Powlesland v Director of Public Prosecutions: Admn 9 Dec 2013

The defendant apealed against his conviction for having taken part in a public procession, a a Critical Mass Cycle Ride, knowingly in breach of conditions attached to it by the Police. The defendant had argued that the ride was not a procession.
Held: The appeal failed. ‘The power to give directions is to be used, not just when the organisers of a procession have been co-operative enough to tell the police in advance of their intentions as to a specific route, but and perhaps more importantly when they have not done so. It would be an absurd interpretation if a direction, aimed at preventing serious disruption, could not be given unless the police knew as a matter of objectively provable fact that the procession would follow a specific route from A to B via particular roads, despite disruptive organisers masking their intentions. It cannot be that, until the police know the specific route, they cannot use s12 to prevent the use of a reasonably possible but seriously disruptive route. The power to give directions would not be useable when most needed; and it could always be objected that the police did not know what the route was to be, but had merely believed, however reasonably, that it could take a disruptive route.’

Goldring LJ, Ouseley J
[2013] EWHC 3846 (Admin), (2014) 178 JP 67, [2014] 1 WLR 2984, [2014] WLR(D) 139
Bailii, WLRD
Public Order Act 1986 12(5)
CitedKay v Commissioner of the Police of the Metropolis HL 26-Nov-2008
The claimant had been involved in a monthly cycle ride through central London which had continued for many years. The ride took place without any central organisation and without any route being pre-planned. They objected to being required to apply . .
CitedKay v The Commissioner of Police of the Metropolis Admn 27-Jun-2006
For many years and in many large cities, once a month, cyclists had gathered en masse to cycle through the city in a ‘Critical Mass’ demonstration. There was no central organisation. Clarification was sought as to whether the consent of the police . .
CitedFlockhart v Robinson 1950
A challenge was made to the organising of a procession. Its route was determined by Mr Flockhart as he went along.
Held: For the purposes of section 3(4) of the 1936 Act, a procession ‘is a body of persons moving along a route’ and that, by . .
CitedJukes and Others v Director of Public Prosecutions Admn 16-Jan-2013
Two of those participating in a march demonstrating against cuts in the education budget, left that march to join the Occupy Movement’s demonstration in Trafalgar Square against the excesses of capitalism. They were, convicted at Westminster . .

Lists of cited by and citing cases may be incomplete.

Crime, Road Traffic, Police

Updated: 28 November 2021; Ref: scu.519993

Coats, Regina v: CACD 24 Jul 2013

The defendant had been convicted of importing drugs. She denied knowledge of the offence and denied any coercion. Another person awaiting her at the airport was later convicted of an unassociated murder. She now appealed sayng that she had been coerced. The court was now asked whether he appellant may have been suffering from Battered Woman’s Syndrome at the time of the offence; and (ii) If so, was it a severity and degree that it might have afforded her the defence of duress?
Held: The appeal failed: ‘We make every allowance for the fact that a battered woman may not report their abuser, may not reveal the true extent of their abuse and may withdraw complaints. However, the contemporaneous records of this woman, of her complaints of her dealings with the police and social workers simply do not paint a picture of an abused woman who is passive and suppressing her suffering and her fears. They reveal a woman with her own anger management problems, a woman prepared to stand up for herself with Walters and the authorities and who far from being isolated was in regular contact with friends and relations.’

Hallett DBE LJ, Openshaw, Leggatt JJ
[2013] EWCA Crim 1472
England and Wales
AppliedHasan, Regina v HL 17-Mar-2005
The House was asked two questions: the meaning of ‘confession’ for the purposes of section 76(1) of the 1984 Act, and as to the defence of duress. The defendant had been involved in burglary, being told his family would be harmed if he refused. The . .

Lists of cited by and citing cases may be incomplete.


Updated: 25 November 2021; Ref: scu.517484

Regina v St Regis Paper Company Ltd: CACD 4 Nov 2011

The court was asked as to the extent which the appellant, St. Regis Paper Company Limited, could be held criminally liable for intentionally making a false entry in a record required for environmental pollution control in its application to offences requiring proof of mens rea.

Moses LJ, Nicola Davies, Gilbert QC JJ
[2011] EWCA Crim 2527, [2012] PTSR 871, [2012] 1 Cr App R 14, [2012] Lloyd’s Rep FC 221, [2012] Env LR 16
Pollution Prevention and Control (England and Wales) Regulations 2000
England and Wales
CitedSeabord Offshore Ltd v Secretary of State for Transport (The Safe Carrier) HL 25-Mar-1994
The House was asked whether a ship manager was legally responsible for the acts of the ship’s chief engineer under s31(1) of the Merchant Shipping Act 1988, which imposed a duty on the manager to take all reasonable steps to secure that the ship was . .

Cited by:
CitedA Ltd and Othersi, Regina v CACD 28-Jul-2016
The Serious Fraud Office appealed against rulings on the admission of evidence after its exclusion under section 78.
Held: The appeal was allowed. The appeal had been brought within time and could proceed. Police and Criminal Evidence Act . .

Lists of cited by and citing cases may be incomplete.


Updated: 22 November 2021; Ref: scu.448148

Ginwalla, Regina v: CACD 8 Dec 2005

[2005] EWCA Crim 3553
Drug Trafficking Act 1994 31(4)
England and Wales
Cited by:
CitedGibson v Revenue and Customs Prosecution Office CA 12-Jun-2008
The claimant’s husband had been made subject to a criminal confiscation order in the sum of pounds 5.5 million. She now sought to appeal an action against life policies in which she claimed a 50% interest.
Held: Despite the finding that she . .

Lists of cited by and citing cases may be incomplete.


Updated: 20 November 2021; Ref: scu.278598

Rowe v Regina: CACD 15 Mar 2007

The defendant had been convicted of possessing articles for terrorist purposes, namely a notebook with notes setting out how to construct a mortar bomb in his handwriting. There was also a coded list of potential targets.
Held: The decision in R v M ‘that ‘articles’ within the meaning of section 57 cannot extend to documents and records because express provision is made for these items under article 58′ was unsatisfactory. There was an overlap between sections 57 and 58, but that did not mean that a finding that a document was an article would make section 58 almost superfluous. The two sections dealt with different aspects of terrorism. Section 57 included a specific intention, but section 58 did not.

Lord Phillips CJ, Latham LJ, Cresswell J, Burton J
[2007] EWCA Crim 635, Times 26-Mar-2007
Terrorism Act 2000 57(1)
England and Wales
CitedM and Others, Regina v CACD 7-Feb-2007
The defendants appealed a ruling by the recorder that electronic storage devices were ‘articles’ within s57. S58 dealt with documents, and section 57 with articles.
Held: Hooper LJ said: ‘There is no practical difference between a book which a . .
CitedPalmer, Regina v CACD 11-Oct-2002
The defendant appealed against a very substantial confiscation order. The prosecution had served notices under sections 71 and 72(1), but the section 72(1) notice was invalid. The judge allowed a second notice to be served, and the case to be . .
CitedSekhon, etc v Regina CACD 16-Dec-2002
The defendants appealed against confiscation orders on the basis that in various ways, the Crown had failed to comply with procedural requirements.
Held: The courts must remember the importance of such procedures in the fight against crime, . .
CitedSimpson v Regina CACD 23-May-2003
The appellant challenged a confiscation order made on his conviction of VAT fraud. It was argued that one could not be made unless a proper notice had been given, and none of the offences occurred before 1995. On the assumption that section 1 of the . .
CitedKeogh v Regina CACD 7-Mar-2007
The defendant was charged under the 1989 Act. He complained that the effect of the Act was to put an unfair burden on him to establish that he was unaware of the damaging effects of disclosure.
Held: The Act did not comply with the defendant’s . .

Cited by:
PreferredM, Regina v; Regina v Z; Regina v I; Regina v R; Regina v B (No 2) CACD 27-Apr-2007
The defendants, accused of offences under the 2000 Act, appealed an interim finding that documents stored on computers could amount to ‘articles’ within the Act. They said that the existence of sections 57 and 58 suggested two distinct regimes, one . .

Lists of cited by and citing cases may be incomplete.


Updated: 20 November 2021; Ref: scu.251143

Robson and others v Regina: CACD 21 Dec 2006

Appeal from convictions for historic abuse: ‘the appeals raise the difficult question of the safety of verdicts which depend upon evidence given by witnesses who were young at the time, vulnerable and purport to give an account of events which may have taken place at least twenty-five years ago. They raise the issue as to whether, either at the close of the prosecution case, or at the close of the defence case, the judge should have intervened to withdraw the allegations from the jury on the basis that no jury could safely convict. They also raise an issue as to the proper way the judge should have directed the jury about such incidents.’
Held: As to some counts: ‘, in the light of the paucity of clear evidence identifying which teachers were responsible for the attack by the school and the inaccuracy of the judge in identifying which evidence went to Counts 7 to 9, the verdicts of guilty in relation to George Robson and Wilson are unsafe and should be quashed. It must not be forgotten that the witnesses were purporting to identify teachers as being responsible for this fight, possibly some twenty-six years previously. There was such a lack of clear, reliable and consistent evidence, coupled with a significantly inaccurate direction as to lead us to the conclusion that the verdicts on Counts 7 to 9 are unsafe.’

Moses LJ, McCombe J, Martin Stephens QC HHJ
[2006] EWCA Crim 2754
England and Wales


Updated: 20 November 2021; Ref: scu.247500

Regina v Collett, Regina v Furminger, Regina v Nazari, Regina v Pope, Regina v Bandar: CACD 28 Oct 1993

The use of land contrary to an enforcement notice is an offence of absolute liability. The burden was on the user of land to establish what uses were lawful.

Times 28-Oct-1993, Gazette 08-Dec-1993
Town and Country Planning Act 1971 89(5)
England and Wales

Crime, Planning

Updated: 20 November 2021; Ref: scu.86408

Dundas-Jones and others v Regina: CACD 26 Jan 2007

Several defendants had been convicted of various offences relating to the importation of substantial volumes of cocaine, and its manufacture into crack cocaine, and money-laundering offences. The first defendant appealed her conviction for having been involved in a conspiracy to courier the drugs. The principle evidence was a call lasting only three minutes in whch she booked a flight. Her defence was that any such call would take at least 10 minutes, and that she had not made such a call.
Held: The judge’s direction to the jury not to speculate risked withholding the defendant’s defence from them, and he might have avoided his sarcasm, but the result came within his range of discretion and may have been generous to her, but was insufficient to dispell his earlier comments which undermined the defence, and the appeal was allowed. Another defendant claimed to have had no knowledge of the conpiracy. A prison escort officer had overheard a conversation in which a leading conspirator had confessed tat he had not told her what was happening. The evidence was reliable, was admitted, and the conviction set aside.

Laws LJ, Penry-Davey J, Recorder of Chester
[2007] EWCA Crim 2
England and Wales


Updated: 19 November 2021; Ref: scu.248244

Fitzmaurice, Regina v: CACD 8 Jul 1982

The defendant appealed against his conviction for inciting others to commit robbery. The men he was said to have incited were not convicted.

O’Connor LJ, Neill, Taylor JJ
[1982] EWCA Crim 1, [1983] 1 All ER 189, [1983] 2 WLR 227, [1983] QB 1083, [1982] Crim LR 677, (1982) 76 Cr App R 17
England and Wales


Updated: 19 November 2021; Ref: scu.247945

Lynch v Director of Public Prosecutions: Admn 8 Nov 2001

The defendant challenged a conviction for having a locked bladed article in his possession in a public place, on the basis that it placed on him a burden of proof contrary to the convention.
Held: Salabiaku permits a reverse onus but requires presumptions of fact or of law to be defined within reasonable limits. As Lord Bingham stated in Brown, there are no hard edged and inflexible statements of principle. A fair balance must be struck. That fair balance permits the existence of a reverse onus in the context of section 139 of the 1988 Act.

Pill LJ Poole J
[2001] EWHC Admin 882
Criminal Justice Act 1988 139, Human Rights Act 1988 3, European Convention of Human Rights 6
England and Wales
CitedSalabiaku v France ECHR 7-Oct-1988
A Zairese national living in Paris, went to the airport to collect, as he said, a parcel of foodstuffs sent from Africa. He could not find this, but was shown a locked trunk, which he was advised to leave alone. He however took possession of it, . .
CitedAttorney General of Hong Kong v Lee Kwong-Kut PC 1993
(Hong Kong) In order to maintain the balance between the individual and the society as a whole, rigid and inflexible standards should not be imposed on the legislature’s attempts to resolve the difficult and intransigent problems with which society . .
CitedStott (Procurator Fiscal, Dunfermline) and Another v Brown PC 5-Dec-2000
The system under which the registered keeper of a vehicle was obliged to identify herself as the driver, and such admission was to be used subsequently as evidence against her on a charge of driving with excess alcohol, was not a breach of her right . .
CitedRegina v Director of Public Prosecutions, ex parte Kebilene and others HL 28-Oct-1999
(Orse Kebeline) The DPP’s appeal succeeded. A decision by the DPP to authorise a prosecution could not be judicially reviewed unless dishonesty, bad faith, or some other exceptional circumstance could be shown. A suggestion that the offence for . .
CitedRegina v Lambert HL 5-Jul-2001
Restraint on Interference with Burden of Proof
The defendant had been convicted for possessing drugs found on him in a bag when he was arrested. He denied knowing of them. He was convicted having failed to prove, on a balance of probabilities, that he had not known of the drugs. The case was . .
CitedRegina v Lambert; Regina v Ali; Regina v Jordan CACD 14-Sep-2000
Each defendant was charged under a statute which provided a defence if they could prove a certain element. They complained that this was a breach of their human rights. The complaint was rejected. It would be wrong to impose a burden of proof on a . .
CitedRegina v Hunt (Richard) HL 1987
The court objected to the insistence on leaving the burden throughout a prosecution on the defendant on the ground that ‘the discharge of an evidential burden proves nothing – it merely raises an issue’. The House emphasised the special nature of . .
CitedJayasena v The Queen PC 1-Dec-2006
J appealed from his conviction of murder. He admitted the act but said that it was in self defence. He said that the Judge had misdirected the jury as to the burden of evidence on the issue of self defence.
Held: Lord Devlin said: ‘Their . .

Lists of cited by and citing cases may be incomplete.

Crime, Human Rights

Updated: 19 November 2021; Ref: scu.167260

Logdon v Director of Public Prosecutions: QBD 1976

Fear caused with fake gun remains assault

The defendant pointed an imitation gun at a woman. He acted in jest, but she was frightened until he told her that it wasn’t real.
Held: The assault was committed. The victim had been put in fear of immediate and unlawful violence.
An assault can be committed by a person purporting to require positive or negative compliance with a condition on pain of an assault. The expected blow following immediately upon the threat to inflict it, may be an assault where D never intends to carry out the threat,

[1976] Crim LR 121
England and Wales


Leading Case

Updated: 12 November 2021; Ref: scu.539760

Pagett, Regina v: CACD 3 Feb 1983

Jury Directions on Causation

The appellant shot at police officers who were attempting to arrest him for various serious offences. The appellant had with him a 16 year old girl who was pregnant by him. Against her will he used her body to shield him from any retaliation by the officers. The officers returned his fire and as a result the girl was killed. The appellant was charged with her murder. The trial judge left both murder and manslaughter to the jury. The appellant was acquitted of murder but convicted of manslaughter.
Held: For the judge to direct the jury as to the relevant principles relating to causation and then leave it to the jury to decide whether or not, in the light of those principles, the relevant causal link had been established. In the rare case in which it was necessary to direct the jury’s minds to the question of causation, it was usually enough to direct them simply that in law the accused’s act need not be the sole cause, or even the main cause, of the victim’s death, it being enough that the act contributed significantly to that result.
Robert Goff LJ said: ‘In cases of homicide, it is rarely necessary to give the jury any direction on causation as such. Of course, a necessary ingredient of the crimes of murder and manslaughter is that the accused has by his act caused the victim’s death. But how the victim came by his death is usually not in dispute . . Even where it is necessary to direct the jury’s minds to the question of causation, it is usually enough to direct them simply that in law the accused’s act need not be the sole cause, or even the main cause, of the victim’s death, it being enough that his act contributed significantly to that result . . Occasionally, however, a specific issue of causation may arise. One such case is where, although an act of the accused constitutes a causa sine qua non of (or necessary condition for) the death of the victim, nevertheless the intervention of a third person may be regarded as the sole cause of the victim’s death, thereby relieving the accused of criminal responsibility. Such intervention, if it has such an effect, has often been described by lawyers as a novus actus interveniens . We are aware that this time-honoured Latin term has been the subject of criticism. We are also aware that attempts have been made to translate it into English; though no simple translation has proved satisfactory, really because the Latin term has become a term of art which conveys to lawyers the crucial feature that there has not merely been an intervening act of another person, but that that act was so independent of the act of the accused that it should be regarded in law as the cause of the victim’s death, to the exclusion of the act of the accused. At the risk of scholarly criticism, we shall for the purposes of this judgment continue to use the Latin term . . in cases where there is an issue whether the act of the victim or of a third party constituted a novus actus interveniens, breaking the causal connection between the act of the accused and the death of the victim, it would be appropriate for the judge to direct the jury, of course in the most simple terms, in accordance with the legal principles which they have to apply.’

Robert Goff LJ, Cantley, Farquharson JJ
[1983] EWCA Crim 1, (1983) 76 Cr App R 279, [1983] Crim LR 394
England and Wales
Cited by:
CitedGnango, Regina v SC 14-Dec-2011
The prosecutor appealed against a successful appeal by the defendant against his conviction for murder. He and an opponent had engaged in a street battle using guns. His opponent had shot an innocent passer by. The court was now asked as to whether . .

Lists of cited by and citing cases may be incomplete.


Leading Case

Updated: 11 November 2021; Ref: scu.247946

Southwark London Borough Council v Williams: CA 1971

No Defence of Homelessness to Squatters

The defendants, in dire need of housing accommodation entered empty houses owned by the plaintiff local authority as squatters. The court considered the defence of necessity.
Held: The proper use of abandoned council properties is best determined by political decision making processes. Squatters, in urgent need of accommodation, could not claim a defence of necessity because the peril they found themselves in was ‘an obstinate and longstanding state of affairs’, rather than an immediate or emergent threat. The court denied that if a starving beggar takes the law into his own hands and steals food he is not guilty of theft.
Lord Denning MR said: ‘If homelessness were once admitted as a defence to trespass, no one’s house could be safe. Necessity would open a door no man could shut. It would not only be those in extreme need who would enter. There would be others who would imagine they were in need or would invent a need, so as to gain entry. The plea would be an excuse for all sorts of wrongdoing. So the courts must refuse to admit the plea of necessity to the hungry and the homeless: and trust that their distress will be relieved by the charitable and good.’
Edmund Davies LJ said: ‘But when and how far is the plea of necessity available to one who is prima facie guilty of tort? Well, one thing emerges with clarity from the decisions and that is that the law regards with the deepest suspicion any remedies of self-help and permits those remedies to be resorted to only in very special circumstances. The reason for such circumspection is clear -necessity can very easily become simply a mask for anarchy.’

Lord Denning MR, Edmund-Davies LJ
[1971] 1Ch 734, [1971] 2 All ER 175, [1971] 2 WLR 467
England and Wales
Cited by:
CitedMonsanto Plc v Tilly and Others CA 30-Nov-1999
A group carried out direct action in protesting against GM crops by pulling up the plants. The group’s media liaison officer, while not actually pulling up plants himself, ‘reconnoitred the site the day before. He met the press at a prearranged . .
CitedIn Re A (Minors) (Conjoined Twins: Medical Treatment); aka In re A (Children) (Conjoined Twins: Surgical Separation) CA 22-Sep-2000
Twins were conjoined (Siamese). Medically, both could not survive, and one was dependent upon the vital organs of the other. Doctors applied for permission to separate the twins which would be followed by the inevitable death of one of them. The . .
CitedWhite v Withers Llp and Dearle CA 27-Oct-2009
The claimant was involved in matrimonial ancillary relief proceedings. His wife was advised by the defendants, her solicitors, to remove his private papers. The claimant now sought permission to appeal against a strike out of his claim against the . .
CitedRegina v Burns, Paul CACD 27-Apr-2010
The defendant appealed against his conviction for assault. He had picked up a sex worker, driven away, but then changed his mind, and forcibly removed her from the car when she delayed. He now argued that he had the same right at common law to . .
CitedCity of London v Samede and Others QBD 18-Jan-2012
The claimant sought an order for possession of land outside St Paul’s cathedral occupied by the protestor defendants, consisting of ‘a large number of tents, between 150 and 200 at the time of the hearing, many of them used by protestors, either . .

Lists of cited by and citing cases may be incomplete.

Torts – Other, Crime, Housing, Land

Leading Case

Updated: 11 November 2021; Ref: scu.183171

Lawrence v Metropolitan Police Commissioner: HL 30 Jun 1971

The defendant, a taxi driver, had without objection on the part of an Italian student asked for a fare of andpound;6 for a journey for which the correct lawful fare was 10s 6d. The taxi driver was convicted of theft. On appeal the main contention was that the student had consented to pay the fare. But it was clear that the appellant had not told the student what the lawful fare was.
Held: Section 1(1) of the 1968 Act is not to be read as if it contained such words as ‘without having the consent of the owner’. A theft is complete upon proof of the statutory elements: (i) a dishonest (ii) appropriation (iii) of property belonging to another (iv) with the intention of permanently depriving the owner of it. ‘That there was appropriation in this case is clear. Section 3(1) states that any assumption by a person of the rights of an owner amounts to an appropriation. Here there was clearly such an assumption. That an appropriation was dishonest may be proved in a number of ways. In this case it was not contended that the appellant had not acted dishonestly.’ Where consent is in issue, it is relevant, not to appropriation, but to dishonesty. Consent in the context of the law of theft means true consent with full knowledge of the relevant facts. belief that the passenger gave informed consent (i.e. knowing that he was paying in excess of the fare) ‘is relevant to the issue of dishonesty, not to the question whether or not there has been an appropriation.’ Sections 1(1) and 15(1) of the Act are not mutually exclusive. If the facts proved justify a conviction under section 15(1), there can lawfully be a conviction under section 1(1) on the same facts.

Viscount Dilhorne
[1972] AC 626, [1971] 3 WLR 225, [1971] 2 All ER 1253, [1971] UKHL 2
Theft Act 1968 1
England and Wales
Appeal fromRegina v Lawrence (Alan) CACD 1970
The offence created by section 1(1) of the 1968 Act involved four elements: ‘(i) a dishonest (ii) appropriation (iii) of property belonging to another (iv) with the intention of permanently depriving the owner of it.’ . .

Cited by:
ApprovedDirector of Public Prosecutions v Gomez HL 3-Dec-1992
The defendant worked as a shop assistant. He had persuaded the manager to accept in payment for goods, two cheques which he knew to be stolen. The CA had decided that since the ownership of the goods was transferred on the sale, no appropriation of . .
ConsideredRegina v Morris (David) CACD 1983
Two defendants worked together to alter the labels on joints of meat in a supermarket, and to present the one with the now reduced price at the till. The appealed convictions for theft saying that since the purchase transferred the property in the . .
AppliedRegina v Morris (David); Anderton v Burnside HL 2-Jan-1983
The defendants had been accused of theft. One switched labels on a joint of pork in a supermarket, and the other presented the meat with the now cheaper label for purchase.
Held: The appeals were dismissed. There can be no conviction for theft . .
CitedRegina v Shuck CACD 1992
The defendant was a company officer. He gave instructions to an innocent third party which resulted in the dishonest diversion of substantial sums of the company’s money. He appealed the judge’s interpretation of the word ‘appropriation.’
CitedWheatley and Another v The Commissioner of Police of the British Virgin Islands PC 4-May-2006
(The British Virgin Islands) The defendants appealed against convictions for theft and misconduct. Being civil servants they had entered in to contract with companies in which they had interests. . .

Lists of cited by and citing cases may be incomplete.


Leading Case

Updated: 11 November 2021; Ref: scu.189995

Crown Prosecution Service v P; Director of Public Prosecutions v P: Admn 27 Apr 2007

The prosecutor appealed a grant of a stay of a prosecution of the 13 year old defendant as an abuse of process. Reports had indicated that he was unfit to plead. The prosecution contended that, if the court thought P ought not to face trial by reason of his disability, it should proceed to decide whether he had done the acts alleged and, if satisfied that he had, should then consider medical evidence and all the circumstances of the case before deciding whether an order under section 37(2) of the Mental Health Act was appropriate.
Held: Though the prosecutor’s appeal succeeded, the matter should not be remitted because of the delay. The were two separate questions; whether the defendant was able to understand and plead to the charge against him, and whether he would be able to take an effective part in the trial. It was for the court to decide this, not the doctors: ‘the medical evidence should be considered as part of the evidence in the case and not as the sole evidence on a freestanding application.’ That another court may have decided that a defendant was doli incapax did not prevent a later court taking a case forward. It had to decide the matter afresh. The power and duty to consider this was a continuing one throughout the trial. Obiter, section 34 has not abolished the doctrine of doli incapax, the presumption of incapacity for a child over 10. The change ruled out the presumption of incapacity, not the ability of a court to apply the doctrine where appropriate: ‘it must be the presumption that has been abolished.’

Smith LJ, Gross J
[2007] EWHC 946 (Admin), [2007] 4 All ER 628, [2008] 1 WLR 1005
Powers of Criminal Courts (Sentencing) Act 2000 11(2), Mental Health Act 1983 37(3), Crime and Disorder Act 1998 34
England and Wales
CitedRegina (P) v Barking Magistrates Court Admn 2002
P, a 16 year old boy with learning difficulties faced charges. A psychologist said his IQ was so low (52) that P would not be able to understand or reply rationally to the charges. The justices decided that he was fit to plead; they had formed a . .
CitedRex v Pritchard 21-Mar-1836
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 . .
CitedTP, Regina (on the Application of) v West London Youth Court and others Admn 21-Nov-2005
It had been submitted to the youth court that a boy of 15, with the intellectual capacity of an 8 year old, ought not to face trial. The district judge decided that the trial should proceed and the defendant sought judicial review.
Held: The . .
CitedSC v United Kingdon ECHR 2004
SC when aged 11 was charged with attempted robbery. He had previous convictions, and was committed to the crown court for trial. He applied to stay the proceedings as an abuse of process on account of limited intellectual capacity, and inability . .
CitedWhite, Regina (on the Application of) v the Justices of Barking Magistrates’ Court Admn 25-Feb-2004
A court was correct to refuse to enforce an expectation which was assumed to be otherwise legitimate on the basis that a sentence passed in accordance with that expectation would have been outside the range available to the sentencing court and . .
CitedWhite, Regina (on the Application of) v the Justices of Barking Magistrates’ Court Admn 25-Feb-2004
A court was correct to refuse to enforce an expectation which was assumed to be otherwise legitimate on the basis that a sentence passed in accordance with that expectation would have been outside the range available to the sentencing court and . .
CitedRegina v Horseferry Road Magistrates’ Court, ex Parte Bennett (No 1) HL 24-Jun-1993
The defendant had been brought to the UK in a manner which was in breach of extradition law. He had, in effect, been kidnapped by the authorities.
Held: The High Court may look at how an accused person was brought within the jurisdiction when . .

Cited by:
CitedRegina v T CACD 16-Apr-2008
The twelve year old defendant had pleaded guilty to several allegations of sexual assault. The judge had ruled that it was not open to him to plead doli incapax. He appealed saying that only the presumption of doli incapax had been abolished, and . .
CitedJTB, Regina v HL 29-Apr-2009
The defendant appealed against his convictions for sexual assaults. He was aged twelve at the time of the offences, but had been prevented from arguing that he had not known that what he was doing was wrong. The House was asked whether the effect of . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, Crime

Leading Case

Updated: 11 November 2021; Ref: scu.251535

Nicklinson and Another, Regina (on The Application of): SC 25 Jun 2014

Criminality of Assisting Suicide not Infringing

The court was asked: ‘whether the present state of the law of England and Wales relating to assisting suicide infringes the European Convention on Human Rights, and whether the code published by the Director of Public Prosecutions relating to prosecutions of those who are alleged to have assisted a suicide is lawful. ‘
Held: The first appeal (of Nicklinson) failed (Majority seven to to two) The question of whether the current law on assisted suicide is incompatible with Article 8 lies within the United Kingdom’s margin of appreciation, and is therefore a question for the United Kingdom to decide, and the court did have the constitutional authority to make a declaration of incompatibility of section 2 of the 1961 Act with those article 8 rights. However the issues were inherently ones far better to be decided by Parliament, and Parliament’s assessment should be respected.
In the second appeal, the DPP succeeded in having the decision in favour of AM reversed. Several factors, the judgment by the DPP, the variety of cases, and the need to vary the weight to be attached to them according to the circumstances of each individual case were all proper and constitutionally necessary features of the system of prosecution in the public interest.
Lord Neuberger PSC succinctly described the responsibility of the DPP: ‘The DPP always has the right to decide that it is not in the public interest to prosecute, even where it is clear that an offence was committed; and the DPP has power to stay a private prosecution if satisfied, inter alia, that it is not in the public interest for the prosecution to proceed. All that section 2(4) does, therefore, is to rule out the bringing of a private prosecution for encouraging or assisting a suicide without the DPP’s prior consent (although it is worth noting that, before the creation of the Crown Prosecution Service (‘CPS’), it would have prevented the police prosecuting without the consent of the DPP).’
Lord Neuberger also said: ‘Where the legislature has enacted a statutory provision which is within the margin of appreciation accorded to member states, it would be wrong in principle and contrary to the approach adopted in In re G, for a national court to frank the provision as a matter of course simply because it is rational. However, where the provision enacted by Parliament is both rational and within the margin of appreciation accorded by the Strasbourg court, a court in the United Kingdom would normally be very cautious before deciding that it infringes a Convention right. As Lord Mance said in In re G, the extent to which a United Kingdom court should be prepared to entertain holding that such legislation is incompatible must depend on all the circumstances, including the nature of the subject-matter, and the extent to which the legislature or judiciary could claim particular expertise or competence.’

Lord Neuberger, President, Lady Hale, Deputy President, Lord Mance, Lord Kerr, Lord Clarke, Lord Wilson, Lord Sumption, Lord Reed, Lord Hughes
36 BHRC 465, [2015] 1 AC 657, 139 BMLR 1, [2014] WLR(D) 298, [2014] 3 FCR 1, [2014] HRLR 17, [2014] 3 WLR 200, [2014] 3 All ER 843, (2014) 139 BMLR 1, UKSC 2013/0235, [2014] UKSC 38, [2014] 3 WLR 200
WLRD, SC, SC Summary, Bailii Summary, Bailii
Homicide Act 1957, Suicide Act 1961 2, Coroners and Justice Act 2009, European Convention on Human Rights 8
England and Wales
See AlsoNicklinson v Ministry of Justice and Others QBD 12-Mar-2012
The claimant suffered locked-in syndrome and sought relief in a form which would allow others to assist him in committing suicide. The court considered whether the case should be allowed to proceed rather than to be struck out as hopeless.
At AdminNicklinson, Regina (on The Application of) v Ministry of Justice Admn 16-Aug-2012
The claimants each suffered ‘locked in syndrome’ after catastrophic health events, and were unable to commit suicide as they would have wished. In one case, the claimant would have needed assistance to travel to a clinic in Switzerland where he . .
Appeal fromNicklinson and Another, Regina (on The Application of) v A Primary Care Trust CA 31-Jul-2013
The claimant had suffered a severe form of locked-in syndrome, and would wish to die. He sought a declaration that someone who assisted him in his siuicide would not be prosecuted for murder.
Held: The position in law that voluntary euthanasia . .
CitedRex v Croft CCA 1944
A person who was present at the suicide of another and who assisted or encouraged the suicide, is guilty of murder as a principal in the second degree. The survivor of a suicide pact was properly convicted of murder. The court considered liability . .
CitedAiredale NHS Trust v Bland HL 4-Feb-1993
Procedures on Withdrawal of Life Support Treatment
The patient had been severely injured in the Hillsborough disaster, and had come to be in a persistent vegetative state (PVS). The doctors sought permission to withdraw medical treatment. The Official Solicitor appealed against an order of the Court . .
CitedInglis, Regina v CACD 12-Nov-2010
The appellant was mother of the victim. He had suffered catastrophic injuries. She had tried to end his life in a ‘mercy killing’, but was discovered, charged with attempted murder, and released on bail. On a second occasion she injected him with a . .
CitedAintree University Hospitals NHS Foundation Trust v James SC 30-Oct-2013
The hospital where a gravely ill man had been treated had asked for a declaration that it would be in his best interests to withhold certain life-sustaining treatments from him. When can it be in the best interests of a living patient to withhold . .
CitedIn Re B (A Minor) (Wardship: Medical Treatment) CA 1981
The child was born with Down’s Syndrome and an intestinal blockage. She needed the obstruction to be relieved if she was to survive. If the operation were performed, the child might die within a few months but it was probable that her life . .
CitedIn re F (Mental Patient: Sterilisation) HL 4-May-1989
Where a patient lacks capacity, there is the power to provide him with whatever treatment or care is necessary in his own best interests. Medical treatment can be undertaken in an emergency even if, through a lack of capacity, no consent had been . .
CitedIn re J (a Minor) (Wardship: Medical treatment) CA 1-Oct-1990
J was born at 27 weeks’, weighing only 1.1kg. He suffered very severe and permanent brain damage at the time of his birth, the brain tissue then lost being irreplaceable. He was epileptic and the medical evidence was that he was likely to develop . .
CitedMs B v An NHS Hospital Trust FD 22-Mar-2002
The applicant had come to suffer from a completely disabling condition, and requested that her life support machine be turned off. She did not want to live on a ventilator, and had made a living will. She was found at first to have capacity to make . .
CitedIn re B (Consent to treatment: Capacity) FD 22-Mar-2002
The claimant had suffered catastrophic injuries, leaving her unable to breathe without artificial help. She eventually decided that she wanted to refuse treatment. The health authority took this as an indication of lack of capacity, and refused to . .
CitedIn Re A (Minors) (Conjoined Twins: Medical Treatment); aka In re A (Children) (Conjoined Twins: Surgical Separation) CA 22-Sep-2000
Twins were conjoined (Siamese). Medically, both could not survive, and one was dependent upon the vital organs of the other. Doctors applied for permission to separate the twins which would be followed by the inevitable death of one of them. The . .
CitedRegina (on the Application of Pretty) v Director of Public Prosecutions and Secretary of State for the Home Department HL 29-Nov-2001
The applicant was terminally ill, and entirely dependent upon her husband for care. She foresaw a time when she would wish to take her own life, but would not be able to do so without the active assistance of her husband. She sought a proleptic . .
CitedIn re B (Consent to treatment: Capacity) FD 22-Mar-2002
The claimant had suffered catastrophic injuries, leaving her unable to breathe without artificial help. She eventually decided that she wanted to refuse treatment. The health authority took this as an indication of lack of capacity, and refused to . .
CitedKoch v Germany ECHR 19-Jul-2012
Article 8-1
Respect for private life
Refusal by the German courts to examine the merits of an application by a man whose wife had just committed suicide in Switzerland after having attempted unsuccessfully to obtain authorisation to . .
CitedGross v Switzerland ECHR 14-May-2013
ECHR Article 8
Positive obligations
Article 8-1
Respect for private life
Lack of clear legal guidelines regulating the prescription of a drug to enable individual not suffering from a . .
CitedHasan and Chaush v Bulgaria ECHR 26-Oct-2000
The Grand Chamber considered executive interference in the appointment of the Chief Mufti of the Bulgarian Muslims: ‘Where the organisation of the religious community is at issue, Article 9 must be interpreted in the light of Article 11 of the . .
CitedPretty v The United Kingdom ECHR 29-Apr-2002
Right to Life Did Not include Right to Death
The applicant was paralysed and suffered a degenerative condition. She wanted her husband to be allowed to assist her suicide by accompanying her to Switzerland. English law would not excuse such behaviour. She argued that the right to die is not . .
CitedHirst v United Kingdom (2) ECHR 6-Oct-2005
(Grand Chamber) The applicant said that whilst a prisoner he had been banned from voting. The UK operated with minimal exceptions, a blanket ban on prisoners voting.
Held: Voting is a right not a privilege. It was a right central in a . .
CitedPurdy, Regina (on the Application of) v Director of Public Prosecutions HL 30-Jul-2009
Need for Certainty in Scope of Offence
The appellant suffered a severe chronic illness and anticipated that she might want to go to Switzerland to commit suicide. She would need her husband to accompany her, and sought an order requiring the respondent to provide clear guidelines on the . .
CitedRegina v Howe etc HL 19-Feb-1986
The defendants appealed against their convictions for murder, saying that their defences of duress had been wrongly disallowed.
Held: Duress is not a defence available on a charge of murder. When a defence of duress is raised, the test is . .
CitedAiredale NHS Trust v Bland CA 9-Dec-1992
The official Solicitor appealed against a decision that doctors could withdraw medical treatment including artificial nutrition, from a patient in persistent vegetative state.
Held: The doctors sought permission to act in accordance with . .
CitedWoolwich Equitable Building Society v Inland Revenue Commissioners (2) HL 20-Jul-1992
The society had set out to assert that regulations were unlawful in creating a double taxation. It paid money on account of the tax demanded. It won and recovered the sums paid, but the revenue refused to pay any interest accrued on the sums paid. . .
CitedRodriguez v Attorney General of Canada 30-Sep-1993
Canlii (Supreme Court of Canada) Constitutional law – Charter of Rights – Life, liberty and security of the person – Fundamental justice – Terminally ill patient seeking assistance to commit suicide – Whether . .
CitedBuckley v The United Kingdom ECHR 25-Sep-1996
The Commission had concluded, by a narrow majority, that the measures taken by the respondent in refusing planning permission and enforcing planning orders were excessive and disproportionate, even allowing a margin of appreciation enjoyed by the . .
CitedBellinger v Bellinger HL 10-Apr-2003
Transgendered Male/Female not to marry as Female
The parties had gone through a form of marriage, but Mrs B had previously undergone gender re-assignment surgery. Section 11(c) of the 1973 Act required a marriage to be between a male and a female. It was argued that the section was incompatible . .
CitedRegina v Kennedy HL 17-Oct-2007
The defendant had been convicted of manslaughter. He had supplied a class A drug to a friend who then died taking it. The House was asked ‘When is it appropriate to find someone guilty of manslaughter where that person has been involved in the . .
CitedCountryside Alliance and others, Regina (on the Application of) v Attorney General and Another HL 28-Nov-2007
The appellants said that the 2004 Act infringed their rights under articles 8 11 and 14 and Art 1 of protocol 1.
Held: Article 8 protected the right to private and family life. Its purpose was to protect individuals from unjustified intrusion . .
CitedIn re P and Others, (Adoption: Unmarried couple) (Northern Ireland); In re G HL 18-Jun-2008
The applicants complained that as an unmarried couple they had been excluded from consideration as adopters.
Held: Northern Ireland legislation had not moved in the same way as it had for other jurisdictions within the UK. The greater . .
CitedGreens v The United Kingdom ECHR 23-Nov-2010
The applicants alleged a violation of article 3 in the refusal to allow them to enrol on the electoral register whilst serving prison sentences.
Held: Where one of its judgments raises issues of general public importance and sensitivity, in . .
CitedSinclair Collis Ltd, Regina (on The Application of) v The Secretary of State for Health CA 17-Jun-2011
The claimants sought to challenge the validity of rules brought in under the 2009 Act as to the placement of cigarette vending machines in retail outlets. They said it was a a national measure restricting the free movement of goods. The . .
CitedA, B And C v Ireland ECHR 16-Dec-2010
Grand Chamber – The Court considered the prohibition of abortion in Ireland: ‘The first two applicants principally complained under Article 8 about, inter alia, the prohibition of abortion for health and well-being reasons in Ireland and the third . .
CitedHaas v Switzerland ECHR 20-Jan-2011
The applicant was severely bipolar, and wanted to obtain a lethal dose of a drug to kill himself, but could not do so, because Swiss law required him to get a prescription, and, before he could do that, he needed a psychiatric assessment. Relying on . .
CitedLautsi v Italy ECHR 18-Mar-2011
(Grand Chamber) The applicants complained that the presence in all state schoolrooms of a crucifix on the wall infringed the principle of secularism. The routine presence in state school classrooms of a crucifix, which was not used for worship, . .
CitedAXA General Insurance Ltd and Others v Lord Advocate and Others SC 12-Oct-2011
Standing to Claim under A1P1 ECHR
The appellants had written employers’ liability insurance policies. They appealed against rejection of their challenge to the 2009 Act which provided that asymptomatic pleural plaques, pleural thickening and asbestosis should constitute actionable . .
CitedQuila and Another, Regina (on The Application of) v Secretary of State for The Home Department SC 12-Oct-2011
Parties challenged the rule allowing the respondent to deny the right to enter or remain here to non EU citizens marrying a person settled and present here where either party was under the age of 21. The aim of the rule was to deter forced . .
CitedAbdullah Yasa And Others v Turkey ECHR 16-Jul-2013
Article 3
Degrading treatment
Inhuman treatment
Serious injury to nose caused by tear gas canister fired by police officer: violation
Article 46
Article 46-2
Execution of judgment
Measures of a general . .
CitedSidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital HL 21-Feb-1985
The plaintiff alleged negligence in the failure by a surgeon to disclose or explain to her the risks inherent in the operation which he had advised.
Held: The appeal failed. A mentally competent patient has an absolute right to refuse to . .
CitedWeber and Saravia v Germany ECHR 29-Jun-2006
(Admissibility) ‘The first applicant is a freelance journalist who works for various German and foreign newspapers, radio and television stations on a regular basis. In particular, she investigates matters that are subject to the surveillance of the . .
CitedHuang v Secretary of State for the Home Department HL 21-Mar-2007
Appellate Roles – Human Rights – Families Split
The House considered the decision making role of immigration appellate authorities when deciding appeals on Human Rights grounds, against refusal of leave to enter or remain, under section 65. In each case the asylum applicant had had his own . .
CitedGillan and Quinton v The United Kingdom ECHR 12-Jan-2010
The claimants had been stopped by the police using powers in the 2000 Act. They were going to a demonstration outside an arms convention. There was no reason given for any suspicion that the searches were needed.
Held: The powers given to the . .

Cited by:
CitedRecovery of Medical Costs for Asbestos Diseases (Wales) Bill (Reference By The Counsel General for Wales) SC 9-Feb-2015
The court was asked whether the Bill was within the competence of the Welsh Assembly. The Bill purported to impose NHS charges on those from whom asbestos related damages were recovered.
Held: The Bill fell outside the legislative competence . .
At SCNicklinson and Lamb v United Kingdom ECHR 16-Jul-2015
The applicants, suffering life threatening and severely disabling conditions, complained of laws which would allow the criminal prosecutions of those assisting them to end their lives. . .
At HLNicklinson and Lamb v The United Kingdom ECHR 23-Jun-2015
ECHR Article 8-1
Respect for private life
Ban on assisted suicide and voluntary euthanasia: inadmissible
Facts – The first applicant is the wife of Tony Nicklinson, now deceased, who suffered . .
CitedKenward and Another, Regina (on The Application of) v The Director of Public Prosecutions and Another Admn 4-Dec-2015
The claimants challenged the policy issued by the DPP on assisted suicide following the Nicklinson case.
Held: The request for judicial review was refused.
Sir Brian Leveson P said: ‘It is important not to misunderstand the effect either . .
CitedGaughran v Chief Constable of The Police Service of Northern Ireland (Northern Ireland) SC 13-May-2015
The court was asked as to to the right of the Police Service of Northern Ireland to retain personal information and data lawfully obtained from the appellant following his arrest for the offence of driving with excess alcohol.
Held: The appeal . .
CitedHuman Rights Commission for Judicial Review (Northern Ireland : Abortion) SC 7-Jun-2018
The Commission challenged the compatibility of the NI law relating to banning nearly all abortions with Human Rights Law. It now challenged a decision that it did not have standing to bring the case.
Held: (Lady Hale, Lord Kerr and Lord Wilson . .

Lists of cited by and citing cases may be incomplete.

Health, Crime, Human Rights

Leading Case

Updated: 11 November 2021; Ref: scu.527183

A and Others v Minister van Buitenlandse Zaken: ECJ 14 Mar 2017

Account freezing was act of State, not EU

ECJ (Area of Freedom, Security and Justice Area of Freedom, Security and Justice External Relations : Common Foreign and Security Policy Fundamental Rights : Charter of Fundamental Rights – Judgment)Reference for a preliminary ruling – Common Foreign and Security Policy (CFSP) – Specific restrictive measures directed against certain persons and entities with a view to combating terrorism – Common Position 2001/931/CFSP – Framework Decision 2002/475/JHA – Regulation (EC) No 2580/2001 – Article 2(3) – Inclusion of the ‘Liberation Tigers of Tamil Eelam (LTTE)’ on the list of persons, groups and entities involved in terrorist acts – Question referred for a preliminary ruling concerning the validity of that inclusion – Compliance with international humanitarian law – Concept of ‘terrorist act’ – Actions by armed forces during periods of armed conflict

K. Lenaerts, P
ECLI:EU:C:2017:202, [2017] EUECJ C-158/14, [2017] WLR(D) 180
Bailii, WLRD

Human Rights, Crime, Banking

Updated: 11 November 2021; Ref: scu.580690

Sibartie, Regina v: CACD 21 Apr 1983

The defendant appealed against his conviction for a dishonest attempt to avoid payment. He had made regular trips on the London underground, and had purchased two weekly season tickets, one for each end of his journey, but not in respect of the middle part. He now argued that the judge had incorrectly interpreted sub-paragraph (c). He said that subsection (c) dealt with a potential liability, or alternatively, a liability created at the time of the fraud, and does not extend to the type of situation of the case.
Held: The appeal failed: ‘the traveller on the underground is saying, albeit tacitly by waving the season tickets in the air, ‘I am the holder of a ticket which authorises me to be making this journey without further payment. Consequently I am not under any liability to pay any more.’ In the ordinary meaning of the words it seems to us that that is dishonestly obtaining, or attempting to obtain, an exemption from the liability to pay the excess fare which, if he had been honest, he would have had to pay. As we say, the fact that it may also have been an attempt to commit an offence under subsection (b) is neither here nor there. Consequently, upon those grounds, in our judgment, the learned Judge was right not to stop the case, as Mr. Blair-Gould submitted he should have, at the end of the prosecution case, and also in his direction to the jury which it is not necessary for us to read.’

Lord Lane LCJ, McCowan, Nolan JJ
[1983] EWCA Crim 3, [1983] Crim LR 470
Theft Act 1978 2(1)(c)
England and Wales


Leading Case

Updated: 11 November 2021; Ref: scu.247948

Partridge v Crittenden: QBD 1968

The defendant advertised for sale ‘Bramblefinch cocks, Bramblefinch hens, 25s each’. It would be an offence unlawfully to offer a wild live bird for sale.
Held: The advert was an invitation to treat, not an offer for sale, and he was not guilty.

[1968] 2 All ER 421, [1968] 1 WLR 1204
Protection of Birds Act 1954 6(1) Sch 4
England and Wales

Contract, Animals, Crime

Leading Case

Updated: 10 November 2021; Ref: scu.252547

Clingham (formerly C (a minor)) v Royal Borough of Kensington and Chelsea; Regina v Crown Court at Manchester Ex parte McCann and Others: HL 17 Oct 2002

The applicants had been made subject of anti-social behaviour orders. They challenged the basis upon which the orders had been made.
Held: The orders had no identifiable consequences which would make the process a criminal one. Civil standards of evidence therefore applied, and hearsay evidence was admissible. Nevertheless, the test as to whether it was appropriate to make an order was to the criminal standard. It had been Parliament’s intention to cast these proceedings in a civil mould. The absence of a punitive element in the resulting order, meant that Human Rights law did not make it a criminal procedure. ‘proceedings to obtain an anti-social behaviour order are civil proceedings under domestic law.’ Nevertheless, the heightened civil standard had become almost indistinguishable from the standard in criminal cases, and the case must be proved to the heightened civil standard. Though an anti-social behaviour order may impose restrictions greater than would be a criminal penalty, the essential purpose of an oder is preventative.

Steyn, Hope, Hutton, Hobhouse, Scott LL
Times 21-Oct-2002, [2002] UKHL 39, [2002] 3 WLR 1313, [2003] 1 AC 787, [2002] 4 All ER 593, [2003] BLGR 57, [2002] 13 BHRC 482, (2002) 166 JPN 850, (2002) 166 JP 657, [2003] HLR 17, [2002] UKHRR 1286, [2003] 1 Cr App R 27
House of Lords, Bailii
Crime and Disorder Act 1998 1, European Convention on Human Rights 6
England and Wales
CitedSteel and Others v The United Kingdom ECHR 23-Sep-1998
The several applicants had been arrested in different circumstances and each charged with breach of the peace contrary to common law. Under the Magistrates’ Court Act 1980, the court can bind over a Defendant to keep the peace, if the Defendant . .
CitedIn re H and R (Minors) (Child Sexual Abuse: Standard of Proof) HL 14-Dec-1995
Evidence allowed – Care Application after Abuse
Children had made allegations of serious sexual abuse against their step-father. He was acquitted at trial, but the local authority went ahead with care proceedings. The parents appealed against a finding that a likely risk to the children had still . .
Appeal fromRegina (McCann and Others) v Manchester Crown Court CA 9-Mar-2001
Proceedings applying for an anti-social behaviour order, were properly civil proceedings, with civil standards of evidence, and the Human Rights Act provisions relating to criminal proceedings, were not applicable either. The section included acts . .
At First InstanceRegina v Manchester Crown Court, ex parte McCann and others QBD 22-Nov-2000
An application for an anti-social behaviour order against an individual was a civil, not a criminal proceeding. The standard of evidence required was on the balance of probability; the civil standard. Such proceedings were not subject to the . .
CitedRegina v Kansal CACD 24-Jun-1992
K had been convicted of two counts of obtaining property by deception contrary to section 15 of the Theft Act 1968. He was also convicted of two counts under the Insolvency Act 1986, namely that being a bankrupt (a) he removed property which he was . .
CitedRegina v Kansal (2) HL 29-Nov-2001
The prosecutor had lead and relied at trial on evidence obtained by compulsory questioning under the 1986 Act.
Held: In doing so the prosecutor was acting to give effect to section 433.
The decision in Lambert to disallow retrospective . .
Appeal fromRegina v Marylebone Magistrates Court ex parte Andrew Clingham Admn 20-Feb-2001
The council received a report by a housing trust about the behaviour of the defendant, then aged 16, who lived on an estate within the Borough, and after investigating applied for an anti-social behaviour order. Some witness statements contained . .
CitedDombo Beheer BV v The Netherlands ECHR 27-Oct-1993
‘under the principle of equality of arms, as one of the features of the wider concept of a fair trial, each party must be afforded a reasonable opportunity to present his case under conditions that do not place him at a disadvantage vis-a-vis his . .
CitedRegina v Secretary of State for Trade and Industry Ex Parte McCormick CA 10-Feb-1998
Statements made under compulsion could be used in disqualification proceedings at discretion of the Secretary of State. . .
CitedIn Re Carecraft Construction Co Ltd ChD 13-Oct-1993
A court must hear evidence before disqualifying directors. Though the Director and the Secretary of State might reach an agreement as to what should happen, they could not displace the court in deciding what order should be made, and in making that . .
CitedOfficial Receiver v Stern and Another CA 20-Nov-2001
The director appealed against a 12 year disqualification. The basis of the disqualification was unlawful trading to the detriment of creditors, and taking excess drawings. . .
CitedGough and Another v Chief Constable of Derbyshire CA 20-Mar-2002
The appellants challenged the legality under European law of orders under the Act restricting their freedom of movement, after suspicion of involvement in football violence.
Held: Although the proceedings under which orders were made were . .
CitedGough and Another v Chief Constable of Derbyshire; Regina (Miller) v Leeds Magistrates’ Court; Lilley v Director of Public Prosecutions QBD 13-Jul-2001
Challenges were made to the powers banning the free movement of those convicted of offences of violence. Orders had been made banning the applicants from attending football matches, and requiring attendance at police stations at times of matches . .
CitedStott (Procurator Fiscal, Dunfermline) and Another v Brown PC 5-Dec-2000
The system under which the registered keeper of a vehicle was obliged to identify herself as the driver, and such admission was to be used subsequently as evidence against her on a charge of driving with excess alcohol, was not a breach of her right . .
CitedProprietary Articles Trade Association v Attorney-General for Canada PC 1931
The Board was asked how to identify whether an allegation amounted to a criminal one. Lord Atkin said: ‘It appears to their Lordships to be of little value to seek to confine crimes to a category of acts which by their very nature belong to the . .
CitedB v Chief Constable of Avon and Somerset Constabulary QBD 5-Apr-2000
The defendant appealed the making of a sex offender order under 1998 Act. The justices had found that the defendant was a sex offender within section 2(1)(a) and that he had acted on a number of occasions in a way which brought him within section . .
CitedCustoms and Excise Commissioners v City of London Magistrates’ Court QBD 2000
Access orders were sought by the Customs and Excise against banks to facilitate an investigation into the affairs of taxpayers and the issue was whether the resulting proceedings constituted ‘criminal proceedings’ within the meaning of section . .
CitedAmand v Home Secretary and Minister of Defence of Royal Netherlands Government HL 1943
A Dutch serviceman who had been arrested for desertion and brought before a magistrate who ordered him to be handed over to the Dutch military authorities under the Allied Forces Act 1940. An application for habeas corpus was rejected by a . .
CitedEngel And Others v The Netherlands (1) ECHR 8-Jun-1976
The court was asked whether proceedings in a military court against soldiers for disciplinary offences involved criminal charges within the meaning of Article 6(1): ‘In this connection, it is first necessary to know whether the provision(s) defining . .
CitedHan and Yau t/a Murdishaw Supper Bar, and Others v Commissioners of Customs and Excise CA 3-Jul-2001
The applicant claimed that proceedings under which he had been accused of fraud in dishonestly evading VAT liability were in reality criminal proceedings and that the minimum standards of a fair trial applied.
Held: The characterisation under . .
CitedS v Miller SCS 2001
After an assault S, aged 15, was detained, arrested and charged with assaulting L. The procurator fiscal decided not to prosecute, and the matter was reported to the police and to the reporter and on to a children’s hearing to consider if measures . .
CitedMcGregor v D 1977
With regard to proceedings under the 1968 Act, in no sense were these proceedings criminal proceedings. They were on the contrary civil proceedings sui generis. Where the ground of referral is that the child has committed an offence and the sheriff . .
CitedLutz v Germany ECHR 25-Aug-1987
Only criminal charges attract the additional protections under article 6(2) and 6(3). Insofar as these provisions apply to ‘everyone charged with a criminal offence’ it is well established in the jurisprudence of the European Court of Human Rights . .
CitedAlbert And Le Compte v Belgium (Article 50) ECHR 24-Oct-1983
The applicants were Belgian nationals and medical practitioners. Dr Le Compte was suspended from practising medicine for two years for an offence against professional discipline. He appealed to the Appeals Council, alleging violations of Article 6. . .
CitedConstanda v M SCS 1977
The child had been referred to a children’s hearing on the basis that he was exposed to moral danger in terms of section 32(2)(b).
Held: As the whole substratum of the ground of referral was that the child had performed certain acts which . .
CitedAdolf v Austria ECHR 26-Mar-1982
An elderly lady complained that the applicant had assaulted her. The police investigated and reported back to the prosecutor who referred the matter to the Innsbruck District Court. The court registered the case as a ‘punishable act’ under section . .
CitedBenham v United Kingdom ECHR 8-Feb-1995
Legal Aid was wrongfully refused where a tax or fine defaulter was liable to imprisonment, and the lack of a proper means enquiry, made imprisonment of poll tax defaulter unlawful. A poll tax defaulter had been wrongly committed to prison by . .
CitedRavnsborg v Sweden ECHR 23-Mar-1994
Article 6 did not apply to proceedings where the applicant had been fined for making improper statements in written observations before the Swedish courts. The proceedings were regarded as being outside the ambit of article 6 because they were . .
CitedDeweer v Belgium ECHR 27-Feb-1980
The applicant, a Belgian butcher, paid a fine by way of settlement in the face of an order for the closure of his shop until judgment was given in an intended criminal prosecution or until such fine was paid.
Held: Since the payment was made . .
CitedGaryfallou Aebe v Greece ECHR 24-Sep-1997
The fact that only a fine was imposed did not prevent an allegation being one of a criminal offence. . .
CitedBendenoun v France ECHR 24-Feb-1994
The applicant complained of non-disclosure by the prosecution.
Held: His application failed because the undisclosed material had not been relied on by the prosecution and he had given no sufficiently specific reasons for requesting the . .
CitedMcFeeley and others v The United Kingdom ECHR 15-May-1980
(Commission) The claimants had been convicted of terrorist-type offences in Northern Ireland and were serving prisoners in HMP The Maze. They protested at a change of regime imposed in 1976, resulting in them not being permitted association with the . .
CitedRaimondo v Italy ECHR 22-Feb-1994
The applicant was arrested and placed under house arrest on charges relating to his association with the Mafia. As an interim measure some of his property was seized. The proceedings ended in his acquittal. He claimed that the seizure of his . .
IllustrativeSaidi v France ECHR 20-Sep-1993
S had been convicted on the basis of the evidence of drug addicts and in the situation where there was no opportunity to confront the witness.
Held: ‘The court reiterates that the taking of evidence is governed primarily by the rules of . .
CitedGuzzardi v Italy ECHR 6-Nov-1980
The applicant, a suspected Mafioso, had been detained in custody pending his trial. At the end of the maximum period of detention pending trial, he had been taken to an island where, he complained, he was unable to work, keep his family permanently . .
CitedM v Italy ECHR 1991
The Commission held that article 6(2) did not apply to the confiscation of property belonging to a person suspected of being a member of a mafia-type organisation. . .
IllustrativeKostovski v The Netherlands ECHR 20-Nov-1989
No Anonymity for Witnessses in Criminal Trial
K was convicted of armed robbery on the basis of statements of anonymous witnesses. He was unable to question those witnesses at any stage. Being unaware of the identity of the witnesses deprived K of the very particulars which would have enabled . .
CitedOzturk v Germany ECHR 21-Feb-1984
A minor infringement may be the subject of a criminal charge: ‘If the Contracting States were able at their discretion, by classifying an offence as ‘regulatory’ instead of criminal, to exclude the operation of the fundamental clauses of Articles 6 . .
IllustrativeUnterpertinger v Austria ECHR 24-Nov-1986
The defendant was convicted of causing actual bodily harm, mainly on the basis of statements which his wife and daughter had given to the police. His wife and daughter took advantage of their right not to give evidence at his trial and so could not . .
CitedPercy v Director of Public Prosecutions QBD 13-Dec-1994
A woman protester repeatedly climbed over the perimeter fencing into a military base.
Held: The defendant had a choice between agreeing to be bound over and going to prison. Her refusal to agree to be bound over had an immediate and obvious . .
CitedIn re S (Minors) (Care Order: Implementation of Care Plan) HL 14-Mar-2002
Section 3(1) of the 1998 Act is not available where the suggested interpretation is contrary to express statutory words or is by implication necessarily contradicted by the statute. The judge’s task is to interpret, not to legislate. The proposed . .
CitedSporrong and Lonnroth v Sweden ECHR 23-Sep-1982
Balance of Interests in peaceful enjoyment claim
(Plenary Court) The claimants challenged orders expropriating their properties for redevelopment, and the banning of construction pending redevelopment. The orders remained in place for many years.
Held: Article 1 comprises three distinct . .
CitedDoorson v The Netherlands ECHR 26-Mar-1996
Evidence was given in criminal trials by anonymous witnesses and evidence was also read as a result of a witness having appeared at the trial but then absconded. The defendant was convicted of drug trafficking. As regards the anonymous witnesses, . .
CitedPercy v Director of Public Prosecutions QBD 13-Dec-1994
A woman protester repeatedly climbed over the perimeter fencing into a military base.
Held: The defendant had a choice between agreeing to be bound over and going to prison. Her refusal to agree to be bound over had an immediate and obvious . .

Cited by:
CitedThe Chief Constable of Lancashire v Potter Admn 13-Oct-2003
The claimant appealed refusal of an Anti-Social Behaviour order by the magistrates. The respondent was a street prostitute in Preston. The magistrates had declined to aggregate her behaviour with that of others to find that it caused harrassment . .
CitedIn re LU (A Child); In re LB (A Child) (Serious Injury: Standard of Proof); re U (A Child) (Department for Education and Skills intervening) CA 14-May-2004
In each case, the other parent appealed care orders where she had been found to have injured her children. In each case the sole evidence was the injury to the child’s health and expert medical evidence. The cases were referred following the . .
CitedRegina v Parole Board ex parte Smith, Regina v Parole Board ex parte West (Conjoined Appeals) HL 27-Jan-2005
Each defendant challenged the way he had been treated on revocation of his parole licence, saying he should have been given the opportunity to make oral representations.
Held: The prisoners’ appeals were allowed.
Lord Bingham stated: . .
CitedCommissioner of Police of the Metropolis v Hooper QBD 16-Feb-2005
The police applied to the court for a closure order in respect of premises they said were being used for the sale of Class A drugs. The tenant sought an adjournment, which was granted as were two later applications. On the last hearing, the police . .
CitedMoat Housing Group-South Ltd v Harris and Another CA 16-Mar-2005
The defendant family was served without notice with an anti-social behaviour order ordering them to leave their home immediately, and making other very substantial restrictions. The evidence in large part related to other people entirely.
CitedR, Regina (on the Application of) v Durham Constabulary and Another HL 17-Mar-2005
The appellant, a boy aged 15, had been warned as to admitted indecent assaults on girls. He complained that it had not been explained to him that the result would be that his name would be placed on the sex offenders register. The Chief Constable . .
DistinguishedRegina (DJ) v Mental Health Review Tribunal; Regina (AN) v Mental Health Review Tribunal (Northern Region) Admn 11-Apr-2005
Each applicant sought judicial review of the refusal of the tribunal to authorise their release from detention under the 1983 Act, saying that the Tribunal had accepted evidence to a lower standard of proof.
Held: Neither the criminal standard . .
Appealed toRegina (McCann and Others) v Manchester Crown Court CA 9-Mar-2001
Proceedings applying for an anti-social behaviour order, were properly civil proceedings, with civil standards of evidence, and the Human Rights Act provisions relating to criminal proceedings, were not applicable either. The section included acts . .
Appealed toRegina v Marylebone Magistrates Court ex parte Andrew Clingham Admn 20-Feb-2001
The council received a report by a housing trust about the behaviour of the defendant, then aged 16, who lived on an estate within the Borough, and after investigating applied for an anti-social behaviour order. Some witness statements contained . .
CitedCampbell v Hamlet (as executrix of Simon Alexander) PC 25-Apr-2005
(Trinidad and Tobago) The appellant was an attorney. A complaint was made that he had been given money to buy land, but neither had the land been conveyed nor the money returned. The complaint began in 1988, but final speeches were not heard until . .
CitedAN, Regina (on the Application of) v Mental Health Review Tribunal (Northern Region) and others CA 21-Dec-2005
The appellant was detained under section 37 of the 1983 Act as a mental patient with a restriction under section 41. He sought his release.
Held: The standard of proof in such applications remained the balance of probabilities, but that . .
CitedChief Constable of Merseyside Police v Harrison Admn 7-Apr-2006
The occupier of property appealed against a closure order. It was said that it had been used for the sale of drugs. The question was whether the civil standard of proof applied, as it was used in anti-social behaviour orders, when an application was . .
CitedMB, Re, Secretary of State for the Home Department v MB Admn 12-Apr-2006
The applicant challenged the terms of a non-derogating control order. It was anticipated that unless prevented, he would fight against UK forces in Iraq.
Held: The section allowed the Secretary of State to impose any necessary conditions, but . .
CitedO v Crown Court at Harrow HL 26-Jul-2006
The claimant said that his continued detention after the custody time limits had expired was an infringement of his human rights. He faced continued detention having been refused bail because of his arrest on a grave charge, having a previous . .
CitedIn re D; Doherty, Re (Northern Ireland); Life Sentence Review Commissioners v D HL 11-Jun-2008
The Sentence Review Commissioners had decided not to order the release of the prisoner, who was serving a life sentence. He had been released on licence from a life sentence and then committed further serious sexual offences against under-age girls . .
CitedIn re B (Children) (Care Proceedings: Standard of Proof) (CAFCASS intervening) HL 11-Jun-2008
Balance of probabilities remains standard of proof
There had been cross allegations of abuse within the family, and concerns by the authorities for the children. The judge had been unable to decide whether the child had been shown to be ‘likely to suffer significant harm’ as a consequence. Having . .
CitedBirmingham City Council v Shafi and Another CA 30-Oct-2008
The Council appealed a finding that the court did not have jurisdiction to obtain without notice injunctions to control the behaviour of youths said to be creating a disturbance, including restricting their rights to enter certain parts of the city . .
CitedLangley v Preston Crown Court and others CACD 30-Oct-2008
The defendant sought to appeal against a ‘stand-alone’ anti-social behaviour order. The parties disputed whether an appeal lay. The act created an appeal against the making of an order but in this case it was a renewed order.
Held: In the . .
CitedIn re S-B (Children) (Care proceedings: Standard of proof) SC 14-Dec-2009
A child was found to have bruising consistent with physical abuse. Either or both parents might have caused it, but the judge felt it likely that only one had, that he was unable to decide which, and that they were not so serious that he had to say . .
CitedPerry v Chief Constable of Humberside Police Admn 18-Oct-2012
The defendant appealed against an anti-social behaviour order. He had been a journalist, and began a private newsletter and campaign alleging amongst other things corruption in the police. He complained that his article 10 rights had been infringed. . .
CitedNewman v Commissioner of the Police of the Metropolis Admn 25-Mar-2009
The defendant appealed against the admission of evidence on the respondent’s application for a football bannng order. A witness statement was based on intelligence reports which meant that the witness could not be effectively examined by he defence. . .
CitedBirmingham City Council v James and Another CA 17-May-2013
The appellant challenged an injunction under the 2009 Act excluding him from parts of Birmingham. He said that it prevented him visiting his mother.
Held: The appeal failed. Moore-Bick LJ said: ‘It was for the judge to decide on the basis of . .

Lists of cited by and citing cases may be incomplete.

Evidence, Crime, Human Rights

Leading Case

Updated: 10 November 2021; Ref: scu.177450

Carter-Brown and Others v Crown Prosecution Service: QBD 31 Jul 2017

Obstruction of Highway – Highway not clear

The apellant protesters had been convicted of obstructing the highway by affixing themselves to a fence by a roadway by the Atomic Weapons Establishment. They argued that the road was not a highway and that any obstruction was de minimis. In particular, a green line presumed to indicate the boundary of the road way had been found by the judge to have possibly been misplaced without satisfactory evidence.
Held: ‘I have reached the conclusion that the finding of fact made by District Judge Khan at paragraph 19 e. of the Case Stated cannot be reconciled with a finding that he was sure that the Appellants laid down upon the highway . . there was simply no evidence before the District Judge which would begin to justify the conclusion that an area of the road to the west of the green line, which had been part of the private road until the green line had been painted on the road, ceased to be part of the private road and became part of the highway. There was no evidence before him that this area of road had all the characteristics of a highway and certainly no evidence to establish that an additional area of the road had been dedicated as such.’

Burnett LJ, Sir Wyn Williams
[2017] EWHC 1955 (QB)
Highways Act 1980 32 137(1)
England and Wales
CitedKotegaonkar v Secretary of State for Environment, Food and Rural Affairs and Another Admn 19-Jul-2012
The court was asked: ‘can a way which is not connected to another public highway, or to some other point to which the public have a right of access, itself be a public highway?’ A path had been registered over part of te claimant’s land, but with no . .

Lists of cited by and citing cases may be incomplete.


Updated: 10 November 2021; Ref: scu.591415

Allenby (Benjamin) v HM Advocate: HCJ 30 Nov 1937


The appellant had been convicted of embezzlement im the course of hisbusiness acting as a fish sales agent. He paid all receipts into a common fund for payment on to the trawler owners, but had used part of the fund to make loans to some trawler owners.
Held: He had acted scrupulously, but unwisely. He would have been wiser to use distinct acconts, but the actions did not amount to embezzlement. The appeal was allowed.

Aitchison Lord Justice Clerk
[1937] ScotHC HCJAC – 2, 1938 JC 55, 1938 SLT 150

Scotland, Crime

Leading Case

Updated: 10 November 2021; Ref: scu.279169

Her Majestys Attorney General for Jersey v Holley: PC 15 Jun 2005

(Jersey) The defendant appealed his conviction for murder, claiming a misdirection on the law of provocation. A chronic alcoholic, he had admitted killing his girlfriend with an axe. Nine law lords convened to seek to reconcile conflicting decisions of the House as to provocation.
Held: The defence of provocation has two ingredients. The first, subjective or factual, ingredient, is that the defendant was provoked into losing his self-control. In deciding whether this ingredient exists in a particular case all evidence which is probative is admissible, including evidence of any mental or other abnormality making it more or less likely that the defendant lost his self-control. The second ingredient, the objective or evaluative ingredient, raises, in the language of the statute, ‘the question whether the provocation was enough to make a reasonable man do as he did . . [taking] into account everything both done and said according to the effect . . it would have on a reasonable man’. This ingredient has two elements. The first element calls for an assessment of the gravity of the provocation. The second element calls for application of an external standard of self-control: ‘whether the provocation was enough to make a reasonable man do as he did’.
Lord Nicholls of Birkenhead (Majority): Whilst the approach taken in Smith (Morgan) might be attractive, it was not accurate: ‘ The law of homicide is a highly sensitive and highly controversial area of the criminal law. In 1957 Parliament altered the common law relating to provocation and declared what the law on this subject should thenceforth be. In these circumstances it is not open to judges now to change (‘develop’) the common law and thereby depart from the law as declared by Parliament. ‘ and ‘Under the statute the sufficiency of the provocation (‘whether the provocation was enough to make a reasonable man do as [the defendant] did’) is to be judged by one standard, not a standard which varies from defendant to defendant. Whether the provocative act or words and the defendant’s response met the ‘ordinary person’ standard prescribed by the statute is the question the jury must consider, not the altogether looser question of whether, having regard to all the circumstances, the jury consider the loss of self-control was sufficiently excusable. The statute does not leave each jury free to set whatever standard they consider appropriate in the circumstances by which to judge whether the defendant’s conduct is ‘excusable’. ‘ and ‘In expressing their conclusion above their Lordships are not to be taken as accepting that the present state of the law is satisfactory. It is not. The widely held view is that the law relating to provocation is flawed to an extent beyond reform by the courts . . . Their Lordships share this view.’

Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hope of Craighead, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Baroness Hale of Richmond, Lord Carswell
[2005] UKPC 23, Times 21-Jun-2005, [2005] 3 WLR 29
Bailii, PC, PC
Homicide Act 1957 3
England and Wales
CitedRegina (Director of Public Prosecutions) v Camplin HL 1978
The court considered the direction to be given as to the existence of provocation so as to reduce a charge of murder to one of manslaughter. The reasonable man in the definition should be one with the defendant’s mental condition. ‘The judge should . .
CitedRegina v Morhall HL 21-Jul-1995
The defendant was a glue sniffer. He had been taunted, and eventually attacked one of those villifying him. The judge excluded from the jury that the characteristics he suffered as a glue sniffer which might affect his response to provocation.
CitedRex v Kirkham 1837
In order to reduce Killing of a person to the crime of manslaughter, there must not only be sufficient provocation, but the jury must be satisfied that the fatal blow was given in consequence of that provocation. If A. had formed a deliberate design . .
Wrongly DecidedRegina v Smith (Morgan James) HL 27-Jul-2000
The defendant had sought to rely upon the defence of provocation. He had suffered serious clinical depression.
Held: When directing a jury on the law of provocation, it was no longer appropriate to direct the jury to disregard any particular . .
CitedRegina v Welsh 1869
The judge directed the jury as to provocation saying that in order to reduce the crime to manslaughter, there should have been serious provocation, ‘something which might naturally cause an ordinary and reasonably minded man to lose his self-control . .
CitedLuc Thiet Thuan v The Queen PC 2-Apr-1996
(Hong Kong) On a trial for murder the defendant relied on the defences of diminished responsibility and provocation. Medical evidence showed the defendant suffered from brain damage and was prone to respond to minor provocation by losing his . .
CitedMancini v Director of Public Prosecutions HL 1942
There are exceptional cases to the rule in Woolmington for: ‘offences where onus of proof is specially dealt with by statute’. ‘There is no reason to repeat to the jury the warning as to reasonable doubt again and again, provided that the direction . .
CitedRegina v Duffy CCA 1949
The court approved Devlin J’s direction to the jury on the defence of provocation to a charge of murder which had described provocation: ‘Provocation is some act or series of acts done or words spoken by the dead man to the accused which would cause . .
CitedRegina v Raven CACD 1982
The 22-year old defendant had a mental age of 9 years. He said it was inappropriate when judging the availability of the defence of provocation to a charge of murder to ignore that fact. The Recorder of London ruled that, having regard to the test . .
CitedRegina v Ahluwalia CACD 31-Jul-1992
The appellant sought substitution of a conviction for manslaughter of her husband for that of his murder. She had long suffered violent treatment by him. She had not raised the issue of diminished responsibility at trial.
Held: The court . .

Cited by:
CitedVan Dongen and Another, Regina v CACD 5-Jul-2005
The defendant brothers appealed convictions for murder. They had pleaded self defence. The injuries on the deceased suggested a substantial number of wounds were inflicted when he was in a curled up defensive post.
Held: The provocation . .
CitedJames, Regina v; Regina v Karimi CACD 25-Jan-2006
The defendants appealed their convictions for murder, saying that the court had not properly guided the jury on provocation. The court was faced with apparently conflicting decision of the House of Lords (Smith) and the Privy Council (Holley).
PreferredMohammed, Regina v CACD 13-Jul-2005
The court granted permission to appeal against a conviction for murder on grounds that related to the judge’s summing up in respect of provocation: ‘Although Holley is a decision of the Privy Council and Morgan Smith a decision of the House of . .

Lists of cited by and citing cases may be incomplete.


Leading Case

Updated: 10 November 2021; Ref: scu.226982

Regina v Johnstone: HL 22 May 2003

The defendant was convicted under the 1994 Act of producing counterfeit CDs. He argued that the affixing of the name of the artist to the CD was not a trade mark use, and that the prosecution had first to establish a civil offence before his act could become criminal. The prosecutor appealed the decision of the Court of Appeal.
Held: Section 92 was designed to avoid the defence of describing goods as ‘genuine fakes’, but is to be interpreted as applying only when the offending sign is used as an indication of trade origin.
Lord Walker of Gestingthorpe: ”Trade mark use’ is a convenient shorthand expression for use of a registered trade mark for its proper purpose (that is, identifying and guaranteeing the trade origin of the goods to which it is applied) rather than for some other purpose.’ Whether the use of a name indicates the origin is a question of fact in each case. Satnam Singh is incorrect. 92(5) provides a defence where the person charged has a reasonable belief in the lawfulness of what he did. Those who act honestly and reasonably are not to be visited with criminal sanctions. It imposes on the accused the burden of proving the relevant facts on the balance of probability. That presumption requires justification. The more serious the punishment the greater the justification required. The persuasive burden placed on an accused by the defence is compatible with article 6(2).
Lord Nicholls: ‘But the essence of a trade mark has always been that it is a badge of origin. It indicates trade source: a connection in the course of trade between the goods and the proprietor of the mark.’

Lord Nicholls of Birkenhead, Lord Hope of Craighead, Lord Hutton, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe
[2003] UKHL 28, Times 29-May-2003, Gazette 03-Jul-2003, [2003] 1 WLR 1736, [2003] 3 All ER 884, [2004] ETMR 2, [2003] HRLR 25, [2003] UKHRR 1239, [2003] FSR 42, [2003] 2 Cr App R 33, (2003) 167 JP 281, (2003) 167 JPN 453
House of Lords, Bailii
Trade Marks Act 1994 9 10 11 12 13 92 94, European Convention on Human Rights 6.2
England and Wales
CitedRegina v Johnstone CACD 2002
. .
CitedScandecor Developments AB v Scandecor Marketing AV and Others and One Other Action HL 4-Apr-2001
A business had grown, but the two founders split, and set up separate business. There was no agreement as to the use of the trading names and trade marks. The original law of Trade Marks prohibited bare exclusive licenses, licences excluding the . .
CitedBritish Sugar Plc v James Roberston and Sons ChD 17-Feb-1996
The question was raised on whether, given its derivation from article 5 of the trade mark directive, non-trade mark use could be caught by sections 10(1) to (3).
Held: There was no trade mark infringement by the use of a common laudatory word. . .
CitedMothercare UK Ltd v Penguin Books CA 1988
The Trade Marks Act would only be concerned to restrict the use of a mark as a trade mark or in a trade mark sense, and should be construed accordingly. If descriptive words are legitimately registered [as a trade mark], there is still no reason why . .
CitedMarleasing SA v La Comercial Internacional de Alimentacion SA ECJ 13-Nov-1990
Sympathetic construction of national legislation
LMA OVIEDO sought a declaration that the contracts setting up Commercial International were void (a nullity) since they had been drawn up in order to defraud creditors. Commercial International relied on an EC . .
CitedSilhouette International Schmied GmbH and Co KG v Hartlauer Handelsgesellschaft mbH ECJ 16-Jul-1998
National Trade Mark rules providing for exhaustion of rights in Trade Marks for goods sold outside area of registration were contrary to the EU first directive on trade marks. A company could prevent sale of ‘grey goods’ within the internal market. . .
CitedZino Davidoff SA v A and G Imports Ltd etc ECJ 20-Nov-2001
An injunction was sought to prevent retailers marketing in the EEA products which had been obtained outside the EEA for resale within the EEA but outside the controlled distribution system.
Held: Silence alone was insufficient to constitute . .
CitedSabel BV v Puma AG, Rudolf Dassler Sport ECJ 11-Nov-1997
The test of whether a sign is confusing is how the use of the sign would be perceived by the average consumer of the type of goods in question. ‘The likelihood of confusion must therefore be appreciated globally, taking into account all factors . .
CitedKoninklijke Philips Electronics NV v Remington Consumer Products Ltd ECJ 18-Jun-2002
The claimant developed a three headed rotary razor for men. They obtained registration of the arrangement as a trade mark. They sued the defendant for infringement, and the defendant countered challenging the validity of the registration, saying the . .
CitedArsenal Football Club plc v Reed ECJ 12-Nov-2002
The trade mark owner sought orders against a street vendor who sold articles using their marks. He asserted that the marks were not attached to show any quality, but were used by the fans as badges of allegiance.
Held: The function of a trade . .
DoubtedTorbay Council v Singh Admn 10-Jun-1999
The court was asked if the section 92(5) defence applied where the defendant does not know of the existence of the registered trade mark in question.
Held: The defence is not available in such a case. The court noted that section 92(5) speaks . .
CitedRegina v Rhodes CACD 2002
Andrew Smith J: ‘No doubt in many cases the fact that a trader could ascertain whether a trade mark was registered by searching the register will make it extremely difficult to establish a belief involving ignorance of a registered mark is held on . .
DoubtedRegina v Keane CACD 2001
. .
CitedRegina v S (Trade Mark Defence) (Roger Sliney v London Borough of Havering) CACD 20-Nov-2002
The defendant alleged that the offence of which had been convicted, under the 1994 Act, infringed his rights under article 6.2 in reversing the burden of proof.
Held: The principle that the duty of proof lay on the prosecution was subject to . .
CitedSalabiaku v France ECHR 7-Oct-1988
A Zairese national living in Paris, went to the airport to collect, as he said, a parcel of foodstuffs sent from Africa. He could not find this, but was shown a locked trunk, which he was advised to leave alone. He however took possession of it, . .
CitedRegina v Lambert HL 5-Jul-2001
Restraint on Interference with Burden of Proof
The defendant had been convicted for possessing drugs found on him in a bag when he was arrested. He denied knowing of them. He was convicted having failed to prove, on a balance of probabilities, that he had not known of the drugs. The case was . .
CitedRegina v Director of Public Prosecutions, ex parte Kebilene and others HL 28-Oct-1999
(Orse Kebeline) The DPP’s appeal succeeded. A decision by the DPP to authorise a prosecution could not be judicially reviewed unless dishonesty, bad faith, or some other exceptional circumstance could be shown. A suggestion that the offence for . .
CitedAttorney General of Hong Kong v Lee Kwong-Kut PC 1993
(Hong Kong) In order to maintain the balance between the individual and the society as a whole, rigid and inflexible standards should not be imposed on the legislature’s attempts to resolve the difficult and intransigent problems with which society . .

Cited by:
Appealed toRegina v Johnstone CACD 2002
. .
CitedWilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent of its property . .
CitedInter Lotto (Uk) Ltd v Camelot Group Plc CA 30-Jul-2003
The claimant and defendant had each operated using a the name ‘HotSpot’ for a name for its lottery. The respondent had registered the name as a trade mark. The claimant began to use the name first and claimed in passing off, and the respondent . .
CitedRegina v Edwards, Denton and Jackson Hendley Crowley; Attorney General’s Reference (No. 1 of 2004) CACD 29-Apr-2004
The court considered references by the Attorney-General with regard to offences imposing a burden of proof upon the defendant. ‘An evidential burden will be discharged by a defendant by ensuring that there is some evidence before the court which . .
CitedSheldrake v Director of Public Prosecutions; Attorney General’s Reference No 4 of 2002 HL 14-Oct-2004
Appeals were brought complaining as to the apparent reversal of the burden of proof in road traffic cases and in cases under the Terrorism Acts. Was a legal or an evidential burden placed on a defendant?
Held: Lord Bingham of Cornhill said: . .
CitedRegina v Fraydon Navabi; Senait Tekie Embaye CACD 11-Nov-2005
The defendants had been convicted of not having an immigration document when presenting themselves for interview. They had handed their passports to the ‘agents’ who had assisted their entry.
Held: The jury should have been directed as to the . .
CitedRegina v Makuwa CACD 23-Feb-2006
The defendant appealed her conviction for using a false instrument (a passport) intending someone else to accept it as genuine.
Held: Once she had brought forward sufficient evidence to support a claim to asylum status, it was then for the . .
CitedApple Corps Ltd v Apple Computer Inc ChD 8-May-2006
The parties had several years ago compromised an action for trade mark infringement on the basis that the defendant would not use the Apple logo in association with areas of commercial activity, including the sale of ‘work whose principal content is . .
CitedWest Sussex County Council, Regina (on the Application of) v Kahraman Admn 13-Jun-2006
The complainant appealed dismissal of charges against the respondent of displaying for sale goods bearing marks identical to registered trade marks. The defendant asserted that he had reasonable grounds for belief that the goods were not counterfeit . .
CitedL’Oreal Sa and others v Bellure NV and others ChD 4-Oct-2006
The claimant alleged that the defendants had been importing copies of their perfumes. The products were not counterfeits, but ‘smell-alikes’. The defendants’ packaging and naming was used to suggest which perfume it resembled.
Held: The . .
CitedChargot Limited (T/A Contract Services) and Others, Regina v HL 10-Dec-2008
The victim died on a farm when his dumper truck overturned burying him in its load.
Held: The prosecutor needed to establish a prima facie case that the results required by the Act had not been achieved. He need only establish that a risk of . .
CitedEssex Trading Standards v Singh Admn 3-Mar-2009
The defendant had been accused of selling counterfeit trainer shoes. The prosecutor appealed against dismissal of the prosecution on the basis that the defenant had not known that they were counterfeit.
Held: The onus of proof lay on the . .
CitedWatkins v Woolas QBD 5-Nov-2010
The petitioner said that in the course of the election campaign, the respondent Labour candidate had used illegal practices in the form of deliberately misleading and racially inflammatory material.
Held: The claim succeeded, and the election . .
CitedShepherd v The Information Commissioner CACD 18-Jan-2019
The defendant had been part of an organisation subject to an investigation of child sex abuse. He was cleared of involvement, but had disseminated the confidential reports containing sensitive personal data to support his contention that the process . .
CitedRegina v C and Others CACD 1-Nov-2016
The court considered the existence of criminal liability under the 1994 Act for those importing from outside the EU and selling within the EU items marked with trade marks but not manufactured by them (counterfeits) or licensed by the trade mark . .
CitedRegina v M and Others SC 3-Aug-2017
The defendants pursued an interlocutory appeal. They were being prosecuted inter alia for the sale of items manufactured elsewhere under trade mark licence, but then imported within the EU. They argued that the criminal offence did not apply since . .

Lists of cited by and citing cases may be incomplete.

Crime, Intellectual Property, Human Rights

Leading Case

Updated: 10 November 2021; Ref: scu.182479

Regina v Cheshire: CACD 1990

Novus actus interveniens

The defendant had shot a person during the course of an argument. The victim underwent surgery in hospital where a tracheotomy tube was inserted into his windpipe. Some weeks later, his condition deteriorated and he died two months after the incident. The victim’s windpipe was found on post mortem examination to have become obstructed because of narrowing near the site of the tracheotomy scar. Evidence was given in the proceedings that there had been a failure on the part of the treating doctors to have diagnosed and appropriately treated the victim’s deteriorating condition. The defendant was found guilty of murder and appealed.
Held: The court considered the doctrine of novus actus interveniens – whether or not there was the necessary causal relationship between the shooting of the victim by the defendant and the victim’s ultimate death so as to found a conviction for murder.
Beldam LJ said: ‘In the criminal law, and in particular in the law of homicide, whether the death of a deceased was the result of the accused’s criminal act is a question of fact for the jury, but it is a question of fact to be decided in accordance with legal principles explained to the jury by the judge.’
. . And: ‘Where the law requires proof of the relationship between an act and its consequences as an element of responsibility, a simple and sufficient explanation of the basis of such relationship has proved notoriously elusive.
In a case in which the jury have to consider whether negligence in the treatment of injuries inflicted by the accused was the cause of death we think it is sufficient for the judge to tell the jury that they must be satisfied that the Crown have proved that the acts of the accused caused the death of the deceased, adding that the accused’s acts need not be the sole cause or even the main cause of death, it being sufficient that his acts contributed significantly to that result. Even though negligence in the treatment of the victim was the immediate cause of his death, the jury should not regard it as excluding the responsibility of the accused unless the negligent treatment was so independent of his acts, and in itself so potent in causing death, that they regard the contribution made by his acts as insignificant.
It is not the function of the jury to evaluate competing causes or to choose which is dominant provided they are satisfied that the accused’s acts can fairly be said to have made a significant contribution to the victim’s death. We think the word ‘significant’ conveys the necessary substance of a contribution made to the death which is more than negligible. (

Beldam LJ
(1991) 93 Cr App R 251, [1991] 1 WLR 844, [1991] 3 All ER 670
England and Wales


Leading Case

Updated: 10 November 2021; Ref: scu.541407

Gammon (Hong Kong) Ltd v A-G of Hong Kong: PC 1984

Lord Scarman expressed the purpose of imposing strict liability within criminal law: ‘In their Lordships’ opinion, the law relevant to this appeal may be stated in the following propositions . . : (1) there is a presumption of law that mens rea is required before a person can be held guilty of a criminal offence; (2) the presumption is particularly strong where the offence is ‘truly criminal’ in character; (3) the presumption applies to statutory offences, and can be displaced only if this is clearly or by necessary implication the effect of the statute; (4) the only situation in which the presumption can be displaced is where the statute is concerned with an issue of social concern, and public safety is such an issue; (5) even where a statute is concerned with such an issue, the presumption of mens rea stands unless it can also be shown that the creation of strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act.’

Lord Scarman
[1985] AC 1, [1984] 2 All ER 503, [1984] 3 WLR 437, [1984] Crim LR 479, (1984) 80 Cr App R 194, [1985] LRC (Crim) 439
ConfirmedSherras v De Rutzen QBD 2-May-1895
The court considered the need to establish mens rea where it was dealing with something which was one of a class of acts which ‘are not criminal in any real sense, but are acts which in the public interest are prohibited under a penalty’, and ‘There . .

Cited by:
CitedThames Water Utilities Ltd v Bromley Magistrates’ Court Admn 20-Mar-2013
Sewage had escaped from the company’s facilities. They now sought judicial review of their conviction under the 1990 Act, saying there had been no ‘deposit’ of sewage.
Held: The request for review failed: ‘the answer to the question whether . .
CitedBrown, Regina v (Northern Ireland) SC 26-Jun-2013
The complainaint, a 13 year old girl had first said that the defendant had had intercourse with her againt her consent. After his arrest, she accepted that this was untrue. On being recharged with unlawful intercourse, he admitted guilt believing he . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Crime

Leading Case

Updated: 10 November 2021; Ref: scu.471928

Redmond-Bate v Director of Public Prosecutions: Admn 23 Jul 1999

The police had arrested three peaceful but vociferous preachers when some members of a crowd gathered round them threatened hostility.
Held: Freedom of speech means nothing unless it includes the freedom to be irritating, contentious, eccentric, heretical, unwelcome and provocative provided it did not tend to provoke violence. There was no reasonable inference available in this case to the police officer that the appellant, preaching about morality, was about to cause a breach of the peace.
Sedley LJ said: ‘A judgment as to the imminence of a breach of the peace does not conclude the constable’s task. The next and critical question for the constable, and in turn for the court, is where the threat is coming from, because it is there that preventive action must be directed. It is only if otherwise lawful conduct gives rise to a reasonable apprehension that it will, by interfering with the rights or liberties of others, provoke violence which, though unlawful, would not be entirely unreasonable that a constable is empowered to take steps to prevent it . . Mr Kealy for the prosecutor submitted that if there are two alternative sources of trouble, a constable can properly take steps against either. This is right, but only if both are threatening violence or behaving in a manner that might provoke violence’ and ‘The test to determine whether the police officer’s action was reasonable was an objective one, in the sense that it was for the courts to decide, not whether the view taken by that officer fell within the broad band of rational decisions but whether, in the light of what he knew and perceived at the time, the court was satisfied that it was reasonable to fear an imminent breach of the peace and that reasonableness had to be evaluated without the qualifications of hindsight.’
Sedley LJ said: ‘Freedom of speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative, provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having. What Speakers’ Corner (where the law applies as fully as anywhere else) demonstrates is the tolerance which is both extended by the law to opinion of every kind and expected by the law in the conduct of those who disagree, even strongly, with what they hear. From the condemnation of Socrates to the persecution of modern writers and journalists, our world has seen too many examples of state control of unofficial ideas. A central purpose of the European Convention on Human Rights has been to set close limits to any such assumed power. We in this country continue to owe a debt to the jury which in 1670 refused to convict the Quakers William Penn and William Mead for preaching ideas which offended against state orthodoxy.’

Sedley LJ
Times 28-Jul-1999, [2000] HRLR 249, [1999] EWHC Admin 733, (1999) 7 BHRC 375, [1999] Crim LR 998, (1999) 163 JP 789, CO/188/99
Bailii, Bailii
Police Act 1996 89(2)
England and Wales
CitedHandyside v The United Kingdom ECHR 7-Dec-1976
The appellant had published a ‘Little Red Schoolbook’. He was convicted under the 1959 and 1964 Acts on the basis that the book was obscene, it tending to deprave and corrupt its target audience, children. The book claimed that it was intended to . .
CitedBeatty v Gilbanks CA 1882
A lawful Salvation Army march attracted disorderly opposition and was therefore the occasion of a breach of the peace.
Held: It could not be found a case of unlawful assembly against the leaders of the Salvation Army. Accepting that a person . .
CitedDuncan v Jones KBD 1936
The appellant was about to make a public address in a situation in which the year before a disturbance had been incited by her speaking. A policeman believed reasonably that a breach of the peace would occur if the meeting was held, and ordered the . .
CitedWise v Dunning KBD 1902
A protestant preacher in Liverpool was held to be liable to be bound over to keep the peace upon proof that he habitually accompanied his public speeches with behaviour calculated to insult Roman Catholics. His actions had caused, and were liable to . .
CitedRegina v Howell (Errol) CACD 1981
The court considered the meaning of the legal concept of a breach of the peace.
Held: The essence is to be found in violence or threatened violence. ‘We entertain no doubt that a constable has a power of arrest where there is reasonable . .
CitedRegina v Nicol and Selvanayagam QBD 10-Nov-1995
The appellants appealed a bind-over for a finding that each appellant had been guilty of conduct whereby a breach of the peace was likely to be occasioned. The appellants, concerned about cruelty to animals, had obstructed an angling competition by . .
CitedPercy v Director of Public Prosecutions QBD 13-Dec-1994
A woman protester repeatedly climbed over the perimeter fencing into a military base.
Held: The defendant had a choice between agreeing to be bound over and going to prison. Her refusal to agree to be bound over had an immediate and obvious . .
CitedRegina v Morpeth Ward Justices, ex parte Ward 1992
A bind-over was upheld on people who had noisily and turbulently disrupted a pheasant shoot. . .

Cited by:
DistinguishedNorwood v Director of Public Prosecutions Admn 3-Jul-2003
The appellant a BNP member had displayed a large poster in his bedroom window saying ‘Islam out of Britain’. He was convicted of an aggravated attempt to cause alarm or distress. The offence was established on proof of several matters, unless the . .
CitedLaporte, Regina (on the Application of) v Gloucestershire Constabulary and others CA 8-Dec-2004
The claimant had been in a bus taking her and others to an intended demonstration. The police feared breaches of the peace, and stopped the bus, and ordered the driver to return to London, and escorted it to ensure it did not stop.
Held: The . .
CitedWragg, Regina (on the Application Of) v Director of Public Prosecutions Admn 15-Jun-2005
The court faced a case stated where the defendant had been accused of resisting arrest. The officers claimed to have anticipated a breach of the peace, having been called to a domestic dispute.
Held: Though the defendant had not behaved with . .
CitedSingh and others v Chief Constable of West Midlands Police QBD 4-Nov-2005
A play was presented which was seen by many Sikhs as offensive. Protesters were eventually ordered to disperse under s30 of the 2003 Act. The defendants appealed their convictions for having breached that order, saying that it interfered with their . .
CitedBibby v Chief Constable of Essex Police CA 6-Apr-2000
A bailiff sought to execute against goods in a shop against the will of the occupier. The police attended and when tempers were raised the police officer anticipated a breach of the peace by the bailiff and arrested him. He sought damages for that . .
CitedSingh, Regina (on the Application of) v Chief Constable of West Midlands Police CA 28-Jul-2006
Sikh protesters set out to picket a theatre production which they considered to offend their religion. The respondent used a existing ASBO dispersal order which had been obtained for other purposes, to control the demonstration.
Held: The . .
CitedLaporte, Regina (on the application of ) v Chief Constable of Gloucestershire HL 13-Dec-2006
The claimants had been in coaches being driven to take part in a demonstration at an air base. The defendant police officers stopped the coaches en route, and, without allowing any number of the claimants to get off, returned the coaches to London. . .
CitedRegina (Daly) v Secretary of State for the Home Department HL 23-May-2001
A prison policy requiring prisoners not to be present when their property was searched and their mail was examined was unlawful. The policy had been introduced after failures in search procedures where officers had been intimidated by the presence . .
CitedGaunt v OFCOM and Liberty QBD 13-Jul-2010
The claimant, a radio presenter sought judicial review of the respondent’s finding (against the broadcaster) that a radio interview he had conducted breached the Broadcasting Code. He had strongly criticised a proposal to ban smokers from being . .
CitedAbdul and Others v Director of Public Prosecutions Admn 16-Feb-2011
The defendants appealed against convictions for using threatening, abusive or insulting words or behaviour or disorderly behaviour . . within the hearing or sight of a person likely to be caused harassment, alarm or distress. He had attended a . .
CitedMoos and Another, Regina (on The Application of) v Commissioner of the Police of The Metropolis Admn 14-Apr-2011
The claimants, demonstrators at the G20 summit, complained of the police policy of kettling, the containment of a crowd over a period of time, not because they were expected to to behave unlawfully, but to ensure a separation from those who were. . .
CitedMcClure and Another, Regina (on The Application of) v The Commissioner of Police of The Metropolis CA 19-Jan-2012
The Commissioner appealed against a decision that certain aspects of its crowd control procedures exercised during a public protest were unlawful.
Held: The appeal succeeded. The issue came down to whether the commanding officer genuinely held . .
CitedDehal v Crown Prosecution Service Admn 27-Sep-2005
The appellant had been convicted under section 4 of the 1986 Act. He had been accused of attending at Luton Guruwarda and intending to cause distress. He said that he had gone only peacefully to express his true religious beliefs. He had left a . .
CitedJewish Rights Watch (T/A Jewish Human Rights Watch), Regina (on The Application of) v Leicester City Council Admn 28-Jun-2016
The claimant challenged the legaity of resolutions passed by three local authorities which were critical of the State of Israel. They said that the resolultions infringed the Public Sector Equality Duty under section 149 of the 2010 Act, and also . .
CitedRoberts and Others v Regina CACD 6-Dec-2018
Sentencing of Political Protesters
The defendants appealed against sentences for causing a public nuisance. They had been protesting against fracking by climbing aboard a lorry and blocking a main road for several days.
Held: The appeals from immediate custodial sentences were . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Crime, Police

Leading Case

Updated: 09 November 2021; Ref: scu.139996

Regina v Bartle and Commissioner of Police for the Metropolis and Others, ex parte Pinochet Ugarte; Regina v Evans and Similar (No 3): HL 24 Mar 1999

An application to extradite a former head of state for an offence which was not at the time an offence under English law would fail, but could proceed in respect of allegations of acts after that time. No immunity was intended for heads of state. International law prohibiting torture has the character of jus cogens or a peremptory norm: ‘the jus cogens nature of the international crime of torture justifies states in taking universal jurisdiction over torture wherever committed. International law provides that offences jus cogens may be punished by any state because the offenders are ‘common enemies of all mankind and all nations have an equal interest in their apprehension and prosecution:’ Demjanjuk v Petrovsky (1985) 603 F.supp. 1468′ and Lord Browne-Wilkinson: ‘It is a basic principle of international law that one sovereign state (the forum state) does not adjudicate on the conduct of a foreign state. The foreign state is entitled to procedural immunity from the process of the forum state. This immunity extends to both criminal and civil liability. State immunity probably grew from the historical immunity of the person of the monarch. In any event, such personal immunity of a head of state persist to the present day; a head of state is entitled to the same immunity as the state itself’

Lord Browne-Wilkinson, Lord Goff of Chieveley
Gazette 28-Apr-1999, [1999] UKHL 147, [2000] 1 AC 147, [1999] 2 WLR 825, [1999] 2 All ER 97
House of Lords, Bailii
International Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 1984 (1990) Cm 1775, State Immunity Act 1978, Extradition Act 1989
England and Wales
CitedHatch v Baez 1876
(United States) The plaintiff claimed that he had suffered injuries in the Dominican Republic as a result of acts done by the defendant in his official capacity of President of that Republic. The Court accepted that because the defendant was in New . .
CitedThe Republic of Ireland v The United Kingdom ECHR 18-Jan-1978
The UK lodged a derogation with the Court as regards its human rights obligations in Northern Ireland because of the need to control terroist activity. The Government of Ireland intervened. From August 1971 until December 1975 the UK authorities . .
CitedPlaya Larga (Owners of Cargo Lately Laden on Board) v I Congresso del Partido (Owners) HL 1983
The concept of absolute immunity for a Sovereign adopts a theory of restrictive immunity in so far as it concerns the activities of a State engaging in trade: (Lord Wilberforce) ‘It was argued by the [appellants] that even if the Republic of Cuba . .
CitedRegina v Sansom CACD 2-Jan-1991
The appellants had been charged with conspiracy contrary to section 1 of the Criminal Law Act 1977. The court rejected the argument that the principle laid down in Somchai referred only to the common law and that it could not be applied to . .
CitedAlcom Ltd v Republic of Colombia HL 1984
A bank account used to cover the day-to-day expenses of an Embassy, clearly served sovereign purposes and therefore was immune from enforcement measures. The Act of 1978 must be read against the background of customary international law current in . .
CitedDuke of Brunswick v The King of Hanover HL 31-Jul-1948
The Duke claimed that the King of Hanover had been involved in the removal of the Duke from his position as reigning Duke and in the maladministration of his estates.
Held: ‘A foreign Sovereign, coming into this country cannot be made . .
CitedIn re Piracy jure gentium PC 1934
Charges of piracy were brought against Chinese Nationals who had pursued and attacked a cargo junk. They were indicted in Hong Kong for the crime of piracy and found guilty subject to a question of law: ‘Whether an accused person may be convicted of . .
CitedAl-Adsani v Government of Kuwait and Others (No 2) CA 29-Mar-1996
The claimant alleged that he had suffered torture in a security prison in Kuwait, and he obtained leave to serve out of the jurisdiction on the Government of Kuwait, and on three individuals, one of whom at least was served, on the ground that he . .
CitedSomchai Liangsiriprasert v Government of the United States of America PC 1991
(Hong Kong) Application was made for the defendant’s extradition from Hong Kong to the USA. The question was whether a conspiracy entered into outside Hong Kong with the intention of committing the criminal offence of trafficking in drugs in Hong . .
CitedBuck v Attorney General CA 2-Jan-1965
By an action for declaratory relief, a challenge was offered to the validity of the Order in Council giving effect to the 1961 Act.
Held: The appeal failed. As a matter of international comity an English court should not grant declarations . .
CitedTrendtex Trading Corporation v Central Bank of Nigeria CA 1977
The court considered the developing international jurisdiction over commercial activities of state bodies which might enjoy state immunity, and sought to ascertain whether or not the Central Bank of Nigeria was entitled to immunity from suit.
Cited by:
CitedGoatley v The Governor of HM Prison Brixton and the Government of the Netherlands QBD 20-Jun-2002
The second respondent sought the extradition of the applicant for trial for drugs offences. He said that the alleged offences were extra terratorial to the second defendant, but that extradition was restricted to intra territorial offences.
CitedA, B, C, D, E, F, G, H, Mahmoud Abu Rideh Jamal Ajouaou v Secretary of State for the Home Department CA 11-Aug-2004
The claimants had each been detained without trial for more than two years, being held as suspected terrorists. They were free leave to return to their own countries, but they feared for their lives if returned. They complained that the evidence . .
CitedJones and Milling, Olditch and Pritchard, and Richards v Gloucestershire Crown Prosecution Service CACD 21-Jul-2004
The court considered the extent to which the defendants in the proceedings can rely on their beliefs as to the unlawfulness of the United Kingdom’s actions in preparing for, declaring, and waging war in Iraq in 2003 in a defence to a charge of . .
CitedJones and Milling, Olditch and Pritchard, and Richards v Gloucestershire Crown Prosecution Service CACD 21-Jul-2004
The court considered the extent to which the defendants in the proceedings can rely on their beliefs as to the unlawfulness of the United Kingdom’s actions in preparing for, declaring, and waging war in Iraq in 2003 in a defence to a charge of . .
CitedJones v Ministry of Interior Al-Mamlaka Al-Arabiya As Saudiya Kingdom of Saudi Arabia) and Another CA 28-Oct-2004
The claimants sought damages alleging torture by the respondent whilst held in custody in Saudi Arabia.
Held: Although the state enjoyed freedom from action, where the acts were ones of torture, and action could proceed against state officials . .
CitedRegina v Secretary of State for Home Department ex parte Augusto Pinochet Ugarte Admn 27-May-1999
The applicant, the former president of Chile, sought to challenge an order allowing an application for his extradition to proceed. He said that once the matters deemed inadmissible had been excluded, there was insufficicient ground to allow the . .
CitedAziz v Republic of Yemen CA 17-Jun-2005
The claimant had made a claim for unfair dismissal. The defendant state had filed a defence instead of claiming state immunity. It then sought to assert such immunity. The claimant said the state had waived its immunity.
Held: Section 2(7) of . .
CitedKadre v Government of France and Another Admn 29-Jul-2005
The applicant sought habeas corpus to prevent his extradition to France.
Held: The English court was not to be concerned with facts underlying an extradition request. The laws of France were framed differently, but the facts alleged would . .
CitedAlamieyeseigha, Regina (on the Application Of) v Crown Prosecution Service Admn 25-Nov-2005
The defendant argued that as Governor and Chief Excecutive of Bayelsa State in Nigeria he had sovereign immunity. The Foreign Office had issued a certificate that the defendant was not a Head of States under the 1978 Act. The A-G of Bayelsa had . .
CitedProsecutor v Furundzija 1-Apr-1999
(International Criminal Tribunal for the Former Yugoslavia) The court described the main features of the law against torture: ‘There exists today universal revulsion against torture: as a USA Court put it in Filartiga v. Pena-Irala, ‘the torturer . .
CitedA and others v Secretary of State for the Home Department (No 2) HL 8-Dec-2005
The applicants had been detained following the issue of certificates issued by the respondent that they posed a terrorist threat. They challenged the decisions of the Special Immigration Appeals Commission saying that evidence underlying the . .
CitedRegina v Jones (Margaret), Regina v Milling and others HL 29-Mar-2006
Domestic Offence requires Domestic Defence
Each defendant sought to raise by way of defence of their otherwise criminal actions, the fact that they were attempting to prevent the commission by the government of the crime of waging an aggressive war in Iraq, and that their acts were . .
CitedJones v Ministry of Interior for the Kingdom of Saudi Arabia and others HL 14-Jun-2006
The claimants said that they had been tortured by Saudi police when arrested on false charges. They sought damages, and appealed against an order denying jurisdiction over the defendants. They said that the allegation of torture allowed an exception . .
CitedHolland v Lampen-Wolfe HL 20-Jul-2000
The US established a base at Menwith Hill in Yorkshire, and provided educational services through its staff to staff families. The claimant a teacher employed at the base alleged that a report on her was defamatory. The defendant relied on state . .
CitedAziz v Aziz and others CA 11-Jul-2007
The claimant sought return of recordings and of money paid to the defendant through an alleged fraud or threats. She was the former wife of the Sultan of Brunei and head of state, who now sought an order requiring the court to protect his identity . .
CitedCorner House Research and Campaign Against Arms Trade, Regina (on the Application of) v Director of the Serious Fraud Office and Another Admn 10-Apr-2008
The defendant had had responsibility to investigate and if necessary prosecute a company suspected of serious offences of bribery and corruption in the conduct of contract negotiations. The investigation had been stopped, alledgedly at the . .
CitedMohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 1) Admn 21-Aug-2008
The claimant had been detained by the US in Guantanamo Bay suspected of terrorist involvement. He sought to support his defence documents from the respondent which showed that the evidence to be relied on in the US courts had been obtained by . .
CitedEquality and Human Rights Commission v Prime Minister and Others Admn 3-Oct-2011
The defendant had published a set of guidelines for intelligence officers called upon to detain and interrogate suspects. The defendant said that the guidelines could only be tested against individual real life cases, and that the court should not . .

Lists of cited by and citing cases may be incomplete.

Extradition, Crime

Leading Case

Updated: 09 November 2021; Ref: scu.158999

Parliament v Council C-263/14: ECJ 14 Jun 2016

ECJ (Judgment) Action for annulment – Common foreign and security policy (CFSP) -Decision 2014/198/CFSP – Agreement between the European Union and the United Republic of Tanzania on the conditions of transfer of suspected pirates and associated seized property from the European Union-led naval force to the United Republic of Tanzania – Choice of legal basis – Obligation to inform the European Parliament immediately and fully at all stages of the procedure of negotiation and conclusion of international agreements – Maintenance of the effects of the decision in the event of annulment

[2016] WLR(D) 307, ECLI:EU:C:2016:435, [2016] EUECJ C-263/14
WLRD, Bailii
Decision 2014/198/CFSP

European, Crime

Updated: 09 November 2021; Ref: scu.565626

Isle of Wight Council v Platt: SC 6 Apr 2017

Regular school attendance is following the rules

The respondent had taken his child out of school during term time to go on holiday. The child otherwise had an excellent attendance record. The Council having failed on appeal to the Administrative Court, it appealed saying that the word ‘regularly’ did not refer only to the the times of attendance.
Held: The Council’s appeal succeeded. Against the background history of the legislation, the court considered three possible meanings of ‘regualrly’, rejecting against that background meanings other than ‘In accordance with the rules’: ‘in section 444(1) of the Education Act 1996, ‘regularly’ means ‘in accordance with the rules prescribed by the school”.

Lord Neuberger, President, Lady Hale, Deputy President, Lord Mance, Lord Reed, Lord Hughes
UKSC 2016/0155
Bailii, Bailii Summary, SC, SC Summary, SC Video Summary, SC 31 Jan 17 am, SC 31 Jan 17 pm
Education Act 1996 444(1), Elementary Education Act 1870 5, Elementary Education Act 1880 2, Education Act 1944, Education (Penalty Notices) (England) Regulations 2007
England and Wales
Appeal fromIsle of Wight Council v Platt Admn 13-May-2016
The Council appealed by case stated against a decision by magistrates that a parent who took his child out of school to take a holiday hod not failed to ensure that the child attended regularly. The record was otherwise regular and satisfactory.
CitedLondon County Council v Maher 1929
The list of permissible reasons for non attendance at school listed in the 1870 Act is non-exclusive. . .
CitedEx parte the School Board of London, In re Murphy 1877
Cockburn CJ said ‘an occasional omission might suffice’ to constitute the offence under the bye-laws of not securing the regular attendance of a child at school, contrasting it with the graver sanction of a school attendance order which might result . .
CitedMarshall v Graham 1907
Parents were prosecuted for failing to send their children to school on Ascension Day. They argued that Ascension Day was a day ‘exclusively set aside for religious observance’ by the Church of England.
Held: A Church which is established is . .
CitedHares v Curtin 1913
. .
CitedBunt v Kent 1914
. .
CitedOsborne v Martin 1927
The parent had withdrawn his child from school every week for piano lessons. The court heard an appeal by the prosecutor against dismissal of a charge of failing to secure the child’s attendance at school.
Held: The parent had to cause the . .
CitedBath and North East Somerset District Council v Warman Admn 19-Nov-1998
A fifteen year old girl absented herself from school when she went to live with a boyfriend at an address which was not known to her mother. The justices acquitted the mother for failing to secure her attendance at school on the basis of ‘any . .
CitedR, Regina (on the Application of) v Leeds Magistrates Court and others Admn 28-Jun-2005
A 15-year-old girl did not go to school because she was bullied there and her mother kept her away.
Held: the mother had failed to meet her duties under the Act. . .
CitedHinchley v Rankin QBD 1961
A father had been rightly convicted when his son had been recorded as absent because he had not been at school when the register was closed, for ‘it must be regular attendance for the period prescribed by the person upon whom the duty to provide the . .
Not followedCrump v Gilmore 1969
Justices had found as facts, on a prosecution for non attendance of their child, that the parents had not known about relevant absences until after the event, and that there had been no neglect on their part. The justices acquitted the parents but . .
CitedLondon Borough of Bromley v C Admn 7-Mar-2006
The authority appealed an acquittal by the magistrates of the mother of three children of failing to secure their regular attendance. . Records showed that out of 114 possible attendances in each case, E had 72 attendances, G had 74 and B had 78. . .

Lists of cited by and citing cases may be incomplete.

Education, Crime

Updated: 09 November 2021; Ref: scu.581425

Regina v Bonner and Others: CACD 24 Feb 1970

The appellants challenged their convictions for theft, saying that as partners in a firm they could not be convicted of theft of partnership property.
Held: The appeals were allowed for the unsatisfactory and unsafe nature of the convictions on the particular evidence. However, the 1861 Act having not been repealed, and that: ‘the object of the Theft Act was to get rid of the subtleties and, indeed, in many cases the absurd anomalies of the pre-existing law. The view of this Court is that in relation to partnership property the provisions in the Theft Act have the following result: provided there is the basic ingredients of dishonesty, provided there be no question of there being a claim of right made in good faith, provided there be an intent permanently to deprive, one partner can commit theft of partnership property just as much as one person can commit the theft of the property of another to whom he is a complete stranger.’

Edmund Davis, Karminski LJJ, Jawton J
[1970] EWCA Crim 1, [1970] 1 WLR 838, [1970] 2 All ER 97, 54 Cr App Rep 257, 134 JP 429
Theft Act 1968 1, Larceny Act 1861
CitedMorgan v Marquis 2-Nov-1853
The defendants had possession of some flour for sale under instructions from Perrin. The jury found that the sale was to be for the account of Perrin and one Shute and not Perrin alone, and that Perrin and Shute were joint tenants. Perrin committed . .
CitedFarrer v Beswick 1836
Baron Parke said: ‘I have always understood, until the doubt was raised in Barton v. Williams, that one joint-tenant or tenant in common of a chattel could not be guilty of a conversion by a sale of that chattel, unless it were sold in such a manner . .
CitedRegina v Jesse Smith 1871
Chief Justice Bovill said, referring to the 1861 Act: ‘At the time that Act (24 and 25 Vict. c. 96) was passed theft by a partner of the goods of the firm did not fall within the criminal law, either common or statute. This defect was supplied by 31 . .

Lists of cited by and citing cases may be incomplete.


Leading Case

Updated: 09 November 2021; Ref: scu.249922

Fisher v Bell: QBD 10 Nov 1960


A shopkeeper displayed a flick-knife in his window for sale. A price was also displayed. He was charged with offering it for sale, an offence under the Act. The words ‘offer for sale’ were not defined in the Act, and therefore the magistrates construed them as under the general law of contract, in which case the shopkeeper had merely issued an invitation to treat.
Held: The display of the knife in the window was indeed only an invitation to treat, and the knife had not been offered for sale. In the Keating and Wiles cases the Acts in question allowed a conviction where an item was exposed for sale. That did not apply here. The appeal was dismissed.
Lord Justice Parker said: ‘It is perfectly clear that according to the ordinary law of contract the display of an article with a price on it in a shop window is merely an invitation to treat. It is in no sense an offer for sale the acceptance of which constitutes a contract.’

Parker LJ CJ, Ashworth Elwes JJ
[1961] 1 QB 394
DistinguishedWiles v Maddison 1943
It was proved that the defendant had the intention to commit an offence. Viscount Caldecote CJ said ‘A person might, for instance, be convicted of making an offer of an article at too high a price by putting it in his shop window to be sold at an . .
CitedMagor and St Mellons Rural District Council v Newport Corporaion HL 1951
The Court of Appeal had tried to fill in the gaps in a statute where parliament had intended an effect.
Held: Rights to compensation are well capable of falling within the definition of ‘property of a company’ in the relevant provisions of the . .
DistinguishedKeating v Horwood QBD 1926
A baker’s van was doing its rounds, delivering bread which had already been ordered but the van also contained bread which could be bought as required. The bread was underweight The Order prohibited the offering or exposing for sale of food . .

Lists of cited by and citing cases may be incomplete.

Crime, Consumer, Contract

Leading Case

Updated: 09 November 2021; Ref: scu.185104

Marwaha v UK Border Revenue Agency (Cash and Compensation Team): Admn 2 Nov 2017

Flower Arrangers’ poppy straws not controlled

The court was asked whether the definition of poppy straw in the 1971 Act applied to poppy head and poppy heads and stalks imported by the Appellant for use in flower arrangements.
Held: On the correct interpretation of the statutory definition of poppy straw the two consignments in issue did not comprise poppy straw because the relevant poppies had not been mown and so the relevant poppy heads (with and without stalks) were not parts of the poppy after mowing. Rather, they had been harvested or picked with care in a way that preserved those heads for use for ornamental or decorative purpose, including floristry.

Charles J
[2017] EWHC 2321 (Admin), [2017] WLR(D) 727
Bailii, WLRD
Misuse of Drugs Act 1971
England and Wales

Customs and Excise, Crime

Updated: 09 November 2021; Ref: scu.599411

Khodorkovskiy and Lebedev v Russia: ECHR 25 Jul 2013

ECHR Article 7-1
Nullum crimen sine lege
Interpretation of offence of tax evasion derived by reference to other areas of law: no violation
Article 6
Civil proceedings
Criminal proceedings
Article 6-1
Impartial tribunal
Independent tribunal
Alleged lack of impartiality of trial judge who had already taken procedural decisions adverse to defence and had sat in trial of co-accused: no violation
Article 6-3-b
Adequate facilities
Adequate time
Need for applicants to study large volume of evidence in difficult prison conditions, but supported by highly qualified legal team: no violation
Article 6-3-c
Defence through legal assistance
Systematic perusal by prison authorities and trial judge of communications between accused and their lawyers: violation
Article 6-3-d
Examination of witnesses
Refusal to allow defence to cross-examine expert witnesses called by the prosecution or to call their own expert evidence: violation
Article 8
Article 8-1
Respect for family life
Respect for private life
Imprisonment in penal colonies thousands of kilometres from prisoners’ homes: violation
Article 18
Restrictions for unauthorised purposes
Allegedly politically motivated criminal proceedings against applicants: violation
Article 34
Hinder the exercise of the right of petition
Disciplinary and other measures against the lawyers acting for applicants in case pending before European Court: failure to comply with Article 8
Facts – Before their arrest the applicants were senior managers and major shareholders of a large industrial group which included the Yukos oil company. They were among the richest men in Russia. Mr Khodorkovskiy, the first applicant, was also politically active: he allocated significant funds to support opposition parties and funded several development programmes and NGOs. In addition, Yukos pursued large business projects which went against the official petroleum policy.
In 2003 the applicants were arrested and detained on suspicion of the allegedly fraudulent privatisation of one of the companies in the group. Subsequently tax and enforcement proceedings were brought against Yukos oil company, which was put into liquidation. New charges were brought against the applicants relating to alleged tax evasion through the registration of trading companies, which in fact had no business activities, in a low-tax zone, and through allegedly false income tax returns. In 2005 the applicants were found guilty of most of the charges. They were sentenced to nine years’ imprisonment and ordered to pay the State the equivalent of over EUR 500,000,000 in respect of unpaid company taxes. Their prison sentences were reduced to eight years on appeal. Both applicants were sent to serve their sentences in remote colonies, thousands of kilometres from their Moscow homes.
In their applications to the European Court, the applicants complained of various breaches of the Convention, in particular of their right to a fair trial (Article 6 – 1) and of their right not to be tried of an offence that was not an offence when it was committed (Article 7).
Law – Article 6 – 1: Both applicants complained of several distinct breaches of this provision. The first group of their arguments concerned alleged bias on the part of the presiding judge. The second group to procedural unfairness, in particular: a lack of time and facilities to prepare the defence, an inability to enjoy effective legal assistance, and an inability to examine prosecution evidence or adduce evidence for the defence.
(a) Impartiality – The applicants claimed that procedural decisions taken by the judge during their trial were indicative of bias, that the judge had herself been under investigation during their trial and that she was biased because of her previous findings in the case of another top Yukos manager.
As to the first point, the Court had to have stronger evidence of personal bias than a series of procedural decisions unfavourable to the defence. There was nothing in the trial judge’s decisions to reveal any particular predisposition against the applicants. As to the second point, the allegation that the trial judge was herself under investigation was based on rumour, and could not found a claim of impartiality. As to the final point – the fact that the judge had already sat in a case concerning another senior Yukos manager – the Court had previously clarified that the mere fact that a judge had already tried a co-accused was not, in itself, sufficient to cast doubt on the judge’s impartiality. Criminal adjudication frequently involved judges presiding over various trials in which a number of co-accused stood charged and the work of criminal courts would be rendered impossible if, by that fact alone, a judge’s impartiality could be called into question. An examination was, however, needed to determine whether the earlier judgments contained findings that actually prejudged the question of the applicant’s guilt. The judge in the applicants’ case was a professional judge, a priori prepared to disengage herself from her previous experience in the other manager’s trial. The judgment in the manager’s case did not contain findings that prejudged the question of the applicants’ guilt in the subsequent proceedings and the judge was not bound by her previous findings, for example as regards the admissibility of evidence, either legally or otherwise.
Conclusion: no violation (unanimously).
(b) Fairness of the proceedings
(i) Article 6 – 1 in conjunction with Article 6 – 3 (b): Time and facilities for the preparation of the defence – The second applicant had had eight months and twenty days to study over 41,000 pages of his case-file, and the first applicant five months and eighteen days to study over 55,000 pages. The Court noted the complexity of the documents, the need to make notes, compare documents, and discuss the case-file with lawyers. It also took account of the breaks in the schedule of working with the case-file, and of the uncomfortable conditions in which the applicants had had to work (for example, they had been unable to make photocopies in prison or to keep copies of documents in their cells and there had been restrictions on their receiving copies of documents from their lawyers). However, the issue of the adequacy of time and facilities afforded to an accused had to be assessed in the light of the circumstances of each particular case. The applicants were not ordinary defendants: they had been assisted by a team of highly professional lawyers of great renown, all privately retained. Even if they were unable to study each and every document in the case file personally, that task could have been entrusted to their lawyers. Importantly, the applicants were not limited in the number and duration of their meetings with their lawyers. The lawyers were able to make photocopies; the applicants were allowed to take notes from the case-file and keep their notebooks with them. Indeed, the applicants, who both had university degrees, were senior executives of one of the largest oil companies in Russia and knew the business processes at the heart of the case arguably better than anybody else. Thus, although the defence had had to work in difficult conditions at the pre-trial stage, the time allocated to the defence for studying the case file was not such as to affect the essence of the right guaranteed by Article 6 — 1 and 3 (b).
The Court further examined the conditions in which the defence had had to work at the trial and during the appeal proceedings. In particular, at some point the judge had decided to intensify the course of the trial and hold hearings every day. However, it had not been impossible for the applicants to follow the proceedings and the defence had been able to ask for adjournments when necessary.
At the appeal stage the defence had had over three months to draft written pleadings and to prepare for oral argument. Although the defence had had to start preparing their appeal without having the entirety of the trial materials before them and although there had been doubts as to the accuracy of the trial record, the Court was not persuaded that any such inaccuracies had made the conviction unsafe. Furthermore, the defence was aware of the procedural decisions that had been taken during the trial and what materials had been added. They had audio recordings of the trial proceedings and could have relied on them in the preparation of their points of appeal. The difficulties experienced by the defence during the appeal proceedings had thus not affected the overall fairness of the trial.
Conclusion: no violation (unanimously).
(ii) Article 6 – 1 in conjunction with Article 6 – 3 (c): Lawyer-client confidentiality – The applicants had claimed that that their confidential contacts with their lawyers had been seriously hindered. The Court reiterated that any interference with privileged material and, a fortiori, the use of such material against the accused in the proceedings should be exceptional and justified by a pressing need and would always be subjected to the strictest scrutiny.
As to the applicants’ complaint that one of their lawyers had received summonses from the prosecution, the Court noted that the lawyer concerned had refused to testify and that his refusal had not led to any sanctions against him. Accordingly, in the particular circumstances of the present case, lawyer-client confidentiality had not been breached on account of that episode.
In contrast, by carrying out a search of that lawyer’s office and seizing his working files, the authorities had deliberately interfered with the secrecy of lawyer-client contacts. The Court saw no compelling reasons for that interference. The Government had not explained what sort of information the lawyer might have had, how important it was for the investigation, or whether it could have been obtained by other means. At the relevant time the lawyer was not under suspicion of any kind. Most significantly, the search of his office had not been accompanied by appropriate procedural safeguards, such as authorisation by a separate court warrant, as required by the law. The search and seizure were thus arbitrary.
Another point of concern was the prison administration’s practice of perusing all written documents exchanged between the applicants and their lawyers during the meetings in the remand prison. Such perusal had no firm basis in the domestic law, which did not specifically regulate such situations. Furthermore, notes, drafts, outlines, action plans and other like documents prepared by the lawyer for or during a meeting with his detained client were to all intents and purposes privileged material. Any exception from the general principle of confidentiality was only permissible if the authorities had reasonable cause to believe that professional privilege was being abused in that the contents of the document concerned might endanger prison security or the safety of others or was otherwise of a criminal nature. In the present case, however, the authorities had taken as their starting point the opposite presumption, namely that all written communications between a prisoner and his lawyer were suspect. Despite there being no ascertainable facts to show that either the applicants or their lawyers might abuse professional privilege, the measures complained of had lasted for over two years. In the circumstances the rule whereby defence working documents were subject to perusal and could be confiscated if not checked by the prison authorities beforehand was unjustified, as were the searches of the applicants’ lawyers.
Finally, as regards the conditions in which the applicants had been able to communicate with their lawyers in the courtroom the trial judge had requested the defence lawyers to show her all written documents they wished to exchange with the applicants in accordance with the prison authorities’ security arrangements. While checking drafts and notes prepared by the defence lawyers or the applicants the judge might have come across information or arguments which the defence would not wish to reveal and which could have affected her opinion about the factual and legal issues in the case. In the Court’s opinion, it would be contrary to the principle of adversarial proceedings if the judge’s decision was influenced by arguments and information which the parties did not present and did not discuss at an open trial. Furthermore, the oral consultations between the applicants and their lawyers could have been overheard by the prison escort officers. During the adjournments the lawyers had had to discuss the case with their clients in close vicinity of the prison guards. In sum, the secrecy of the applicants’ exchanges, both oral and written, with their lawyers had been seriously impaired during the hearings.
Conclusion: violation (unanimously).
(iii) Article 6 – 1 in conjunction with Article 6 – 3 (d):- Taking and examination of evidence – As regards the applicants’ complaints that evidence from two experts consulted by the prosecution had been admitted without the applicants being able to challenge it, the Court noted, firstly, that the fact that the prosecution had obtained an expert report without any involvement of the defence did not of itself raise any issue under the Convention, provided that the defence subsequently had an opportunity to examine and challenge both the report and the credibility of those who prepared it, through direct questioning before the trial court.
In response to the Government’s submission that the defence had not shown why it had been necessary to question the expert witnesses, the Court stated that, contrary to the situation with defence witnesses, an accused was not required to demonstrate the importance of a prosecution witness. If the prosecution decided to rely on a particular person’s testimony as being a relevant source of information and if the testimony was used by the trial court to support a guilty verdict, the presumption arose that the personal appearance and questioning of the person concerned were necessary, unless the testimony was manifestly irrelevant or redundant. The two experts had clearly been key witnesses since their conclusions went to the heart of some of the charges against the applicants. The defence had taken no part in the preparation of the experts’ report and had not been able to put questions to them at an earlier stage. In addition, the defence had explained to the district court why they needed to question the experts and there were no good reasons for preventing them from coming to the court. Even if there were no major inconsistencies in the report, questioning experts could reveal possible conflicts of interest, insufficiency of the materials at their disposal or flaws in the methods of examination.
The applicants had also complained of the trial court’s refusal to admit expert evidence (both written and oral) proposed by the defence for examination at the trial. The Court noted that the trial court had refused to admit certain expert evidence which it deemed it irrelevant or useless. In that connection, the Court reiterated that the requirement of a fair trial did not impose an obligation on trial courts to order an expert opinion or any other investigative measure merely because a party had sought it and, having examined the nature of the reports in question, the Court was prepared to accept that the primary reason for not admitting certain of them was their lack of relevance or usefulness which matters were within the trial court’s discretion to decide. However, two audit reports (by Ernst and Young and Price Waterhouse Coopers) were in fact rejected for reasons related not to their content but to their form and origins. Unlike the other expert evidence the defence had sought to adduce, these reports were non-legal and concerned essentially the same matters as the reports produced by the prosecution and so were relevant to the accusations against the applicants. By excluding that evidence, the trial court had put the defence in a disadvantageous position as the prosecution had been entitled to select experts, formulate questions and produce expert reports, while the defence had had no such right. Furthermore, in order effectively to challenge a report by an expert the defence had to have the same opportunity to introduce their own expert evidence. The mere right of the defence to ask the court to commission another expert examination did not suffice. In practice, however, the only option that had been available to the applicants under Russian law had been to obtain oral questioning of ‘specialists’ at the trial, but ‘specialists’ had a different procedural status to ‘experts’, as they had no access to primary materials in the case and the trial court refused to consider their written opinions. In the circumstances, the decision to exclude the two audit reports had created an imbalance between the defence and the prosecution in the area of collecting and adducing ‘expert evidence’, thus breaching the equality of arms between the parties.
Conclusion: violation (unanimously).
Article 7
(a) Alleged procedural obstacles to prosecution – The applicants had claimed that by virtue of a Constitutional Court ruling of 27 May 2003 they could not be held criminally liable for tax evasion before their tax liability had been established in separate proceedings. The Court was not persuaded that the applicants’ understanding of that ruling was correct. It noted, however, that in any event the alleged ‘procedural obstacles’ did not mean that the acts imputed to the applicants were not defined as ‘criminal offences’ when they were committed. There had therefore been no violation of Article 7 on that account.
(b) Novel interpretation of the concept of ‘tax evasion’ – The applicants had argued that they had suffered from a completely novel and unpredictable interpretation of the provisions (Articles 198 and 199 of the Criminal Code) under which they were convicted. The Court observed that while those provisions defined tax evasion in very general terms, by itself such a broad definition did not raise any issue under Article 7. Forms of economic activity were in constant development, and so were methods of tax evasion. In order to define whether particular behaviour amounted to tax evasion in the criminal-law sense the domestic courts could invoke legal concepts from other areas of law. The law in this area could be sufficiently flexible to adapt to new situations, provided it did not become unpredictable. Thus, although in the criminal-law sphere there was no case-law directly applicable to the transfer-pricing arrangements and allegedly sham transactions at the heart of the applicants’ case, the concept of sham transaction was known to Russian law and the courts had the power to apply the ‘substance-over-form’ rule and invalidate a transaction as sham under the Civil and Tax Codes. The Court reiterated that in this area it was not called upon to reassess the domestic courts’ findings, provided they were based on a reasonable assessment of the evidence. In the present case, despite certain flaws, the domestic proceedings could not be characterised as a flagrant denial of justice.
The Court next turned to the question whether the substantive findings of the domestic courts were arbitrary or manifestly unreasonable.
(i) Charges under Article 199 of the Criminal Code (trading companies’ operation in the low-tax zone and the technique of ‘transfer pricing’) – While acknowledging that legitimate methods of tax minimisation could exist, the Court noted that the scheme deployed by Yukos was not fully transparent and that some elements of the scheme that might have been crucial for determining the companies’ eligibility for tax cuts had been concealed from the authorities. For instance, the applicants had never informed the tax authorities of their true relation to the trading companies. The benefits of the trading companies had been returned to Yukos indirectly. All business activities which had generated profit were in fact carried out in Moscow, not in a low-tax zone. The trading companies, which existed only on paper, had no real assets or personnel. Tax minimisation was the sole reason for the creation of the trading companies in the low-tax zone. Such behaviour could not be compared to that of a bona fide taxpayer making a genuine mistake. Finally, it was difficult for the Court to imagine that the applicants, as senior executives and co-owners of Yukos, had not been aware of the scheme or that the trading companies’ fiscal reports did not reflect the true nature of their operations. Thus, the applicants’ acts could be reasonably interpreted as submitting false information to the tax authorities, thus constituting the actus reus of the offence of tax evasion.
(ii) Charges under Article 198 of the Criminal Code (personal income-tax evasion) – In so far as the personal income tax evasion was concerned, the applicants had argued that they had given consulting services to foreign firms and that the tax cuts they had received as ‘individual entrepreneurs’ were legitimate. However, the domestic courts had concluded that such service agreements were in fact de facto payments for the applicants’ work in Yukos and its affiliated structures that would normally have been taxable under the general taxation regime and that the applicants had knowingly misinformed the tax authorities about the true nature of their activities. Those conclusions were not unreasonable or arbitrary.
(c) Application of allegedly dormant criminal law – Lastly, the Court did not accept the applicants’ argument that the authorities’ failure to prosecute and/or convict other businessmen who had been using similar tax-minimisation techniques had made such techniques legitimate and excluded criminal liability. While in certain circumstances a long-lasting tolerance of certain conduct, otherwise punishable under the criminal law, could grow into de facto decriminalisation of such conduct, this was not the case here, primarily because the reasons for such tolerance were unclear. It was possible that the authorities had simply not had sufficient information or resources to prosecute the applicants and/or other businessmen for using such schemes. It required a massive criminal investigation to prove that documents submitted to the tax authorities did not reflect the true nature of business operations. Finally, there was no evidence that tax minimisation schemes used by other businessmen had been organised in exactly the same way as that employed by the applicants. The authorities’ attitude could not therefore be said to have amounted to a conscious tolerance of such practices.
In sum, Article 7 of the Convention was not incompatible with judicial law-making and did not outlaw the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development was consistent with the essence of the offence and could reasonably be foreseen. While the applicants may have fallen victim to a novel interpretation of the concept of tax evasion, it was based on a reasonable interpretation of the domestic law and consistent with the essence of the offence.
Conclusion: no violation (unanimously).
Article 8: The applicants had complained that their transfer to penal colonies situated thousands of kilometres from their homes had made it impossible for them to see their families. The Court accepted that the situation complained of constituted interference with the applicants’ private and family life and was prepared to accept that the interference was lawful and pursued the legitimate aims of preventing disorder and crime and of securing the rights and freedoms of others.
As to whether it was necessary in a democratic society, the Curt noted, firstly, that it was very likely that the rule set out in the Russian Code of Execution of Sentences, which convicts in areas where prisons were overpopulated to be sent to the next closest region (but not several thousand kilometres away), had not been followed in the applicants’ case. It was hardly conceivable that there were no free places for the applicants in any of the many colonies situated closer to Moscow. The Court stressed that the distribution of the prison population must not remain entirely at the discretion of the administrative bodies and that the interests of convicts in maintaining at least some family and social ties had to somehow be taken into account. In the absence of a clear and foreseeable method of distribution of convicts amongst penal colonies, the system had failed to provide a measure of legal protection against arbitrary interference by public authorities and had led to results that were incompatible with respect for the applicants’ private and family lives.
Conclusion: violation (unanimously).
Article 1 of Protocol No. 1: The first applicant had complained that, after convicting him of corporate-tax evasion, the trial court had made an award of damages which overlapped with the claims for back payment of taxes that had been brought against Yukos. The Court found, firstly, that the first applicant’s obligation to pay certain outstanding taxes could be considered an interference with his possessions falling within the scope of Article 1 of Protocol No. 1.
However, it was unnecessary for the Court to examine separately the first applicant’s claim that the State had been awarded the same amount of outstanding corporate taxes twice, as in any event, the interference did not have a lawful basis. The Court accepted that where a limited-liability company was used merely as a facade for fraudulent actions by its owners or managers, piercing the corporate veil may be an appropriate solution for defending the rights of its creditors, including the State. However, there had to be clear rules allowing the State to do this if the interference was not to be arbitrary. Neither the Russian Tax Code at the material time nor the Civil Code permitted the recovery of a company’s tax debts from its managers. Furthermore, the domestic courts had repeatedly interpreted the law as not allowing liability for unpaid company taxes to be shifted to company executives. Finally, the trial court’s findings regarding the civil claim were extremely short and contained no reference to applicable provisions of the domestic law or any comprehensible calculation of damages, as if it was an insignificant matter. In sum, neither the primary legislation then in force nor the case-law allowed for the imposition of civil liability for unpaid company taxes on the company’s executives. The award of damages in favour of the State had thus been arbitrary.
Conclusion: violation (unanimously).
Article 18 (alleged political motivation for prosecution): The Court reiterated that the whole structure of the Convention rested on the general assumption that public authorities in the member States acted in good faith. Though rebuttable in theory, that assumption was difficult to overcome in practice: an applicant alleging that his rights and freedoms were limited for an improper reason had to show convincingly that the real aim of the authorities was not the same as that proclaimed. Thus, the Court had to apply a very exacting standard of proof to such allegations.
That standard had not been met in the applicants’ case. While the circumstances surrounding it could be interpreted as supporting the applicants’ claim of improper motives, there was no direct proof of such motives. The Court was prepared to admit that some political groups or government officials had had their own reasons for pushing for the applicants’ prosecution. However, that was insufficient to conclude that the applicants would not have been convicted otherwise. In the final reckoning, none of the accusations against them even remotely concerned their political activities. Elements of ‘improper motivation’ which may have existed in the instant case did not make the applicants’ prosecution illegitimate from beginning to end: the fact remained that the accusations against the applicants of common criminal offences, such as tax evasion and fraud, were serious, that the case against them had a ‘healthy core’, and that even if there was a mixed intent behind their prosecution, this did not grant them immunity from answering the accusations.
Conclusion: no violation (unanimously).
Article 34: The first applicant had further complained that, in order to prevent him from complaining to the European Court, the authorities had harassed his lawyers.
In the Court’s opinion, there was a significant difference between the first applicant’s allegations under Article 18 and those under Article 34. In so far as his prosecution and trial were concerned, the aims of the authorities for bringing the first applicant to trial and convicting him were evident and did not require further explanation. By contrast, the aim of the disciplinary and other measures directed against his lawyers was far from evident. The Court had specifically invited the Government to explain the reasons for the disbarment proceedings, extraordinary tax audit and denial of visas to the first applicant’s foreign lawyers, but the Government had remained silent on those points. In such circumstances it was natural to assume that the measures directed against the first applicant’s lawyers were linked to his case before the Court. In sum, the measures complained of had been directed primarily, even if not exclusively, at intimidating the lawyers working on the first applicant’s case before the Court. Although it was difficult to measure the effect of those measures on his ability to prepare and argue his case, it was not negligible.
Conclusion: violation (unanimously).
The Court also found, unanimously, a violation of Article 3 of the Convention on account of the fact that the second applicant appeared at his trial in a metal cage and no violation of that provision in respect of the conditions of his detention in the remand prison; a violation of Article 5 – 3 of the Convention in respect of the length of the second applicant’s pre-trial detention and a violation of Article 5 – 4 on account of delays in the review of his detention.
Article 41: EUR 10,000 to the first applicant in respect of non-pecuniary damage. The second applicant’s pecuniary claims were rejected in full.
(See also Khodorkovskiy v. Russia, no. 5829/04, 31 May 2011, Information Note 141; and OAO Neftyanaya Kompaniya Yukos v. Russia, no. 14902/04, 20 September 2011, Information Note 144)

11082/06 13772/05 – Chamber Judgment, [2013] ECHR 747, 11082/06 13772/05 – Legal Summary, [2013] ECHR 774
Bailii, Bailii
European Convention on Human Rights
Human Rights

Human Rights, Legal Professions, Crime, Prisons

Leading Case

Updated: 09 November 2021; Ref: scu.515133

Regina v Finlay: CACD 8 Dec 2003

The defendant appealed from his conviction for manslaughter. He had been found to have prepared heroin by loading it into a syringe and passing it to a friend.
Held: Even if ‘the appellant had not himself wielded the syringe, he would have committed an offence under s.23 if he had caused the administration of the heroin even though he did not himself physically administer it.’ ‘Effectively, the only matter in issue was whether it was open to the judge to leave to the jury the possibility that there was a version of events that caused Mr Finlay to be guilty of an offence under Section 23 of the 1861 Act even though he had not himself held the syringe.’ and ‘The test is one of causation. In this case, could it be said that the act of the deceased in taking up the syringe and using it on herself, which are to be assumed to be the facts, prevented Mr Finlay’s previous acts being causative of the injection. ‘ Defence counsel sought to ‘make the existence of what used to be called a novus actus interveniens, and can now more simply be regarded as an act of another person, as something that as a matter of law [emphasis added] breaks the chain of causation. It was that view or assumption that was rejected by the House of Lords in the Empress Car case. Intervening acts are only a factor to be taken into account by the jury in looking at all the circumstances.’

Buxton LJ
[2003] EWCA Crim 3868
Offences Against the Persons Act 1861 823
England and Wales
AppliedEmpress Car Company (Abertillery) Ltd v National Rivers Authority HL 22-Jan-1998
A diesel tank was in a yard which drained into a river. It was surrounded by a bund to contain spillage, but that protection was over ridden by an extension pipe from the tank to a drum outside the bund. Someone opened a tap on that pipe so that . .

Cited by:
CitedKennedy v Regina CACD 17-Mar-2005
The court considered when it was appropriate to find someone guilty of manslaughter where that person has been involved in the supply of a Class A controlled drug, which is then self administered by the person to whom it is supplied, and the . .
CitedRegina v Kennedy HL 17-Oct-2007
The defendant had been convicted of manslaughter. He had supplied a class A drug to a friend who then died taking it. The House was asked ‘When is it appropriate to find someone guilty of manslaughter where that person has been involved in the . .

Lists of cited by and citing cases may be incomplete.


Leading Case

Updated: 09 November 2021; Ref: scu.225877

Kosar v Bank of Scotland Plc (T/A Halifax): Admn 18 Jan 2011

The claimant appealed against an order which had rejected his claim against the defendant under the 1997 Act on the basis that a company could not commit the offence.
Held: The appeal was allowed. Under the 1978 Act, a ‘person’ included a body corporate unless the contrary was shown. The restriction created by section 7(5) applied only to the victim.

Silber J
[2011] EWHC 1050 (Admin), [2011] BCC 500
Protection from Harassment Act 1997 7(5), Interpretation Act 1978
England and Wales

Crime, Company

Updated: 02 November 2021; Ref: scu.434859

Regina v Morley; Regina v Chaytor; Regina v Devine; Regina v Lord Hanningfield: CC 11 Jun 2010

(Southwark Crown Court) The defendants faced charges of false accounting in connection with expense claims as members of parliament, three of the House of Commons and one of the Lords. Each claimed that the matter was covered by Parliamentary Privilege and that a civil court had no jurisdiction to try them.
Held: The claims to privilege failed. Saunders J said: ‘Although Article 9 of the Bill of Rights 1689 is the best-known example of parliamentary privilege and has enshrined in Statute the privilege of freedom of speech in Parliament, it is part only of a much broader privilege which is found in the common law. Article 9 provides that ‘the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament’.’
However: ‘in the context of criminal charges Parliamentary privilege should be narrowly construed. The principle that all men are equal before the law is an important one and should be observed unless there is good reason why it should not apply. To do otherwise would risk bringing both the Courts and Parliament into disrepute and diminish confidence in the criminal justice system. Parliament does not have an effective procedure for investigating and deciding whether a member is guilty or not guilty of criminal charge’
It was significant that ‘neither House has sought to assert that these proceedings come within the jurisdiction of Parliament. This is of particular significance as the privilege, if it exists, belongs to Parliament and not the individual members.’ and ‘Wherever a line is drawn there may be anomalies. The fact that it is the submission of the claim form that sets the machinery of Parliament in motion does not make it part of that machinery just as putting a coin in a slot machine does not make the coin part of the mechanism of the slot machine just because it initiates the process.’
He continued: ‘The claiming of expenses is an individual activity for the benefit of the individual and any benefit to Parliament as a whole is not a direct one. Further it is not part of a Member’s duty to claim his expenses or allowances. He could not be criticised for failing to carry out his duties as an MP if he did not claim his allowances and his expenses. It would not be an interference with the workings of Parliament or obstruct the carrying out of their business. None of the justifications for the existence of privilege would seem to apply to the submission of the form. In my judgment it does not come within the scope of the ‘exclusive jurisdiction of Parliament’ on any sensible construction of that privilege.’

Saunders J
[2010] EW Misc 9 (EWCC)
Bailii, Judiciary
Bill of Rights 1689 9
England and Wales
CitedBradlaugh v Gossett 9-Feb-1884
Bradlaugh, though duly elected Member for a Borough, was refused by the Speaker to administer oath and was excluded from the House by the serjeant at arms. B challenged the action.
Held: The matter related to the internal management of the . .
CitedPrebble v Television New Zealand Ltd PC 27-Jun-1994
(New Zealand) The plaintiff, an MP, pursued a defamation case. The defendant wished to argue for the truth of what was said, and sought to base his argument on things said in Parliament. The plaintiff responded that this would be a breach of . .
CitedOffice of Government Commerce v Information Commissioner and Another Admn 11-Apr-2008
The Office appealed against decisions ordering it to release information about the gateway reviews for the proposed identity card system, claiming a qualified exemption from disclosure under the 2000 Act.
Held: The decision was set aside for . .
CitedMcGuinness, Re Application for Judicial Review QBNI 3-Oct-1997
The claimant was an MP from Northern Ireland. As an MP he had been required to swear allegiance to the Crown, but he had refused to do so for his belief in an independent Ireland. He challenged the decision of the Speaker of the House to refuse him . .
CitedPepper (Inspector of Taxes) v Hart HL 26-Nov-1992
Reference to Parliamentary Papers behind Statute
The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .
CitedAttorney-General of Ceylon v de Livera PC 1963
A member of the House of Representatives was offered 5,000 rupees for writing to the Minister of Lands and Development withdrawing an application previously made to the Minister to acquire an estate. The offeror was found guilty of offering a . .
CitedJennings v Buchanan PC 14-Jul-2004
(New Zealand) (Attorney General of New Zealand intervening) The defendant MP had made a statement in Parliament which attracted parliamentary privilege. In a subsequent newspaper interview, he said ‘he did not resile from his claim’. He defended the . .
CitedRegina v Greenaway CC 25-Jun-1992
(Central Criminal Court) The defendant Member of Parliament had faced charges of accepting bribes in return for advancing the interests of a commercial company.
Held: The charges were dismissed on the request of the prosecution after a . .

Cited by:
Appeal fromChaytor and Others, Regina v CACD 30-Jul-2010
The defendants had been members of the Houses of Commons and of Lords. They faced charges of dishonesty in respect of their expenses claims. They now appealed a finding that they were not subject to the exclusive jurisdiction of Parliament under . .
At Crown CourtChaytor and Others, Regina v SC 1-Dec-2010
The defendants faced trial on charges of false accounting in connection in different ways with their expenses claims whilst serving as members of the House of Commons. They appealed against rejection of their assertion that the court had no . .
CitedKimathi and Others v Foreign and Commonwealth Office QBD 20-Dec-2017
Parliamentary privilege The claimants sought to have admitted as evidence extracts from Hansard in support of their claim for damages arising from historic claims.
Held: The court set out the authorities and made orders as to each element. . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Crime

Leading Case

Updated: 02 November 2021; Ref: scu.417821

Regina v Bow: CACD 24 Nov 1976

The defendant appealed against his conviction for taking a motor vehicle without authority.
Held: Bridge LJ said: ‘where as here, a conveyance is taken and moved in a way which necessarily involves its use as a conveyance, the taker cannot be heard to say that the taking was not for that use. If he has in fact taken the conveyance and used it as such, his motive in so doing is, Mr. Mathieson submits, quite immaterial. It follows, in our judgment, that the trial judge was right, not only to reject the submission of no case, but also to direct the jury as he did, that on the undisputed facts the appellant had taken the Land Rover for his own use. Accordingly the appeal will be dismissed.’

Lord Bridge MR, Wien, Kenneth Jones JJ
[1976] EWCA Crim 1, (1977) 64 Cr App R 54, [1977] RTR 6
Theft Act 1968 12
England and Wales
CitedRegina v Bogacki CACD 1973
The three defendants had been charged with attempting to take a motor bus without authority. They had gone to a bus garage late at night and attempted to start the engine of a bus without success. The trial judge directed the jury as follows, . .

Lists of cited by and citing cases may be incomplete.


Leading Case

Updated: 02 November 2021; Ref: scu.249937

Rex v Clarke: 1949

The defendant was accused of the rape of his wife and assault. At the time they were separated by virtue of a court order recently obtained by her. He replied that the offence alleged was not known to law because of the marriage.
Held: The separation order amounted to a withdrawal by the wife of the consent implied by the marriage. He could be guilty of the rape alleged.

[1949] 2 All ER 448, 33 Cr App Rep 216
England and Wales
Cited by:
FollowedRegina v Miller Assz 1954
A husband was charged with rape of his wife after she had left him and petitioned for divorce. He was also charged with an assault.
Held: There was no evidence which entitled the court to say that the wife’s implied consent to marital . .
CitedRegina v R HL 23-Oct-1991
H has no right to sexual intercourse with W – rape
The defendant appealed against his conviction for having raped his wife, saying that intercourse with his wife was necessarily lawful, and therefore outside the statutory definition of rape. Due to the matrimonial difficulties, the wife had left . .

Lists of cited by and citing cases may be incomplete.


Leading Case

Updated: 02 November 2021; Ref: scu.194940

Regina v Kearns: CACD 22 Mar 2002

The defendant had failed to account for the disappearance of a substantial part of his estate to the official receiver following his bankruptcy. He appealed his conviction for failing to provide an account, saying that the requirement to provide information infringed his right of silence and to a fair trial.
Held: The provisions were not an infringement of the defendant’s rights. The offence was one of strict liability, but the onus of proof remained upon the prosecution. At the time when the demand for information was made, there was no charge against the defendant, and it was not an attempt to obtain evidence to support a criminal charge by ‘coercion or oppression in defiance of the will of the accused’ within Saunders, and evidence received could not be used in criminal proceedings. In any event the right to silence is not absolute, and the provision was proportionate and necessary.
Aikens J said: ‘There is a distinction between the compulsory production of documents or other material which had an existence independent of the will of the suspect or accused person and statements that he has had to make under compulsion. In the former case there was no infringement of the right to silence and the right not to incriminate oneself. In the latter case there could be, depending on the circumstances.’

Lord Justice Kennedy, Mr Justice Aikensand Mr Justice Pitchford
Times 04-Apr-2002, Gazette 10-May-2002, [2002] EWCA Crim 748, [2002] 1 WLR 2815, [2003] 1 CAR 7, [2002] BPIR 1213, [2003] 1 Cr App R 7, [2002] Crim LR 653
Insolvency Act 1986 354(3)(a), European Convention on Human Rights 6
England and Wales
CitedSaunders v The United Kingdom ECHR 17-Dec-1996
(Grand Chamber) The subsequent use against a defendant in a prosecution, of evidence which had been obtained under compulsion in company insolvency procedures was a convention breach of Art 6. Although not specifically mentioned in Article 6 of the . .
CitedAttorney-General’s Reference (No 7 of 2000) CACD 29-Mar-2001
The defendant had been convicted of offences under the Insolvency Act. Evidence of his gambling was found in cheque stubs, bank statements, returned cheques and a betting file containing loose gambling statements by way of computer print outs . .

Cited by:
CitedC Plc and W v P and Secretary of State for the Home Office and the Attorney General ChD 26-May-2006
The claimant sought damages from the first defendant for breach of copyright. An ex parte search order had been executed, with the defendant asserting his privilege against self-incrimination. As computer disks were examined, potentially unlawful . .
CitedC Plc v P and Attorney General Intervening CA 22-May-2007
The respondent had been subject to a civil search, which revealed the existence of obscene images of children on his computer. He appealed against refusal of an order that the evidence should not be passed to the police as evidence. He said that the . .
ApprovedHundal and Dhaliwal, Regina v CACD 3-Feb-2004
The defendants appealed against conviction and sentence for membership of an organisation proscribed under the 2000 Act. The defendants said that at the time they joined the organisation was not proscribed, and had left before it became proscribed. . .
CitedRegina v S and A CACD 9-Oct-2008
The defendant appealed against his conviction under the 2000 Act for failing to disclose the key used to encrypt a computer file. He was subject to a control order as a suspected terrorist. As the police raided his house, they found the key had been . .
CitedGreater Manchester Police v Andrews Admn 23-May-2011
The CC appealed by case stated against a refusal of an order under the 2000 Act for the disclosure by the defendant of a cryptography key. The defendant had a history of sexual offences against children and had failed to keep to the terms of a . .

Lists of cited by and citing cases may be incomplete.

Insolvency, Human Rights, Crime

Leading Case

Updated: 02 November 2021; Ref: scu.169830

Adcock (Edward) v Archibald: HCJ 12 Mar 1925

The charge was that the accused had tampered with the ‘pin’ on a fellow-miner’s hutch so as fraudulently to represent that the coal contained therein had been gotten by the accused, and thereby induced his employers to pay him (instead of his fellow-miner) for getting the coal.

Lord Justice-General (Clyde)
[1925] ScotHC HCJ – 1, 1925 SLT 258, 1925 JC 58


Leading Case

Updated: 02 November 2021; Ref: scu.279159

Regina v Brown (Anthony); Regina v Lucas; etc: HL 11 Mar 1993

The appellants had been convicted of assault, after having engaged in consensual acts of sado-masochism in which they inflicted varying degreees of physical self harm. They had pleaded guilty after a ruling that the prosecution had not needed to prove the absence of consent. They said it was their human right to give consent to such acts, as an expression of their sado-masochistic libido.
Held: It was not in the public interest that injuries should be allowed to be inflicted on others without good reason. Sado-masochism was not a good reason. Articles 7 and 8 of the Convention have no application in these circumstances.
Lord Mustill (dissenting) said: ‘As a matter of policy the courts have decided that the criminal law does not concern itself with these activities, provided that they do not go too far. It also seems plain that as the general social appreciation of the proper role of the state in regulating the lives of individuals changes with the passage of time, so we shall expect to find that the assumptions of the criminal justice system about what types of conduct are properly excluded from its scope, and what is meant by ‘going too far’ will not remain constant.’
Lord Jauncey said: ‘I prefer the reasoning of Cave J. in Coney and of the Court of Appeal in the later three English cases which I consider to have been correctly decided. In my view, the line properly falls to be drawn between assault at common law and the offences of assault occasioning actual bodily harm created by s.47 of the Offences Against the Person Act 1861, with the result that consent of the victim is no answer to anyone charged with the latter offence or with a contravention of s. 20 unless the circumstances fall within one of the well known exceptions such as organised sporting contest and games, parental chastisement or reasonable surgery.’

Lord Templeman, Lord Jauncey of Tullichettle, Lord Lowry, Lord Mustill and Lord Slynn of Hadley
Independent 12-Mar-1993, [1994] 1 AC 212, [1993] UKHL 19, [1992] UKHL 7, [1993] 2 WLR 556, [1993] 2 All ER 75
lip, Bailii
Offences Against the Person Act 1861 20 47, European Convention on Human Rights 7 8
England and Wales
CitedWilson v Pringle CA 26-Mar-1986
Two boys played in a school yard. D said he had pulled a bag from the other’s shoulder as an ordinary act of horseplay. The plaintiff said it was a battery.
Held: The defendant’s appeal against summary judgment was allowed. A claim of trespass . .
CitedRex v Taverner 1616
The court discussed the offence of killing in a duel. It expounded the heinousness of the offence with copious reference to the ancients and to Holy Scripture. Killing in cold blood was the sin of Cain . .
CitedAttorney-General’s Reference (No 6 of 1980) CACD 1981
The court considered a reference on a point of law as to whether consent could be a defence to a charge of assault arising out of a fight in a public place to which the other party consented.
Held: Lord Lane CJ said: ‘It is not in the public . .
CitedCollins v Wilcock QBD 1984
The defendant appealed against her conviction for assaulting a police constable in the execution of his duty. He had sought to caution her with regard to activity as a prostitute. The 1959 Act gave no power to detain, but he took hold of her. She . .
CitedDirector of Public Prosecutions v Smith HL 1960
The defendant tried to avoid arrest and killed a policeman by driving off with the policeman clinging to the car.
Held: (1) The defendant committed murder because death or grievous bodily harm was foreseen by him as a ‘likely’ result of his . .
CitedFairclough v Whipp CCA 1951
The defendant was charged with indecent assault on a girl aged nine. At the man’s invitation the girl had committed an indecent act on the man.
Held: An invitation to another person to touch the invitor could not amount to an assault on the . .
CitedJ J C (A Minor) v Eisenhower QBD 1983
The defendant shot an airgun at a group of people. He hit someone just below the eye, causing bruising, but not breaking the skin. One blood vessel at least below the skin burst.
Held: His conviction was set aside. A conviction under section . .
CitedRegina v Boyea CACD 28-Jan-1992
The defendant was accused of having, with or without the consent of his victim, caused her physical damage by inserting his hand in her vagina and twisting it.
Held: ‘the extent of the violence inflicted . . went far beyond the risk of minor . .
CitedRegina v Bradshaw 1878
The court considered the lawfulness of the sport of boxing: ‘no rules or practice of any game whatever can make lawful that which is unlawful by the law of the land.’ . .
CitedRegina v Bruce 1847
. .
CitedRegina v Ciccarelli CACD 1989
. .
CitedRegina v Clarence CCCR 20-Nov-1888
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 his convictions for assault and causing grievous bodily harm.
Held: ‘The question in this . .
CitedRegina v Coney QBD 18-Mar-1882
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 . .
CitedRegina v Griffin CCA 1869
The court considered when a parent may use the defence of lawful correction of a child as a defence.
Held: Since an infant of 2 and a half years old could not appreciate correction, the father could not justify an assault as correction, and . .
CitedRegina v Hopley 11-Jan-1860
(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 . .
CitedRegina v Jones (Terence) CACD 1986
The trial judge declined to direct the jury that the defendants were entitled to be acquitted if the jury decided that they were indulging in ‘rough’ and undisciplined sport or play, not intending to cause harm, and genuinely believing that the . .
CitedRegina v McCoy 1953
(Rhodesia) . .
CitedRegina v Moore 1898
. .
CitedRegina v Mowatt CACD 20-Jun-1967
The defendant was attacked by his victim, and he hit his victim in the face. He was charged with wounding with intent to do grievous bodily harm with an alternative of unlawful wounding also open to the jury. The judge gave no direction on the . .
CitedRegina v Orton 1878
What would otherwise be classified as a fierce assault in criminal law may not be so in the sporting context of a boxing match. . .
CitedRegina v Savage; Director of Public Prosecutions v Parmenter HL 7-Nov-1991
The first defendant had been convicted of wounding. She had intended to throw beer over her victim, but her glass slipped from her hand, and cut the victim. The second defendant threw his three year old child in the air and caught him, not realising . .
CitedRegina v Wollaston 1872
On a trial of sexual assault, the Court considered the difference between consent and submission in the victim.
Sodomy and indecent assault belong to the same family or class of offences, . .
CitedRegina v Young 1866
. .
CitedRex v Donovan CCA 1934
The defendant was convicted of indecent assault and common assault after caning a 17 year old female complainant for the purposes of sexual gratification. The complainant suffered actual bodily harm, though the defendant was not charged with an . .
Appeal fromRegina v Brown etc CACD 15-Apr-1992
The defendants appealed against their convictions for offences under the 1861 Act of assaults inflicting injury. They said that as sado-masochists, they had mutually consented to the assaults and that no offences had been commited, but pleaded gulty . .
CitedRegina v Aitken CACD 1993
The court considered the criminality of high-spirited, ‘horseplay’ which had resulted in serious injury. . .

Cited by:
CitedRegina v Dica CACD 5-May-2004
Reckless HIV transmission – Grievous Bodily Harm
The defendant appealed against his conviction for inflicting grievous bodily harm. He had HIV/Aids, and was found to have transmitted the disease by intercourse when the victims were not informed of his condition. It was not suggested that any rape . .
Appeal fromLaskey, Jaggard and Brown v The United Kingdom ECHR 19-Feb-1997
A prosecution for sado-masochist acts was a necessary invasion of privacy to protect health. The Court found no violation where applicants were imprisoned as a result of sado-masochistic activities captured on video tape when police obtained . .
CitedRegina v Barnes CACD 21-Dec-2004
The defendant appealed against a conviction for inflicting grievous bodily harm, after causing a serious leg injury in a football match when tackling another player.
Held: There was surprisingly little authority on when it was appropriate to . .
CitedKonzani, Regina v CACD 17-Mar-2005
The defendant appealed conviction for inflicting grievous bodily harm on three women, by having unprotected sexual intercourse knowing that he was HIV positive, but without telling the women. Each contracted HIV. The allegation was that he had . .
CitedMeachen, Regina v CACD 20-Oct-2006
The appellant appealed his conviction for anal rape. He said the incident had been consensual. He had administered a date rape drug. He said again that this had been consensual. The prosecution alleged that the injuries left were inconsistent with . .
CitedMosley v News Group Newspapers Ltd QBD 24-Jul-2008
The defendant published a film showing the claimant involved in sex acts with prostitutes. It characterised them as ‘Nazi’ style. He was the son of a fascist leader, and a chairman of an international sporting body. He denied any nazi element, and . .
CitedNicklinson v Ministry of Justice and Others QBD 12-Mar-2012
The claimant suffered locked-in syndrome and sought relief in a form which would allow others to assist him in committing suicide. The court considered whether the case should be allowed to proceed rather than to be struck out as hopeless.
CitedGnango, Regina v SC 14-Dec-2011
The prosecutor appealed against a successful appeal by the defendant against his conviction for murder. He and an opponent had engaged in a street battle using guns. His opponent had shot an innocent passer by. The court was now asked as to whether . .
CitedRegina v Emmett CACD 18-Jun-1999
The defendant appealed against conviction after being involved in sexual activity which he said was not intended to cause harm, and were said to be consensual, but clearly did risk harm. On the first occasion he tied a plastic bag over the head of . .
CitedBM, Regina v CACD 22-Mar-2018
The defendant appealed from a preliminary ruling that his body modification services were not in law capable of being consented to and therefore amounted to an assault.
Held: The appeal failed: ‘we can see no good reason why body modification . .

Lists of cited by and citing cases may be incomplete.

Crime, Human Rights

Leading Case

Updated: 02 November 2021; Ref: scu.86245

Regina v Cogan and Another: CACD 9 Jun 1975

The defendants appealed againts their convictions for rape and against sentence. The victims was the second defendant’s wide.
Held: Applying Morgan, the first defendant’s belief that the victim was consenting was an answer to the charge. His belief was real if unreasonable. However the acquittal of the first defendant based upon a mistaken belief did not mean that no rape had taken place, and accordingly the second defendant’s conviction for aiding and abetting such stood: ‘Her ravishment had come about because L had wanted it to happen and had taken action to see that it did by persuading Cogan to use his body as the instrument for the necessary physical act. In the language of the law the act of sexual intercourse without the wife’s consent was the actus reus: it had been procured by L who had the appropriate mens rea, namely his intention that Cogan should have sexual intercourse with her without her consent. In our judgment it is irrelevant that the man whom L had procured to do the physical act himself did not intend to have sexual intercourse with the wife without her consent. L was using him as a means to procure a criminal purpose.’

Lawton LJ, James LJ, Bristow J
[1975] EWCA Crim 2, [1975] 3 WLR 316,, [1975] 2 All ER 1059, (1975) 61 Cr App Rep 217, (1975) 139 JP 608, [1976] QB 217
England and Wales
CitedRegina v Quick CACD 18-Apr-1973
The defendant appealed against his conviction for assault. He had pleaded guilty after a ruling by the judge as to the meaning of the phrase ‘a defect of reason, from disease of the mind’ within the meaning of the M’Naughten Rules. More particularly . .
CitedRegina v Morgan HL 30-Apr-1975
The defendants appealed against their convictions for rape, denying mens rea and asserting a belief (even if mistaken) that the victim had consented.
Held: For a defence of mistake to succeed, the mistake must have been honestly made and need . .
CitedWalters v Lunt and another 1951
The respondents had been charged under section 33(1) of the 1916 Act with receiving from a child aged seven years, certain articles knowing them to have been stolen.
Held: A child under eight years was deemed in law to be incapable of . .

Lists of cited by and citing cases may be incomplete.


Leading Case

Updated: 02 November 2021; Ref: scu.249932

SW v The United Kingdom; CR v United Kingdom: ECHR 22 Nov 1995

Criminal Law Change not retrospective

The law that marital rape was an offence, was not to be treated as retrospective despite being a common law change. The Court rejected complaints by two applicants who had been found guilty of raping their wives which was an undoubted extension of the concept of rape as had been previously understood.
Held: ‘It is however compatible with the requirements of Article 7(1) for the existing elements of an offence to be clarified or adapted to new circumstances or developments in society in so far as this can reasonably be brought under the original concept of the offence. The constituent elements of an offence may not however be essentially changed to the detriment of an accused and any progressive development by way of interpretation must be reasonably foreseeable to him with the assistance of appropriate legal advice if necessary.’ and ‘However clearly drafted a legal provision may be, in any system of law, including criminal law, there is an inevitable element of judicial interpretation. There will always be a need for elucidation of doubtful points and for adaptation to changing circumstances. Indeed, in the United Kingdom, as in the other Convention States, the progressive development of the criminal law through judicial lawmaking is a well-entrenched and necessary part of legal tradition. Article 7 of the Convention cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resulting development is consistent with the essence of the offence and could reasonably be foreseen.’ and the decision of the House of Lords withdrawing the husband’s immunity was no more than continuing ‘a perceptible line of case law development’ which had ‘reached a stage where judicial recognition of the absence of immunity had become a reasonably foreseeable development of the law.’

Times 05-Dec-1995, [1995] 21 EHRR 363, 20166/92, [1995] ECHR 52
Worldlii, Bailii
European Convention on Human Rights 7
Human Rights
CitedRegina v R HL 23-Oct-1991
H has no right to sexual intercourse with W – rape
The defendant appealed against his conviction for having raped his wife, saying that intercourse with his wife was necessarily lawful, and therefore outside the statutory definition of rape. Due to the matrimonial difficulties, the wife had left . .

Cited by:
CitedRegina v Hobbs, Hobbs, Hobbs, Charge CACD 14-Feb-2002
The defendants appealed sentences of 7.5 and 3 years for conspiracy to facilitate illegal immigration. They had hired lorries with a view to bringing people in It was submitted that the sentences were outside the powers under the Act. The sentence . .
Not fully informedRegina v Crooks CACD 18-Mar-2004
The defendant appealed against a conviction in 2002 for the rape of his wife in 1970. He said that at the time that was not an offence.
Held: The words which at one point appeared to make rape of a wife lawful were a mere technicality. The . .
CitedDouglas and others v Hello! Ltd and others (No 3) CA 18-May-2005
The principal claimants sold the rights to take photographs of their wedding to a co-claimant magazine (OK). Persons acting on behalf of the defendants took unauthorised photographs which the defendants published. The claimants had retained joint . .
CitedRegina v Rimmington; Regina v Goldstein HL 21-Jul-2005
Common Law – Public Nuisance – Extent
The House considered the elements of the common law offence of public nuisance. One defendant faced accusations of having sent racially offensive materials to individuals. The second was accused of sending an envelope including salt to a friend as a . .
CitedNorris v United States of America and others HL 12-Mar-2008
The detainee appealed an order for extradition to the USA, saying that the offence (price-fixing) was not one known to English common law. The USA sought his extradition under the provisions of the Sherman Act.
Held: It was not, and it would . .

Lists of cited by and citing cases may be incomplete.

Crime, Human Rights

Leading Case

Updated: 02 November 2021; Ref: scu.165394

Rodgers, Regina v: CACD 14 Mar 2003

The defendant had pleaded guilty, after a legal ruling, to a count of administering poison contrary to section 23 of the 1861 Act and a count of manslaughter. The court had found that the defendant physically assisted the deceased by holding his belt round the deceased’s arm as a tourniquet, so as to raise a vein in which the deceased could insert a syringe, while the deceased injected himself. It was argued in support of his appeal to the Court of Appeal that the defendant had committed no unlawful act for purposes of either count. The court was asked: ‘has a defendant, who applies and holds a tourniquet on the arm of a drug abuser, while he injects himself with heroin, any defence to a charge under section 23 of the Offences Against the Person Act 1861 or to manslaughter if death results?’
Held: The appeal failed. Rose LJ said: ‘assessment of the appellant’s conduct as being that of a principal or secondary party cannot properly be made by having regard merely to the application of the tourniquet in isolation. It is artificial and unreal to separate the tourniquet from the injection. The purpose and effect of the tourniquet, plainly, was to raise a vein in which the deceased could insert the syringe. Accordingly, by applying and holding the tourniquet, the appellant was playing a part in the mechanics of the injection which caused death. It is therefore, as it seems to us, immaterial whether the deceased was committing a criminal offence.’

Rose LJ, VP CACD, Gross, Pitchers JJ
[2003] EWCA Crim 945, [2003] 2 Cr App R 10, [2003] 1 WLR 1374, [2003] All ER (D) 217
Offences Against the Person Act 1861 23
England and Wales


Leading Case

Updated: 01 November 2021; Ref: scu.245921

Attorney-General’s Reference (No 3 of 1994): HL 24 Jul 1997

The defendant stabbed a pregnant woman. The child was born prematurely and died. The attack had been directed at the mother, and the proper offence was manslaughter.
Held: The only questions which need to be addressed are (1) whether the act was done intentionally, (2) whether it was unlawful, (3) whether it was also dangerous because it was likely to cause harm to somebody and (4) whether that unlawful and dangerous act caused the death. Lord Hope: ‘an embryo is in reality a separate organism from the mother from the moment of its conception.’
A foetus is ‘neither a distinct person separate from its mother, nor merely an adjunct of the mother, but was a unique organism to which existing principles could not necessarily be applied’

Gazette 24-Sep-1997, [1998] 1 Cr App Rep 911, [1997] UKHL 31, [1998] AC 245, [1997] 3 All ER 936, [1997] 3 WLR 421, [1997] Crim LR 829, Times 25-Jul-1997
House of Lords, Bailii
England and Wales
Appeal fromAttorney-General’s Reference (No 3 of 1994) CACD 29-Nov-1995
The defendant was convicted of murder. He stabbed a pregnant woman, causing the premature birth and then death of her child.
Held: Murder is a possible charge for a wound inflicted on an infant en ventre sa mere, but dying after a live birth. . .
CitedRegina v Cunningham HL 8-Jul-1981
A defendant may be convicted of murder if it is established either (1) that he had an intent to kill or (2) that he had an intent to cause really serious bodily injury.
Intention is a state of mind which can never be proved as a fact. It can . .
CitedRegina v Mitchell 1983
An unlawful and dangerous acted directed at one person but injuring somebody else can found a charge of manslaughter. . .
CitedRegina v Pembliton CCCR 1874
The defendant was fighting in the street. He picked up a large stone and threw it at the people he had been fighting with. He missed and broke a window causing damage of a value exceeding pounds 5. The jury convicted the defendant, although finding . .
CitedRegina v Latimer 1886
Two men quarrelled in a public house. One struck at the other with his belt. The glancing blow bounced off and struck the prosecutrix, wounding her severely. He was prosecuted for having unlawfully and maliciously wounded her, contrary to section 20 . .
CitedHyam v Director of Public Prosecutions HL 21-Mar-1974
It is sufficient to raise a prima facie case of murder (subject to entire or partial excuses such as self-defence or provocation) for it to be proved that the defendant did the act which caused the death intending to kill the victim or to cause him . .
CitedRegina v Vickers CCA 1957
The appellant, having broken into a dwelling-house to commit burglary, came upon the occupier whom he struck in a way which according to the medical evidence could have been inflicted with a moderate degree of violence. The victim died as a result. . .
CitedRegina v Church CCA 1965
The defendant was convicted of manslaughter. After he had been unable to satisfy his female victim sexually, he had become angry and had seriously assaulted her. He mistakenly thought she was dead and tipped her in the river where she drowned.
Cited by:
CitedRegina v Kennedy CACD 31-Jul-1998
The defendant was convicted of manslaughter having handed a loaded a syringe with heroin and handed it to a friend who injected himself, and later died.
Held: The defendant had gone beyond the minimum necessary for criminal liability. All it . .
CitedRegina v Woollin HL 2-Apr-1998
The defendant appealed against his conviction for the murder of his child. He had thrown the child to the floor, hitting the head. He said that he had not intended to kill the child.
Held: On a murder charge, where the short direction on . .
CitedRegina (Smeaton) v Secretary of State for Health and Others Admn 18-Apr-2002
The claimant challenged the Order as regards the prescription of the morning-after pill, asserting that the pill would cause miscarriages, and that therefore the use would be an offence under the 1861 Act.
Held: ‘SPUC’s case is that any . .
CitedRegina v Coutts HL 19-Jul-2006
The defendant was convicted of murder. Evidence during the trial suggested a possibility of manslaughter, but neither the defence nor prosecution proposed the alternate verdict. The defendant now appealed saying that the judge had an independent . .
CitedHuman Rights Commission for Judicial Review (Northern Ireland : Abortion) SC 7-Jun-2018
The Commission challenged the compatibility of the NI law relating to banning nearly all abortions with Human Rights Law. It now challenged a decision that it did not have standing to bring the case.
Held: (Lady Hale, Lord Kerr and Lord Wilson . .
CitedCrowter and Others, Regina (On the Application Of) v Secretary of State for Health And Social Care Admn 23-Sep-2021
Foetus has no Established Human Rights
The Claimants sought a declaration that section 1(1)(d) of the Abortion Act 1967, as amended, is incompatible with the European Convention on Human Rights (‘ECHR’), as well as some other remedies. The claimant had Down’s Syndrome, and complained the . .

Lists of cited by and citing cases may be incomplete.


Leading Case

Updated: 01 November 2021; Ref: scu.78009

Regina v Dudley and Stephens: QBD 9 Dec 1884


Three survivors of the yacht Mignonette were landed from a German sailing barge at Falmouth in September 1884. On the day they landed all three of them described the circumstances in which the fourth member of the crew, the ship’s boy had been killed and eaten on their twentieth day of survival on the open sea without water or food (apart from two tins of turnips). Two defendants agreed to, and did eat the cabin boy, the youngest and weakest of the party. The third boat member also ate, but had declined to be involved in the killing. After rescue the two who killed the cabin boy were accused of murder. The facts found, were referred to the Divisional Court for a special verdict.
Held: Lord Coleridge CJ said: ‘From these facts stated with the cold precision of a special verdict it appears sufficiently that the prisoners were subject to terrible temptation, to sufferings which might break down the bodily power of the strongest man, and try the conscience of the best . . But nevertheless this is clear, that the prisoners put to death a weak and unoffending boy upon the chance of preserving their own lives by feeding upon his flesh and blood after he was killed, and with the certainty of depriving him of any possible chance of survival. The verdict finds in terms that ‘if the men had not fed upon the body of the boy they would probably not have survived,’ and that ‘ the boy being in a much weaker condition was likely to have died before them . . Now, except for the purpose of testing how far the observation of a man’s life is in all cases and under all circumstances, an absolute, unqualified, and paramount duty, we exclude from our considerations all incidents of war. We are dealing with a case of a private homicide, not one imposed upon men in the service of their Sovereign and in the defence of their country. Now it is admitted that the deliberate killing of this unoffending and unresisting boy was clearly murder, unless the killing can be justified by some well recognised excuse admitted by the law. It is further admitted that there was in this case no such excuse, unless the killing was justified by what has been called ‘necessity.’ But the temptation to the act which existed here was not what the law has ever called necessity. Nor is this to be regretted. Though law and morality are not the same. and many things may be immoral which are not necessarily illegal, yet the absolute divorce of law from morality would be of fatal consequence; and such divorce would follow if the temptation to murder in this case were to be held by law an absolute defence of it. It is not so. To preserve one’s life is generally speaking a duty, but it may be the plainest and the highest duty to sacrifice it. War is full of instances in which it is a man’s duty not to live, but to die. The duty, in case of shipwreck, of a captain to his crew, of the crew to the passengers, of soldiers to women and children, as in the noble case of the Birkenhead; these duties impose on men the moral necessity, not of the preservation, but of the sacrifice of their lives for others, from which in no country, least of all, it is to be hoped, in England, will men shrink, as indeed they have not shrunk . . It would be a very easy and cheap display of common-place learning to quote from Greek and Latin authors . . passage after passage, in which the duty of dying for others has been laid down in glowing and emphatic language as resulting from the principles of heathen ethics; it is enough in a Christian country to remind ourselves of the Great Example whom we profess to follow. It is not needful to point out the awful danger of admitting the principle which has been contended for. Who is to be the judge of this sort of necessity? By what measure is the comparative value of lives to be measured? Is it to be strength, or intellect, or what? It is plain that the principle leaves to him who is to profit by it to determine the necessity which will justify him in deliberately taking another’s life to save his own. In this case the weakest, the youngest, the most unresisting, was chosen. Was it more necessary to kill him than one of the grown men? The answer must be ‘No . . . ‘ . . . It must not be supposed that in refusing to admit temptation to be an excuse for crime it is forgotten how terrible the temptation was; how awful the suffering; how hard in such trials to keep the judgment straight and the conduct pure. We are often compelled to set up standards we cannot reach ourselves, and to lay down rules which we could not ourselves satisfy. But a man has no right to declare himself to have yielded to it, nor allow compassion for the criminal to change or weaken in any manner the legal definition of the crime. It is therefore our duty to declare that the prisoners’ act in this case was wilful murder, that the facts as stated in the verdict are no legal justification of the homicide; and to say that in our unanimous opinion the prisoners are upon this special verdict guity of murder.’ and ‘if Lord Bacon meant to lay down the broad proposition that a man may save his life by killing, if necessary, an innocent and unoffending neighbour, it certainly is not law at the present day’ (The sentence of death was later commuted to six months imprisonment.)

Lord Coleridge CJ
(1884) 14 QBD 173, [1884] EWHC 2 (QB)
CitedRex v Oneby 1727
Where A and B have a sudden violent quarrel, and later, after tempers should have cooled, A kills B, that is murder. If A says he will revenge himself on B, or will have his blood, that is express malice. The fact of killing is prima facie murder. . .

Cited by:
AppliedRegina v Howe etc HL 19-Feb-1986
The defendants appealed against their convictions for murder, saying that their defences of duress had been wrongly disallowed.
Held: Duress is not a defence available on a charge of murder. When a defence of duress is raised, the test is . .
CitedIn Re A (Minors) (Conjoined Twins: Medical Treatment); aka In re A (Children) (Conjoined Twins: Surgical Separation) CA 22-Sep-2000
Twins were conjoined (Siamese). Medically, both could not survive, and one was dependent upon the vital organs of the other. Doctors applied for permission to separate the twins which would be followed by the inevitable death of one of them. The . .

Lists of cited by and citing cases may be incomplete.


Leading Case

Updated: 01 November 2021; Ref: scu.185683

Aklagaren v Hans Akerberg Fransson: ECJ 26 Feb 2013


ECJ (Grand Chamber) Charter of Fundamental Rights of the European Union – Field of application – Article 51 – Implementation of European Union law – Punishment of conduct prejudicial to own resources of the European Union – Article 50 – Ne bis in idem principle – National system involving two separate sets of proceedings, administrative and criminal, to punish the same wrongful conduct – Compatibility

V Skouris, P
C-617/10, [2013] EUECJ C-617/10, 15 ITL Rep 698, [2013] 2 CMLR 46, [2013] STC 1905
Charter of Fundamental Rights of the European Union 51, European Convention on Human Rights P7

European, Human Rights, Crime, Taxes Management

Leading Case

Updated: 01 November 2021; Ref: scu.471209

Regina v Lancaster: CACD 2 Mar 2010

Whether Ommission Significant on Benefits Claim

The defendant appealed against his conviction for false accounting. He had been claiming council tax benefit and housing benefit, but had failed to notify the council of a change in his circumstances.
Held: The appeal failed. The court considered that the phrase ‘omits a material particular’ in the section referred to an omisssion where the resulting document could mislead in a way which was significant, and ‘Whether the omission is significant will depend on the nature of the document and the context. The test is objective, although it would not be helpful to the jury to use that term. A less lawyerish way of expressing it is to say that it is for the jury to judge for themselves, on the particular facts of the case, whether they regard the omission as significant.’

Lord Justice Toulson, Mr Justice Cox and Judge Barker, QC
[2010] EWCA Crim 370, [2010] WLR (D) 63, [2010] Crim LR 776, [2010] 3 All ER 402, [2010] 2 Cr App R 7, [2010] 1 WLR 2558, [2010] HLR 40
Bailii, Times, WLRD
Theft Act 1968 17
England and Wales
CitedRegina v Mallett CACD 1978
The defendant car dealer had made out and used a hire-purchase agreement form which falsely stated that the hirer had been a company director for a named company for several years. Relying on the information, a finance company financed the . .
CitedOsinuga v Director of Public Prosecutions QBD 26-Nov-1997
False information which was provided in a Housing Benefit application form would be used in accounting and constitutes false accounting. . .
DistinguishedPassmore, Regina v CACD 18-Jun-2007
P was claiming housing and council tax benefit. He had been convicted of dishonestly failing to give prompt notification of ‘a change of circumstances affecting any entitlement of his to any benefit or other payment or advantage under the relevant . .

Lists of cited by and citing cases may be incomplete.

Crime, Benefits

Leading Case

Updated: 01 November 2021; Ref: scu.401976