial and the absolute prohibition against assisted suicide is rationally connected to it. However, a less drastic means of achieving the legislative purpose would be to keep an almost-absolute prohibition in place with a stringently limited, carefully monitored system of exceptions allowing persons in Ms. Taylor’s situation – grievously and irremediably ill adult persons who are competent, fully-informed, non-ambivalent and free from coercion or duress – to access physician-assisted death. Thus, the legislation does not impair Ms. Taylor’s equality rights as little as possible. Further, the legislation has very severe adverse effects on Ms. Taylor and others in her situation, that are not outweighed by its benefits. For those reasons, and despite affording due deference to Parliament, I conclude that the legislation’s absolute prohibition falls outside the bounds of constitutionality.
[17] The claimed infringement of s. 7 rights differs as among the plaintiffs. With respect to Ms. Taylor, the legislation affects her rights to liberty and security of the person, as was found in Rodriguez. In addition, the legislation affects her right to life because it may shorten her life. Ms. Taylor’s reduced lifespan would occur if she concludes that she needs to take her own life while she is still physically able to do so, at an earlier date than she would find necessary if she could be assisted. With respect to Ms. Carter and Mr. Johnson, the legislation affects their rights to liberty because they are at risk of incarceration, at least in theory, for having helped a loved one who obtained assisted death in Switzerland.
[18] The legislation deprives the plaintiffs of their s. 7 rights inconsistently with the principles of fundamental justice. First, the legislation is overbroad. Second, the legislative response – an absolute prohibition – is grossly disproportionate to the objectives it is meant to accomplish. As with the s. 15 infringement, the s. 7 infringement would not be justified under s. 1.
[19] The declaration of invalidity is suspended for one year in order to permit Parliament to take whatever steps it sees fit to draft and consider legislation. For one of the successful plaintiffs, Gloria Taylor, to have an effective remedy, she must be granted a constitutional exemption during the period of suspension. She will be permitted to seek, and her physician will be permitted to proceed with, physician-assisted death under specified conditions.
References: [2012] EWCA Crim 1130
Links: Bailii
References: [2012] EWCA Crim 995
Links: Bailii
References: [1842] EngR 395 (A), (1842) Car & M 284
Links: Commonlii
Coram: Erskine J
If a person, being attacked, should from an apprehension of immediate violence, an apprehension which must be well grounded and justified by the circumstances, throw himself for escape into a river, and be drowned, the person attacking him is guilty of murder.
References: [1846] EngR 1219, (1847) 9 QB 824, (1846) 115 ER 1491
Links: Commonlii
A count in an indictment is good which simply charges that defendants, unlawfully, &c., did conspire, combine, confederate and agree together, by divers false pretences and indirect means to cheat and defraud R. of his moneys. Where an indictment for conspiracy Contains several counts, if only a single conspiracy be proved, the verdict may nevertheless be taken on so many of the counts as describe the conspiracy consistently with the proof. In the course of proving a conspiracy to defraud, carried into effect by prevailing upon the prosecutor to accept bills, a warrant of attorrney, given to him for the purpose of inducing him to accept, reciting the acceptance may be given in evidence though unstamped. An indictment for conspiring to defraud the the prosecutor may be supported by proof of a conspiracy to obtain his acceptances, though the prosecutor part with no money, and though he never has intended to take up the acceptances, and though the bills were never in his hands except for the purpose of his accepting. Where all of several defendants in an indictment for conspiracy are found guilty, if one of them shew himself entitled to a new trial on grounds not affect ing the others, the new trial will nevertheless be granted as to all.
References: [2010] EWCA Crim 508
Links: Bailii
References: [1830] 1 M and Rob 15, [1830] EngR 887, (1830) 4 Car & P 350, (1830) 172 ER 735 (B), [1830] EngR 888, (1830) 174 ER 6
Links: Commonlii, Commonlii
A person may use a proportionate degree of force to defend himself, or others, from attack or the threat of imminent attack, or to defend his property or the property of others in the same circumstances.
This case is cited by:
References: [2002] FCJ No 1207, 2002 FCT 867
Links: UNCHR
Coram: Blais J
FCC (Federal Court of Canada – Trial Division) – Application by Pushpanathan for judicial review of a decision of the Convention Refugee Determination Division that he was not a Convention refugee. Pushpanathan was a Tamil citizen of Sri Lanka. He alleged that he was persecuted on the basis of his political opinions and was detained after participating in a political demonstration. While in Canada, Pushpanathan was convicted of conspiracy to traffic heroine along with five other Tamils and served over two years in a federal penitentiary. At his first hearing, the Refugee Division found that the conviction excluded him from refugee status because it was contrary to the purposes and principles of the United Nations. On appeal, the court ordered a new hearing. At the second hearing, the Refugee Division found that Pushpanathan was excluded from refugee protection on the basis of his involvement in crimes against humanity and terrorist activities associated with the Liberation Tigers of Tamil Eelam.
HELD: Application dismissed. The standard of review was less than a balance of probabilities. The Refugee Division correctly concluded that the Liberation Tigers was a terrorist organization. Through the trafficking of narcotics, Pushpanathan was complicit in supporting the Liberation Tigers and demonstrated a personal knowing participation and common purpose with the Tigers.
This case is cited by:
References: Unreported, 11 Oct 2011
Coram: HHJ Head
HHJ Head said: that ‘merely acting in ways which would otherwise be lawful but which constitute a breach of an Restraint Order cannot amount to the necessary ingredients of Perverting’.
Statutes: Criminal Justice Act 1988 77
This case is cited by:
References: (1860) 2 F&F 202, [1860] EWCC J42, [1860] EngR 191 (B)
Links: Bailii, Commonlii
(Summer Assizes, 1860) The prisoner was indicted for the manslaughter of Reginald Cancellor. The prisoner was a schoolmaster at Eastbourne, and in 1859 the deceased, a boy aged thirteen or fourteen, had been entrusted to his charge. He was a dull boy. At Christmas there were some complaints of chastisement inflicted on him by the prisoner. He returned to school, however, after the holidays, and again at Easter on the 16th April.
Held: A parent or someone to whom the parent has delegated authority may inflict physical hurt on his or her child, provided that it does not go too far, and is for the purpose of correction and not the gratification of passion or rage.
This case is cited by:
(This list may be incomplete)
Last Update: 02-Nov-15 Ref: 182078
References: [1846] EngR 506, (1846) 2 Car & K 230, (1846) 175 ER 95
Links: Commonlii
If each of two persons be driving a cart at a dangerous and furious rate, and they be inciting: each other to drive at a dangerous and furious rate along a turnpike road, and one of the carts run over a man and kill him, each of the two persons is guilty of manslaughter, and it is no ground of defence, that the death was partly caused by the negligence of the deceased himself, or that he was either deaf or drunk at the time Generally, it may be laid down, that, where one by his negllgence has contributed to the death of another, he is guilty of manslaughter.
References: [1998] INSC 229
Links: LII of India
(Supreme Court of India) Members of Parliament were protected by privilege from prosecution for bribery in respect of voting in parliamentary proceedings.
This case is cited by:
References: [1898] 1 QB 119
Ratio There must be some deceit spoken, written or acted to constitute a false pretence.
This case is cited by:
(This list may be incomplete)
Last Update: 03-Apr-16
Ref: 272831
References: [2000] FCA 1889, 106 FCR 46
Links: Austlii
Coram: Weinberg J
Federal Court of Australia – MIGRATION – refugees – application for protection visa – whether serious reasons for considering commission of serious non-political crime outside country of refuge – application of Art 1F(b) of Convention Relating to the Status of Refugees – meaning of ‘serious reasons for considering’.
This case is cited by:
References: (1832) 5 C & P 329, [1832] EngR 613, (1832) 5 Car & P 329, (1832) 172 ER 997
Links: Commonlii
Coram: Littledale J
In summing up in a murder trial: ‘With respect to the birth, being born must mean that the whole body is brought into the world . . Whether the child was born alive or not depends mainly on the evidence of the medical men.’
This case is cited by:
References: (1990) 93 ALR 79, (1990) 64 ALJR 321
Links: Austlii
Coram: Mason CJ, Brennan, Deane, Toohey and McHugh JJ
(High Court of Australia) The defendants appealed against their convictions, saying that their cross examinations had been improperly restricted by the judge at trial.
Held: The court considered the limit of permissible cross-examination.
This case cites:
(This list may be incomplete)
This case is cited by:
(This list may be incomplete)
Last Update: 29-Feb-16 Ref: 470723
References: [1962] 1 WLR 262
Coram: Lord Parker CJ, with whom Ashworth and MacKenna JJ
It was the prostitute who was guilty of soliciting by his or her physical presence. It was not enough for a written advertisement to be placed by him or her, or on their behalf, in a public place . A prostitute who displays an advertisement in a public street indicating that she is available for any one who desires her services does not thereby solicit.
Lord Parker CJ said: ‘I am quite satisfied that soliciting . . involves the physical presence of the prostitute and conduct on her part amounting to an importuning of prospective customers.’
Statutes: Street Offences Act 1959 1(1)
This case is cited by:
References: , [1838] EngR 876, (1838) 8 Car & P 644, (1838) 173 ER 655
Links: Commonlii
Coram: Vaughan J, Alderson B
When, upon a previous arrangement, and after there has been time for the blood to cool, two persons meet with deadly weapons, and one of them is killed, the party who occasions the death is guilty of murder, and the seconds also are equally guilty, and with respect to others shewn to be present, the question is, did they give their aid and assistance by their countenance and encouragement of the principals in the contest? Mere presence will not be sufficien, but if they sustain the principals either by advice or assitance, or go to the ground for the purpose of encouraging and forwarding the unlawful conflict, although they do not say or do anything, yet if they are present, assisting and encouraging by their presence at the moment when the fatal shot is fired, they are, in law, guilty of the crime of murder.
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References: [1841] EngR 840, (1841) Car & M 212, (1841) 174 ER 476
Links: Commonlii
Where three persons were indicted jointly for cutting and wounding, and the third of them did not come up to the spot until after one of the first two had got away, and then kicked the prosecutor while he was on the ground struggling with the other, it was held, that the two, who jointly assaulted the prosecutor and wounded him at first, might be found guilty either of the felony or of an assault only, but that the third prisoner must under the circumstances be acquitted altogether.
References: (1846) 2 C & K 53, [1845] EngR 274, (1845) 1 Den 104, (1845) 169 ER 169, [1845] EngR 1168, (1846) 2 Car & K 53, (1845) 175 ER 22
Links: Commonlii, Commonlii
Coram: Lord Ellenborough
The court considered the meaning of the phrase ”against the peace of the King’
Held: The phrase applies to the offender: it relates to his capacity to commit the crime.
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References: (1990) 171 CLR 312
(Australia) An infatuated man had stabbed his former girlfriend’s lover.
Held: The judge had been right to withdraw the issue of provocation from the jury. Jealousy and possessiveness should not found a defence of provocation.
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References: (1945) 61 TLR 452
Coram: Humphreys J
A man who became unconscious whilst driving due to the onset of a sudden illness should not be made liable at criminal law.
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References: [1815] EngR 615, (1815) 2 Car & K 101, (1815) 175 ER 41
Links: Commonlii
Under the stat. 33 Hen. 8, c. 23, a British subject was triable in this country for the murder of another British subject, committed on land within the territory of a foreign independent kingdom. In such a case, the indictment sufficiently shewed the parties to be British subjects, by stating, in the usual manner, that the deceased was in the peace of the king, and concluding against the peace of the king. Such an indictment need not conclude contra formam statuti
This case cites:
References: [1828] EngR 441, (1828) 3 Car & P 390, (1828) 172 ER 469
Links: Commonlii
Coram: Baron Vaughn
(Berkshire Assizes) an indictment charged Edmeads and others with unlawfully shooting at game keepers.
Held: The learned Baron ruled on the question of common intent, ‘that is rather a question for the Jury; but still, on this evidence, it is quite clear what the common purpose was. They all draw up in lines, and point their guns at the game-keepers, and they are all giving their countenance and assistance to the one of them who actually fires the gun. If it could be shown that either of them separated himself from the rest, and showed distinctly that he would have no hand in what they were doing, the objection would have much weight in it.’
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(This list may be incomplete)
Last Update: 04-Feb-16 Ref: 323205