Tag: Crime

Rex v Pritchard; 21 Mar 1836

References: [1836] 7 C & P 303, [1836] EngR 540, (1836) 7 Car & P 303, (1836) 173 ER 135
Links: Commonlii
Coram: Alderson B
Ratio:A person, deaf and dumb, was to be tried for a capital felony the Judge ordered a Jury to be impanneled, to try whether he was mute by the visitation of God, the jury found that he was so. The jury were then sworn to try whether he was able to plead, which they found in the affirmative, and the prisoner, by a sign, pleaded Not guilty The Judge then ordered the jury to be sworn to try whether the prisoner was ‘now sane or not’; and on this question, his Lordship directed the jury to consider whether the prisoner had sufficieut intellect to comprehend the course of the proceedings, so as to make a proper defence, to challenge any juror he might wish to object to, and to comprehend the details of the evldence, and that if they thought he had not, they should find him not of sane mind. The jury did so, and the Judge ordered the prisoner to be detained.
The court stated the test for whether a defendant was fit to plead. Alderson B said: ‘There are three points to be enquired into:- first, whether the prisoner is mute of malice or not; secondly, whether he can plead to the indictment or not; thirdly, whether he is of sufficient intellect to comprehend the course of the proceedings in the trial so as to make a proper defence – to know that he might challenge any of you [the jury] to whom he may object – and to comprehend the details of the evidence, which in a case of this nature must constitute a minute investigation.”
This case cites:

  • Mentioned – Rex v Dyson (Unreported, 1831)
    Parke J empanelled a jury to decide whether the defendant was fit to plead. In directing the jury the judge referred to the following passage in Hale’s Pleas of the Crown, vol I, p 34: ‘If a man in his sound memory commits a capital offence, and . .

(This list may be incomplete)
This case is cited by:

  • Cited – Crown Prosecution Service v P; Director of Public Prosecutions v P Admn (Bailii, [2007] EWHC 946 (Admin), [2007] 4 All ER 628, [2008] 1 WLR 1005)
    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 . .
  • Cited – Taitt v The State PC (Bailii, [2012] UKPC 38)
    (Trinidad & Tobago) The defendant sought leave to appeal against his conviction for murder, with the death penalty mandatory sentence. He was of severely low intelligence.
    Held: The appeal against conviction would not be allowed. Settled law . .
  • Confirmed – Regina v Robertson CACD ((1968) 52 Cr App R 690, [1968] 3 All ER 557, [1968] 1 WLR 1767)
    The evidence suggested that the defendant had a complete understanding of the legal proceedings in which he was involved but, also that, through mental illness, he had suffered delusions which may have effected his ability ‘properly’ to conduct his . .
  • Cited – Regina v Berry CACD ([1978] 66 Cr App R 156)
    Although a person was highly abnormal, it did not mean that he was incapable of doing those things set out in Pritchard as the requirements to be fit to be tried. Lord Lane CJ set aside a finding that the defendant was unfit to stand trial, saying: . .
  • Explained – John M, Regina v CACD (Bailii, [2003] EWCA Crim 3452, [2004] MHLR 86)
    The trial judge had directed the jury, determining fitness to plead, with an extended formulation of the test, including the appellant’s ability to give evidence, if he wished, in his own defence. This facility had been described to mean that ‘the . .
  • Cited – Brown v The Queen PC (Bailii, [2016] UKPC 6, Privy Council Appeal No 0104 of 2014)
    Court of Appeal of Jamaica – Appeal against conviction for murder – challenge as to capacity to plead.
    Held: The appeal against conviction failed, but the appeal against sentence succeeded. . .
  • Cited – Lumsdon and Others, Regina (on The Application of) v Legal Services Board SC (Bailii, [2015] UKSC 40, [2015] Crim LR 894, [2015] WLR(D) 270, [2015] 3 CMLR 42, [2015] HRLR 12, [2015] 3 WLR 121, [2016] 1 All ER 391, WLRD, Bailii Summary, UKSC 2014/0081, SC, SC Summary, SC Video)
    The appellant challenged the respondent’s approval of alterations to their regulatory arrangements, under Part 3 of Schedule 4 to the 2007 Act. The alterations gave effect to the Quality Assurance Scheme for Advocates providing for the assessment of . .
  • Cited – Orr, Regina v CACD (Bailii, [2016] EWCA Crim 889, [2016] WLR(D) 378, WLRD)
    The court considered whether the trial court had correctly identified the test for fitness to plead.
    Held: The appeal was allowed: ‘Once the issue of fitness to plead has been raised it must be determined. In this case, the judge explicitly . .

(This list may be incomplete)

Last Update: 21-Jul-16
Ref: 251549

Regina v Salisbury; 9 Oct 1972

References: [1976] VR 452, [1976] VicRp 45
Coram: Young CJ, Nelson, Harris JJ
Ratio:Australia – Victoria The court considered the nature of the act required to found an allegation of assault: ‘It may be that the somewhat different wording of section 20 of the English Act has played a part in bringing about the existence of the two lines of authority in England, but, be that as it may, we have come to the conclusion that, although the word ‘inflicts’ . . does not have as wide a meaning as the word ’causes’ . . the word ‘inflicts’ does have a wider meaning than it would have if it were construed so that inflicting grievous bodily harm always involved assaulting the victim. In our opinion, grievous bodily harm may be inflicted . . either where the accused has directly and violently ‘inflicted’ it by assaulting the victim, or where the accused has ‘inflicted’ it by doing something, intentionally, which, though it is not itself a direct application of force to the body of the victim, does directly result in force being applied violently to the body of the victim, so that he suffers grievous bodily harm. Hence, the lesser misdemeanours of assault occasioning actual bodily harm and common assault . . are not necessarily included in the misdemeanour of inflicting grievous bodily harm . .’
This case is cited by:

  • Cited – Haystead v Director of Public Prosecutions QBD (Times 02-Jun-00, Bailii, [2000] EWHC QB 181, [2000] COD 288, (2000) 164 JP 396, [2000] 2 Cr App Rep 339, [2000] Crim LR 758, [2000] 3 All ER 890)
    The defendant had hit a mother in the face as she held the child. The force was sufficient to cause her to drop the child causing injury to the child. He appealed against a conviction for beating the child.
    Held: The appeal failed. A battery . .

(This list may be incomplete)

Last Update: 20-Jul-16
Ref: 547668

Attorney-General’s Reference (No 2 of 2003); 1 Apr 2004

References: Unreported, 1 April 2004
Coram: Judge LJ, Elias, Stanley Burnton JJ
Ratio:The license holder of a fertility clinic was accused of keeping an embryo otherwise than in pursuance of the licence. The clinic had employed a respected consultant who had carried out the task, but had done so unlawfully.
Held: The Act made a clear distinction between the person responsible for keeping the embryos and the license holder. The licence holder might be subject to disciplinary procedures within the licence system, but he had not been the person responsible within the Act in this case.
Statutes: Human Fertilisation and Embryology Act 1990

Last Update: 07-Jul-16
Ref: 196067

Regina v Economou; 2 Jun 2016

Links: Judiciary
Ratio:Westminster Magistrates’ Court – The defendant faced a charge of harassment under the 1997 Act. A Ms De Freitas had laid a complaint of rape against but no further action had been taken. He began in turn proceedings alleging attempted perversion of the course of justice, during the course of which she committed suicide. Her father was unhappy with the procedures followed and complained publicly without naming the defendant. The now defendant was said to have created a website complaining as to the father’s behaviour, maintaining his own innocence and sending images from the deceased girl’s own website advertising her services as a masseuse or call girl.
Held: The defendant was not guity. ‘the material that the Defendant posted was upsetting, a grieving father was being drawn to information about his dead daughter which painted her as a call-girl and as a liar. That was surely distressing, even if all true. It was also embarrassing, not only in the uploading of the purchase of the sex aids bought but the fact that she had been offering her services as a masseuse in the sex industry. On the other hand, David de Freitas in his campaigning in the media, was, as the prosecution themselves put it, ‘asserting that his daughter’s allegation of rape was true’. This, the Defendant, says, was causing harm to his reputation.’
In the circumstances, the court could not be sure of that the hypothetical reasonable person in possession of the same information as the Defendant would think the course of conduct amounted to harassment.
Statutes: Protection from Harassment Act 1997 2

Last Update: 21-Jun-16
Ref: 565709

HKSAR v Li Kwok Cheung George; 5 Jun 2014

References: [2014] HKCFA 48, [2014] 4 HKC 101
Links: HKLII, Hklii, Hklii Summary
Coram: Mr Justice Ribeiro PJ, Mr Justice Tang PJ,, Mr Justice Fok PJ, Mr Justice Bokhary NPJ,, Lord Collins of Mapesbury NPJ
Ratio:Hong Kong Court of Final Appeal The court considered the wording of a Hong Kong money laundering ordinance.
Held: Ribeiro and Fok PJJ said in their joint judgment with which the other members of the Court of Final Appeal agreed, at para 84: ‘It is one thing to criminalise dealing with funds where the dealer knows or has reasonable grounds to believe that they are the proceeds of crime, it is quite a different matter to stigmatise as a money launderer, a lender dealing with its own ‘clean’ funds because of what the borrower does or intends to do with them.’
This case is cited by:

  • Cited – GH, Regina -v- SC (Bailii, [2015] UKSC 24, [2015] 1 WLR 2126, [2015] WLR(D) 178, Bailii Summary, WLRD, UKSC 2014/0035, SC, SC Summary)
    Appeal against conviction for entering into an arrangement for the retention of criminal funds. The defendant said that at the time of the arrangement there were not yet any criminal funds in existence. A had set up websites intending to con . .

(This list may be incomplete)

Last Update: 15-Jun-16
Ref: 565398

Regina v Oakes; 28 Feb 1986

References: [1986] 1 SCR 103, 1986 CanLII 46 (SCC), 53 OR (2d) 719, 24 CCC (3d) 321, 50 CR (3d) 1, 65 NR 87, [1986] CarswellOnt 95, EYB 1986-67556, [1986] SCJ No 7 (QL), 14 OAC 335, 16 WCB 73, [1986] ACS no 7, 19 CRR 308
Links: Canlii
Coram: Dickson C.J. and Estey, McIntyre, Chouinard, Lamer, Wilson and Le Dain JJ.
Ratio:Supreme Court of Canada – Constitutional law — Charter of Rights — Presumption of innocence (s. 11(d)) — Reverse onus clause — Accused presumed to be trafficker on finding of possession of illicit drug — Onus on accused to rebut presumption — Whether or not reverse onus in violation of s. 11(d) of the Charter — Whether or not reverse onus a reasonable limit to s. 11(d) and justified in a free and democratic society — Canadian Charter of Rights and Freedoms, ss. 1, 11(d) — Narcotic Control Act, R.S.C. 1970, c. N-1, ss. 3(1), (2), 4(1), (2), (3), 8.
Criminal law — Presumption of innocence — Reverse onus — Accused presumed to be trafficker on finding of possession of illicit drug — Onus on accused to rebut presumption — Whether or not constitutional guarantee of presumption of innocence (s. 11(d) of the Charter) violated.
This case is cited by:

(This list may be incomplete)

Last Update: 10-Jun-16
Ref: 564962

Attorney-General v Whelan; 20 Dec 1933

References: [1934] IR 518, [1933] IEHC 1
Links: Bailii
Coram: Murnaghan J
Ratio:(Court of Criminal Appeal – Ireland) The appellant had been tried as part of a conspiracy to steal and to receive stolen good. He was acquitted of the conspiracy, but now appealed against his conviction for theft despite his assertion that he acted only under coercion.
Held: He was acquitted: ‘ It seems to us that threats of immediate death or serious personal violence so great as to overbear the ordinary power of human resistance should be accepted as a justification for acts which would otherwise be criminal. The application of this general rule must however be subject to certain limitations. The commission of murder is a crime so heinous that murder should not be committed even for the price of life and in such a case the strongest duress would not be any justification. We have not to determine what class of crime other than murder should be placed in the same category. We are, however, satisfied that any such consideration does not apply in the case of receiving. Where the excuse of duress is applicable it must further be clearly shown that the overpowering of the will was operative at time the crime was actually committed, and, if there were reasonable opportunity for the will to reassert itself, no justification can be found in antecedent threats. ‘
This case cites:

  • Cited – Oldcastle’s Case
    In a case of treason immediate fear of death can be a justification. . .
  • Cited – Alexander MacGrowther’s Case ([1746] Fost 13, Commonlii, [1746] EngR 782, (1746) Fost 13, (1746) 168 ER 8)
    In the rule that necessity might be a defence to a criminal charge, the distinction was drawn between threats directed against the person and threats upon property. ‘The only force that doth excuse is a force upon the person, and present fear of . .
  • Cited – Rex -v- Stratton ((1779) 21 How St Tr 1045)
    It was just possible to imagine cases in which the expediency of breaking the law was so overwhelming that people might be justified in breaking it. The rule could be extended to cases of treason upon a general principle that it could to be extended . .

(This list may be incomplete)
This case is cited by:

  • Cited – Hasan, Regina -v- HL (Bailii, [2005] UKHL 22, Times 21-Mar-05, House of Lords)
    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 . .

(This list may be incomplete)

Last Update: 09-Jun-16
Ref: 223665

Soltau v De Held; 11 Dec 1851

References: (1851) 2 Sim NS 133, 61 ER 291, [1851] EngR 992, (1851) 61 ER 291
Links: Commonlii
Coram: Kindersley V-C
Ratio The court considered an allegation of causing a public nuisance: ‘I conceive that, to constitute a public nuisance, the thing must be such as, in its nature or its consequences, is a nuisance – an injury or a damage, to all persons who come within the sphere of its operations, though it may be so in a greater degree to some than it is to others.’
This case is cited by:

  • Cited – Regina -v- Rimmington; Regina -v- Goldstein HL (Bailii, Times 28-Oct-05, House of Lords, [2005] UKHL 63, Bailii, [2005] 3 WLR 982, [2006] 1 AC 459, [2006] 1 Cr App R 17, [2006] 2 All ER 257, [2006] Crim LR 153, [2006] UKHRR 1, [2006] HRLR 3)
    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 . .

(This list may be incomplete)

Last Update: 27-Apr-16
Ref: 231622

The Queen v Johns (TS); 7 Feb 1980

References: (1980) 143 CLR 108, [1980] HCA 3
Links: Austlii
Coram: Mason, Murphy and Wilson JJ
High Court of Australia – Criminal Law (N.S.W.) – Accessory before the fact – Liability – Possible consequences of venture planned with principal in first degree – Sentence of accessory – Whether judge may impose sentence of less duration than life – Crimes Act, 1900 (N.S.W.), ss. 19, 346, 442 (1).
The appellant had been convicted of murder and assault with intent to rob. His role was to drive the principal offender, W, to a rendezvous with a third man, D. The appellant was to wait at the rendezvous while the other two men robbed a known receiver of stolen jewellery. Afterwards the appellant was to take possession of the proceeds and hide them in return for a share. The appellant knew that W was carrying a pistol, and W told him that he would not stand for any nonsense if he met any obstacle during the robbery. In the event the victim resisted and W shot him dead.
The judge had directed the jury that the appellant and D would be guilty if the act constituting the offence committed was within the contemplation of the parties as an act done in the course of the venture on which they had embarked. It was argued on the appellant’s behalf that while this was an appropriate direction in the case of D, who was present and therefore a principal in the second degree, it was a misdirection in the case of the appellant, who was an accessory before the fact. It was submitted that in his case it was necessary for the jury to conclude that it was a likely or probable consequence of the way in which the crime was to be committed that the gun would be discharged so as to kill the deceased.
Held: The High Court unanimously rejected the argument that any distinction was to be drawn between the liability of a principal in the second degree and an accessory before the fact. There was no reason as a matter of legal principle why such a distinction should be drawn. They also said: ‘The narrow test of criminality proposed by the applicant is plainly unacceptable for the reason that it stakes everything on the probability or improbability of the act, admittedly contemplated, occurring. Suppose a plan made by A, the principal offender, and B, the accessory before the fact, to rob premises, according to which A is to carry out the robbery. It is agreed that A is to carry a revolver and use it to overcome resistance in the unlikely event that the premises are attended, previous surveillance having established that the premises are invariably unattended at the time when the robbery is to be carried out. As it happens, a security officer is in attendance when A enters the premises and is shot by A. It would make nonsense to say that B is not guilty merely because it was an unlikely or improbable contingency that the premises would be attended at the time of the robbery, when we know that B assented to the shooting in the event that occurred.
In the present case there was ample evidence from which the jury could infer that the applicant gave his assent to a criminal enterprise which involved the use, that is the discharge, of a loaded gun, in the event that [the victim] resisted or sought to summon assistance. We need not recapitulate the evidence to which we have already referred. The jury could therefore conclude that the common purpose involved resorting to violence of this kind, should the occasion arise, and that the violence contemplated amounted to grievous bodily harm or homicide.’
Last Update: 29-Feb-16 Ref: 560305

Rex v Collison; 16 Mar 1831

References: , [1831] EngR 502, (1831) 4 Car & P 565, (1831) 172 ER 827 (B)
Links: Commonlii
Coram: Garrow B
Ratio Two men went out by night with carts to steal apples. They were detected by the landowner’s watchman. One of the thieves attacked him with a bludgeon which he was carrying and caused the man severe injury. The second thief was tried for assault and wounding with intent to murder.
Held: Garrow B ruled: ‘To make the prisoner a principal, the Jury must be satisfied that, when he and his companion went out with a common illegal purpose of committing the felony of stealing apples, they also entertained the common guilty purpose of resisting to death, or with extreme violence, any persons who might endeavour to apprehend them; but if they had only the common purpose of stealing apples, and the violence of the prisoner’s companion was merely the result of the situation in which he found himself, and proceeded from the impulse of the moment, without any previous concert, the prisoner will be entitled to an acquittal.’
This case is cited by:

(This list may be incomplete)
Last Update: 07-Mar-16 Ref: 320380

Dip Kaur v Chief Constable of Hampshire; 10 Oct 1981

References: [1981] 1 WLR 578, [1981] 2 All ER 430, [1981] Crim LR 259, (1981) 72 Cr App R 359, (1981) 145 JP 313
Coram: Lord Lane CJ
Lord Lane CJ said: ‘the court should not be astute to find that a theft has taken place where it would be straining the language so to hold, or where the ordinary person would not regard the defendant’s acts, though possibly morally reprehensible, as theft.’
Statutes: Theft Act 1968
Last Update: 02-Dec-15 Ref: 556205

Regina v Roffel; 19 Dec 1984

References: [1985] VR 511, [1985] VicRp 51
Links: Austlii
Coram: Young CJ, Crockett, Brooking JJ
(Australia – Supreme Court of Victoria) A couple ran a clothing manufacturing business. They then formed a limited company of which they became the sole directors and shareholders and sold the business to the company. The price remained unpaid. The company’s premises were destroyed by fire and the proceeds of insurance were paid into the company’s bank account. The company’s debts exceeded the proceeds of the insurance. The husband drew cheques on the company’s account and was prosecuted for theft from the company and convicted.
Held: (Majority) The court quashed the conviction. Under the Crimes Act 1958 the necessary element of appropriation required proof of adverse interference with or usurpation of some right or rights of the owner (Regina v. Morris). As the company was a separate legal entity, and in the particular circumstances (through its directing mind and will) had consented to the husband’s drawing the cheques, it could not be said that he had appropriated the company’s property.
This case is cited by:

  • Disapproved – Regina -v- Philippou CA ((1989) 89 Cr App R 290, Times 06-Apr-89)
    The defendants were sole directors and shareholders of their company. They appealed a conviction of theft from the company.
    Held: The convictions stood. ‘Appropriates’ is to be given its ordinary English meaning, namely, ‘takes as one’s own or . .
  • Disapproved – Director of Public Prosecutions -v- Gomez HL (Gazette 03-Mar-93, Times 08-Dec-92, [1993] AC 442, Hamlyn, Bailii, [1992] UKHL 4, [1993] 1 All ER 1)
    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 . .

(This list may be incomplete)
Last Update: 26-Oct-15 Ref: 214209

Carter v Canada (Attorney General); 15 Jun 2012

Links: Canlii
Coram: The Honourable Madam Justice Lynn Smith
Supreme Court of British Columbia – [1] The plaintiffs have challenged the Criminal Code of Canada provisions prohibiting physician-assisted dying, relying on the Canadian Charter of Rights and Freedoms. In the Reasons for Judgment that follow, I describe the evidence and legal arguments that have led me to conclude that the plaintiffs succeed in their challenge. They succeed because the provisions unjustifiably infringe the equality rights of Gloria Taylor and the rights to life, liberty and security of the person of Gloria Taylor, Lee Carter and Hollis Johnson.
[2] Under s. 52 of the Constitution Act, the provisions are declared invalid, but the operation of that declaration is suspended for one year. During the period of suspension, a constitutional exemption will permit Ms. Taylor the option of physician-assisted death under a number of conditions.
[3] I will summarize, in brief, my findings of fact and legal reasoning.
[4] Palliative care, though far from universally available in Canada, continues to improve in its ability to relieve suffering. However, even the very best palliative care cannot alleviate all suffering, except possibly through sedation to the point of persistent unconsciousness (palliative sedation).
[5] Currently accepted and legal end-of-life practices in Canada allow physicians to follow patients’ or substitute decision-makers’ instructions to withhold or withdraw life-sustaining treatment from patients. Accepted practices also allow physicians to administer medications even in dosages that may hasten death, and to administer palliative sedation. Ethicists and medical practitioners widely concur that current legal end-of-life practices are ethically acceptable. Some of these currently accepted practices bear similarities to physician-assisted death, but opinions differ as to whether they are ethically on a different footing.
[6] Medical practitioners disagree about the ethics of physician-assisted death. There are respected practitioners who would support legal change. They state that providing physician-assisted death in defined cases, with safeguards, would be consistent with their ethical views. However, other practitioners and many professional bodies, including the Canadian Medical Association, do not support physician-assisted death.
[7] Despite a strong societal consensus about the extremely high value of human life, public opinion is divided regarding physician-assisted death. The substantial majority of committees that have studied the question, in Canada and elsewhere, oppose physician-assisted death but a minority support it.
[8] The most commonly expressed reason for maintaining a distinction between currently accepted end-of-life practices and physician-assisted death is that any system of safeguards will not adequately protect vulnerable people.
[9] Most Western countries do not permit physician-assisted dying or assisted dying, but a few do (Netherlands, Belgium, Luxembourg and Switzerland). Three of the United States permit physician-assisted dying, in the case of Oregon and Washington through legislation. The jurisdictions that permit physician-assisted dying have created safeguards to ensure that only defined categories of patients are involved, and that protocols including second opinions and reporting requirements are followed. Research findings show differing levels of compliance with the safeguards and protocols in permissive jurisdictions. No evidence of inordinate impact on vulnerable populations appears in the research. Finally, the research does not clearly show either a negative or a positive impact in permissive jurisdictions on the availability of palliative care or on the physician-patient relationship.
[10] The defendants identify a number of areas of risk for patients if physician-assisted death is permitted, for example relating to the patients’ ability to make well-informed decisions and their freedom from coercion or undue influence, and to physicians’ ability to assess patients’ capacity and voluntariness. The evidence shows that risks exist, but that they can be very largely avoided through carefully-designed, well-monitored safeguards.
[11] I turn to the legal issues.
[12] The Supreme Court of Canada Rodriguez decision from 1993 is a binding authority with respect to certain aspects of the plaintiffs’ claims.
[13] Rodriguez decides that s. 241(b) of the Criminal Code (the assisted suicide prohibition) engages Ms. Taylor’s rights to security of the person and liberty under s. 7 of the Charter, and that the legislation is not arbitrary. It leaves open whether the legislation infringes Ms. Taylor’s right to life. Further, it does not decide whether any of the plaintiffs has been deprived of s. 7 rights through legislation that is not in accordance with two principles of fundamental justice that had not yet been identified as such when Rodriguez was decided. Those are the principles that laws must not be overbroad, and that laws must not be grossly disproportionate.
[14] Rodriguez does not determine whether s. 241(b) of the Criminal Code infringes Ms. Taylor’s equality rights under s. 15 of the Charter. The majority in Rodriguez concluded that, if there was an infringement of s. 15 (a question it did not decide), the infringement constituted a reasonable limit and was demonstrably justified under s. 1 of the Charter. Because the analytical approach to s. 1 of the Charter has been modified since Rodriguez, I have addressed the question of s. 1 justification on the evidentiary record in this case.
[15] The claim that the legislation infringes Ms. Taylor’s equality rights begins with the fact that the law does not prohibit suicide. However, persons who are physically disabled such that they cannot commit suicide without help are denied that option, because s. 241(b) prohibits assisted suicide. The provisions regarding assisted suicide have a more burdensome effect on persons with physical disabilities than on able-bodied persons, and thereby create, in effect, a distinction based on physical disability. The impact of the distinction is felt particularly acutely by persons such as Ms. Taylor, who are grievously and irremediably ill, physically disabled or soon to become so, mentally competent, and who wish to have some control over their circumstances at the end of their lives. The distinction is discriminatory, under the test explained by the Supreme Court of Canada in Withler, because it perpetuates disadvantage.
[16] The legislation’s infringement of s. 15 equality rights is not demonstrably justified under s. 1 of the Charter. The purpose of the absolute prohibition against physician-assisted suicide, as determined by Rodriguez, is to prevent vulnerable persons from being induced to commit suicide at times of weakness. That purpose is pressing and substantial and the absolute prohibition against assisted suicide is rationally connected to it. However, a less drastic means of achieving the legislative purpose would be to keep an almost-absolute prohibition in place with a stringently limited, carefully monitored system of exceptions allowing persons in Ms. Taylor’s situation – grievously and irremediably ill adult persons who are competent, fully-informed, non-ambivalent and free from coercion or duress – to access physician-assisted death. Thus, the legislation does not impair Ms. Taylor’s equality rights as little as possible. Further, the legislation has very severe adverse effects on Ms. Taylor and others in her situation, that are not outweighed by its benefits. For those reasons, and despite affording due deference to Parliament, I conclude that the legislation’s absolute prohibition falls outside the bounds of constitutionality.
[17] The claimed infringement of s. 7 rights differs as among the plaintiffs. With respect to Ms. Taylor, the legislation affects her rights to liberty and security of the person, as was found in Rodriguez. In addition, the legislation affects her right to life because it may shorten her life. Ms. Taylor’s reduced lifespan would occur if she concludes that she needs to take her own life while she is still physically able to do so, at an earlier date than she would find necessary if she could be assisted. With respect to Ms. Carter and Mr. Johnson, the legislation affects their rights to liberty because they are at risk of incarceration, at least in theory, for having helped a loved one who obtained assisted death in Switzerland.
[18] The legislation deprives the plaintiffs of their s. 7 rights inconsistently with the principles of fundamental justice. First, the legislation is overbroad. Second, the legislative response – an absolute prohibition – is grossly disproportionate to the objectives it is meant to accomplish. As with the s. 15 infringement, the s. 7 infringement would not be justified under s. 1.
[19] The declaration of invalidity is suspended for one year in order to permit Parliament to take whatever steps it sees fit to draft and consider legislation. For one of the successful plaintiffs, Gloria Taylor, to have an effective remedy, she must be granted a constitutional exemption during the period of suspension. She will be permitted to seek, and her physician will be permitted to proceed with, physician-assisted death under specified conditions.

Regina v Pitts; 17 Mar 1842

References: [1842] EngR 395 (A), (1842) Car & M 284
Links: Commonlii
Coram: Erskine J
If a person, being attacked, should from an apprehension of immediate violence, an apprehension which must be well grounded and justified by the circumstances, throw himself for escape into a river, and be drowned, the person attacking him is guilty of murder.

The Queen v Gompertz, Lewis, William Witham, Robert Witham And Francis Witham; 17 Dec 1846

References: [1846] EngR 1219, (1847) 9 QB 824, (1846) 115 ER 1491
Links: Commonlii
A count in an indictment is good which simply charges that defendants, unlawfully, &c., did conspire, combine, confederate and agree together, by divers false pretences and indirect means to cheat and defraud R. of his moneys. Where an indictment for conspiracy Contains several counts, if only a single conspiracy be proved, the verdict may nevertheless be taken on so many of the counts as describe the conspiracy consistently with the proof. In the course of proving a conspiracy to defraud, carried into effect by prevailing upon the prosecutor to accept bills, a warrant of attorrney, given to him for the purpose of inducing him to accept, reciting the acceptance may be given in evidence though unstamped. An indictment for conspiring to defraud the the prosecutor may be supported by proof of a conspiracy to obtain his acceptances, though the prosecutor part with no money, and though he never has intended to take up the acceptances, and though the bills were never in his hands except for the purpose of his accepting. Where all of several defendants in an indictment for conspiracy are found guilty, if one of them shew himself entitled to a new trial on grounds not affect ing the others, the new trial will nevertheless be granted as to all.

Hanway v Boultbee; 30 Nov 1830

References: [1830] 1 M and Rob 15, [1830] EngR 887, (1830) 4 Car & P 350, (1830) 172 ER 735 (B), [1830] EngR 888, (1830) 174 ER 6
Links: Commonlii, Commonlii
A person may use a proportionate degree of force to defend himself, or others, from attack or the threat of imminent attack, or to defend his property or the property of others in the same circumstances.
This case is cited by:

Pushpanathan v Canada (Minister of Citizenship and Immigration); 3 Sep 2002

References: [2002] FCJ No 1207, 2002 FCT 867
Links: UNCHR
Coram: Blais J
FCC (Federal Court of Canada – Trial Division) – Application by Pushpanathan for judicial review of a decision of the Convention Refugee Determination Division that he was not a Convention refugee. Pushpanathan was a Tamil citizen of Sri Lanka. He alleged that he was persecuted on the basis of his political opinions and was detained after participating in a political demonstration. While in Canada, Pushpanathan was convicted of conspiracy to traffic heroine along with five other Tamils and served over two years in a federal penitentiary. At his first hearing, the Refugee Division found that the conviction excluded him from refugee status because it was contrary to the purposes and principles of the United Nations. On appeal, the court ordered a new hearing. At the second hearing, the Refugee Division found that Pushpanathan was excluded from refugee protection on the basis of his involvement in crimes against humanity and terrorist activities associated with the Liberation Tigers of Tamil Eelam.
HELD: Application dismissed. The standard of review was less than a balance of probabilities. The Refugee Division correctly concluded that the Liberation Tigers was a terrorist organization. Through the trafficking of narcotics, Pushpanathan was complicit in supporting the Liberation Tigers and demonstrated a personal knowing participation and common purpose with the Tigers.
This case is cited by:

  • Cited – Al-Sirri -v- Secretary of State for The Home Department SC (Bailii, [2012] UKSC 54, [2012] 3 WLR 1263, [2012] WLR(D) 333, Bailii Summary, UKSC 2009/0036, SC Summary, SC, [2013] 1 AC 745, [2013] 1 All ER 1267)
    The appellants had been refused refugee status on the ground that they were suspected of having been guilty of terrorist acts. They said that the definition of terrorism applied within the UK was wider than that in the Convention which contained the . .

Regina v Ludlam et al; 11 Oct 2011

References: Unreported, 11 Oct 2011
Coram: HHJ Head
HHJ Head said: that ‘merely acting in ways which would otherwise be lawful but which constitute a breach of an Restraint Order cannot amount to the necessary ingredients of Perverting’.
Statutes: Criminal Justice Act 1988 77
This case is cited by:

  • Distinguished – Kenny -v- Regina CACD (Bailii, [2013] EWCA Crim 1)
    The appellant had made a loan to a third party defendant in criminal fraud proceedings. At the time he did not know that that third party was subject to a restraint order under the 2002 Act. When he did come to know of the order he was asked to say . .

Regina v John Swindall And James Osborne; 23 Mar 1846

References: [1846] EngR 506, (1846) 2 Car & K 230, (1846) 175 ER 95
Links: Commonlii
If each of two persons be driving a cart at a dangerous and furious rate, and they be inciting: each other to drive at a dangerous and furious rate along a turnpike road, and one of the carts run over a man and kill him, each of the two persons is guilty of manslaughter, and it is no ground of defence, that the death was partly caused by the negligence of the deceased himself, or that he was either deaf or drunk at the time Generally, it may be laid down, that, where one by his negllgence has contributed to the death of another, he is guilty of manslaughter.

Regina v Hopley: 1860

References: (1860) 2 F&F 202, [1860] EWCC J42, [1860] EngR 191 (B)
Links: Bailii, Commonlii
(Summer Assizes, 1860) The prisoner was indicted for the manslaughter of Reginald Cancellor. The prisoner was a schoolmaster at Eastbourne, and in 1859 the deceased, a boy aged thirteen or fourteen, had been entrusted to his charge. He was a dull boy. At Christmas there were some complaints of chastisement inflicted on him by the prisoner. He returned to school, however, after the holidays, and again at Easter on the 16th April.
Held: A parent or someone to whom the parent has delegated authority may inflict physical hurt on his or her child, provided that it does not go too far, and is for the purpose of correction and not the gratification of passion or rage.
This case is cited by:

  • Cited – Regina -v- Brown (Anthony); Regina -v- Lucas;etc HL (Independent 12-Mar-93, lip, [1994] 1 AC 212, Bailii, [1992] UKHL 7, [1993] 2 WLR 556, [1993] 2 All ER 75)
    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 . .

(This list may be incomplete)
Last Update: 02-Nov-15 Ref: 182078

P V Narashimo Rao v State; 17 Apr 1998

References: [1998] INSC 229
Links: LII of India
(Supreme Court of India) Members of Parliament were protected by privilege from prosecution for bribery in respect of voting in parliamentary proceedings.
This case is cited by:

  • Cited – Chaytor and Others, Regina -v- SC (Bailii, [2010] UKSC 52, Bailli Summary, [2010] WLR (D) 311, WLRD, UKSC 2010/0195, SC Summary, SC, [2011] 1 Cr App R 22, [2010] 3 WLR 1707, [2011] 1 All ER 805)
    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 . .

Regina v Jones; CCR 1898

References: [1898] 1 QB 119
Ratio There must be some deceit spoken, written or acted to constitute a false pretence.
This case is cited by:

  • Cited – Director of Public Prosecutions -v- Ray HL (Bailii, [1973] UKHL 3, [1974] AC 370)
    The defendant ordered a meal at a restaurant believing his companion would lend him the money to pay. He later decided to seek to avoid payment and took a opportunity to escape.
    Held: The appeal was allowed and the conviction restored. The . .

(This list may be incomplete)

Last Update: 03-Apr-16
Ref: 272831

Arquita v Minister for Immigration and Multi-cultural Affairs; 22 Dec 2000

References: [2000] FCA 1889, 106 FCR 46
Links: Austlii
Coram: Weinberg J
Federal Court of Australia – MIGRATION – refugees – application for protection visa – whether serious reasons for considering commission of serious non-political crime outside country of refuge – application of Art 1F(b) of Convention Relating to the Status of Refugees – meaning of ‘serious reasons for considering’.
This case is cited by:

  • Cited – Al-Sirri -v- Secretary of State for The Home Department SC (Bailii, [2012] UKSC 54, [2012] 3 WLR 1263, [2012] WLR(D) 333, Bailii Summary, UKSC 2009/0036, SC Summary, SC, [2013] 1 AC 745, [2013] 1 All ER 1267)
    The appellants had been refused refugee status on the ground that they were suspected of having been guilty of terrorist acts. They said that the definition of terrorism applied within the UK was wider than that in the Convention which contained the . .

Weitz and Another v Monaghan; 2 Feb 1962

References: [1962] 1 WLR 262
Coram: Lord Parker CJ, with whom Ashworth and MacKenna JJ
It was the prostitute who was guilty of soliciting by his or her physical presence. It was not enough for a written advertisement to be placed by him or her, or on their behalf, in a public place . A prostitute who displays an advertisement in a public street indicating that she is available for any one who desires her services does not thereby solicit.
Lord Parker CJ said: ‘I am quite satisfied that soliciting . . involves the physical presence of the prostitute and conduct on her part amounting to an importuning of prospective customers.’
Statutes: Street Offences Act 1959 1(1)
This case is cited by:

  • Cited – Oddy, Regina (on the Application of) -v- Bugbugs Ltd Admn (Bailii, [2003] EWHC 2865 (Admin))
    A private prosecutor appealed dismissal of his complaint that the respondent had operated an unlicensed man-powered rickshaw service. The district judge had held that it was not a taxi service. It was, under the 1869 Act a stage carriage and . .

Regina v Wakely; 7 Jun 1990

References: (1990) 93 ALR 79, (1990) 64 ALJR 321
Links: Austlii
Coram: Mason CJ, Brennan, Deane, Toohey and McHugh JJ
(High Court of Australia) The defendants appealed against their convictions, saying that their cross examinations had been improperly restricted by the judge at trial.
Held: The court considered the limit of permissible cross-examination.
This case cites:

  • Cited – Regina -v- Daya Kalia CACD ((1974) 60 Cr App R 200)
    One of the difficulties associated with granting of bail in the absence of any exceptional circumstances, is the trauma caused to the appellant being returned to prison if his appeal fails. Roskill LJ said: ‘This Court desires to say as plainly as . .
  • Cited – Mechanical and General Inventions Co. and Lehwess -v- Austin and the Austin Motor Co HL ([1935] AC 346)
    Lord Hanworth MR discussed the general nature of cross-examination, saying: ‘Cross-examination is a powerful and valuable weapon for the purpose of testing the veracity of a witness and the accuracy and completeness of his story. It is entrusted to . .
  • Cited – Regina -v- Maynard and Other CACD ((1979) 69 Cr App R 309)
    It is the duty of the trial judge to control vexatious, unfair, misleading or irrelevant cross-examination. . .

(This list may be incomplete)
This case is cited by:

  • Cited – Regina -v- Shayler CACD ([2003] EWCA Crim 2218, Bailii)
    The defendant appealed against his conviction, saying the restrictions placed upon him in conducting his defence because the fact that he had been a member of the secret services, meant that he had been unable to conduct his defence properly, with . .

(This list may be incomplete)
Last Update: 29-Feb-16 Ref: 470723

Rex v Poulton; 18 May 1932

References: (1832) 5 C & P 329, [1832] EngR 613, (1832) 5 Car & P 329, (1832) 172 ER 997
Links: Commonlii
Coram: Littledale J
In summing up in a murder trial: ‘With respect to the birth, being born must mean that the whole body is brought into the world . . Whether the child was born alive or not depends mainly on the evidence of the medical men.’
This case is cited by:

  • Cited – In Re A (Minors) (Conjoined Twins: Medical Treatment); aka In re A (Children) (Conjoined Twins: Surgical Separation) CA (Times 10-Oct-00, Bailii, [2000] EWCA Civ 254, [2001] 1 FLR 267, [2000] 4 All ER 961, [2001] Fam 147, [2001] 2 WLR 480, [2001] 9 BHRC 261, [2000] 3 FCR 577, [2001] Fam Law 18, (2001) 57 BMLR 1, [2000] Lloyd’s Rep Med 425, [2001] UKHRR 1)
    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 . .

Regina v Serva and nine others; 26 Jul 1845

References: (1846) 2 C & K 53, [1845] EngR 274, (1845) 1 Den 104, (1845) 169 ER 169, [1845] EngR 1168, (1846) 2 Car & K 53, (1845) 175 ER 22
Links: Commonlii, Commonlii
Coram: Lord Ellenborough
The court considered the meaning of the phrase ”against the peace of the King’
Held: The phrase applies to the offender: it relates to his capacity to commit the crime.
This case is cited by:

  • Cited – Regina -v- Page CMAC ([1954] 1 QB 170)
    The defendant, a corporal in the Royal Corps of Signals had been tried and convicted by a Court Martial in Egypt for the murder of an Egyptian national in an Egyptian village. The issue in the appeal was whether a Court Martial had jurisdiction . .
  • Cited – Regina -v- Abu Hamza CACD (Bailii, [2006] EWCA Crim 2918, Times 30-Nov-06, [2007] 2 WLR 226, [2007] 3 All ER 451, [2007] 1 Cr App R 27)
    The defendant had faced trial on terrorist charges. He claimed that delay and the very substantial adverse publicity had made his fair trial impossible, and that it was not an offence for a foreign national to solicit murders to be carried out . .
  • Cited – Regina -v- Adebolajo and Another CACD (Bailii, [2014] EWCA Crim 2779, [2014] WLR(D) 519, WLRD)
    The defendants had been convicted of the brutal and public murder of Fusilier Lee Rigby in London, and sentenced to whole life term for Adebolajo and 45 years for Adebowale. They now sought leave to appeal against conviction and sentence.

Rex v William Sawyer; 7 Apr 1815

References: [1815] EngR 615, (1815) 2 Car & K 101, (1815) 175 ER 41
Links: Commonlii
Under the stat. 33 Hen. 8, c. 23, a British subject was triable in this country for the murder of another British subject, committed on land within the territory of a foreign independent kingdom. In such a case, the indictment sufficiently shewed the parties to be British subjects, by stating, in the usual manner, that the deceased was in the peace of the king, and concluding against the peace of the king. Such an indictment need not conclude contra formam statuti
This case cites:

  • See Also – Rex -v William Sawyer (Commonlii, [1815] EngR 431, (1815) Russ & Ry 294, (1815) 168 ER 810)
    (Old Bailey) The defendant was a British subject. He murdered another British subject, Harriet Gaskett, in Lisbon. He was found guilty of murder. The point was taken that, as the offence had been committed abroad, the indictment was not framed in a . .

Kay v Butterworth: 1945

References: (1945) 61 TLR 452
Coram: Humphreys J
A man who became unconscious whilst driving due to the onset of a sudden illness should not be made liable at criminal law.
This case is cited by:

  • Cited – Hill -v- Baxter ([1958] 1 QB 277)
    The Court was asked whether the accused had put forward sufficient evidence on a charge of dangerous driving to justify the justices adjudging that he should be acquitted, there having been no dispute that at the time when his car collided with . .
  • Mentioned – Regina -v- Quick CACD ([1973] QB 910, Bailii, [1973] EWCA Crim 1, (1973) 137 JP 763, [1973] 3 All ER 347, (1973) 57 Cr App Rep 722, [1973] 3 WLR 26)
    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 . .

Regina v M’Phane, Popham, and Donoghue; 17 Jun 1841

References: [1841] EngR 840, (1841) Car & M 212, (1841) 174 ER 476
Links: Commonlii
Where three persons were indicted jointly for cutting and wounding, and the third of them did not come up to the spot until after one of the first two had got away, and then kicked the prosecutor while he was on the ground struggling with the other, it was held, that the two, who jointly assaulted the prosecutor and wounded him at first, might be found guilty either of the felony or of an assault only, but that the third prisoner must under the circumstances be acquitted altogether.

Regina v Stingel; HCA 1990

References: (1990) 171 CLR 312
(Australia) An infatuated man had stabbed his former girlfriend’s lover.
Held: The judge had been right to withdraw the issue of provocation from the jury. Jealousy and possessiveness should not found a defence of provocation.
This case is cited by:

  • Cited – Regina -v- Smith (Morgan James) HL (Times 04-Aug-00, House of Lords, Gazette 28-Sep-00, House of Lords, Bailii, [2000] UKHL 49, [2001] 1 AC 146, [2001] 1 Cr App R 31, [2000] 4 All ER 289, [2000] 3 WLR 654)
    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 . .
  • Cited – Weller, David Regina -v- CACD (Bailii, [2003] EWCA Crim 815, [2003] Crim LR 724)
    The defendant appealed against his conviction for murder, saying that provocation should have been found. The issue was whether or not, in the course of his summing-up, the trial judge should have left, and if so whether he had left, to the jury the . .

Regina v Young And Webber; 22 Sep 1838

References: , [1838] EngR 876, (1838) 8 Car & P 644, (1838) 173 ER 655
Links: Commonlii
Coram: Vaughan J, Alderson B
When, upon a previous arrangement, and after there has been time for the blood to cool, two persons meet with deadly weapons, and one of them is killed, the party who occasions the death is guilty of murder, and the seconds also are equally guilty, and with respect to others shewn to be present, the question is, did they give their aid and assistance by their countenance and encouragement of the principals in the contest? Mere presence will not be sufficien, but if they sustain the principals either by advice or assitance, or go to the ground for the purpose of encouraging and forwarding the unlawful conflict, although they do not say or do anything, yet if they are present, assisting and encouraging by their presence at the moment when the fatal shot is fired, they are, in law, guilty of the crime of murder.
This case is cited by:

  • Cited – Gnango, Regina -v- SC ([2012] 2 All ER 129, [2012] 2 WLR 17, [2012] 1 Cr App R 18, [2012] 1 AC 827, Bailii, [2011] UKSC 59, SC Summary, SC, UKSC 2010/0165, Bailii Summary)
    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 . .

Rex v Edmeads And Others; 4 Mar 1828

References: [1828] EngR 441, (1828) 3 Car & P 390, (1828) 172 ER 469
Links: Commonlii
Coram: Baron Vaughn
(Berkshire Assizes) an indictment charged Edmeads and others with unlawfully shooting at game keepers.
Held: The learned Baron ruled on the question of common intent, ‘that is rather a question for the Jury; but still, on this evidence, it is quite clear what the common purpose was. They all draw up in lines, and point their guns at the game-keepers, and they are all giving their countenance and assistance to the one of them who actually fires the gun. If it could be shown that either of them separated himself from the rest, and showed distinctly that he would have no hand in what they were doing, the objection would have much weight in it.’
This case is cited by:

  • Cited – Regina -v- Becerra and Cooper CACD ((1975) 62 Cr App R 212, Bailii, [1975] EWCA Crim 6)
    The defendants sought leave to appeal against their convictions for a brutal and horrific murder. Becerra suggeste dtat he had wanted to withdraw from the event before the murder took place.
    Held: The appeal failed: ‘ in the circumstances then . .

(This list may be incomplete)
Last Update: 04-Feb-16 Ref: 323205