CARIBBEAN EXAMINATIONS COUNCIL

CARIBBEAN ADVANCED PROFICIENCY EXAMINATIONS (CAPE)

PUBLIC LAW

UNIT 1 MODULE 3

Students Notes1 for Criminal Law

Prepared by Cecil A. Blazer Williams2

General Principles

What is a crime?

It is the opinion of many writers and experts in the field of criminal law that there
is no single definition that would be adequate to say what is a crime. However, it
can be said that it constitutes or consists of wrongdoing which threatens to
undermine the security of society and which cannot be left unpunished because
of its socially destructive nature. But it is not every form of wrongdoing or
antisocial conduct which constitutes a crime although the consequences may be
harmful. For example, it is established that cigarette smoking causes lung cancer
but it is not illegal. It must also be borne in mind that as society changes, acts
which might have been illegal are made legal by Parliament. For example
homosexuality was a crime in England until 1994 when homosexual conduct in
private between consenting males 18 years and above was made legal. In the
independent countries of the Commonwealth Caribbean that is not the case as
persons found indulging in such acts may be charged with buggery. Countries
which are still colonies of England are resisting legalisation.

The development of the common law through decisions of judges can make what
was considered to be legal illegal. For example, men could not be charged for
1
Students are instructed to please read ahead of classes
2
These notes are a revised version of the notes provided by the Caribbean Examinations Council
(CXC) and written by Cecil A Blazer Williams. Passages that have been copied are in quotes and
their authors are acknowledged in the footnotes (in places where the phrase “My emphasis” is
used, it should not be attributed to Cecil A Blazer Williams). Also portions of the relevant statutes
vis-à-vis the syllabus have been included. Students are warned that the sections reproduced are
extracts and should therefore not be taken as complete reproductions of any section. This
version of William’s notes has been made available (free of cost) to only the students of Montego
Bay Community College sitting the Caribbean Advanced Proficiency Examination (CAPE) – Law:
Unit One. The alterations were necessary; it was never intended to subject William’s work to
derogatory treatment. Sincerely,
Deborah Lee Shung (February 2004)

1
raping their wives. The House of Lords in England in the case of R v. R3 declared
that a husband can rape his wife if she does not consent to sexual intercourse.
This was given effect by the Criminal Justice and Public Order Act 1994 (UK).
The situation in the Commonwealth Caribbean has not been specifically ruled on
by our courts. There is much debate in the Caribbean whether the various
governments should decriminalise and finally legalise the production and use of
cannabis.

UNIT 1
MODULE 3: CRIMINAL LAW

1. CRIMINAL LIABILITY

(i) actus reus, including age of criminal responsibility and status

offences;

Analysing Criminal Offences

The analysis of criminal offences is traditionally divided into two parts namely:

(a) Conduct, which is called the actus reus and includes acts or omissions,
consequences and surrounding circumstances. These are the physical
elements.

(b) State of mind, which is called the mens rea and comprises intention,
recklessness, gross negligence and knowledge.

Not all crimes will have each of these ingredients. That is why it is important to be
familiar with the definition in the Criminal Code and the treatment of each in the
textbooks. A criminal offence is committed when the prosecution proves beyond
all reasonable doubt that the defendant has satisfied the actus reus and the
mens rea of the alleged offence. It is established law and practice that an
individual is presumed to be innocent until proved guilty. This general rule was
established in the English case of Woolmington v. Director of Public
Prosecutions4.

In Woolmington v. Director of Public Prosecutions5 the facts are the appellant

shot his wife. At first instance he was convicted of murder and was sentenced to
death. He appealed on the grounds that the judge had misdirected the jury by
telling them that he was guilty unless he could show that his wife’s death was
caused by an accident. In summing-up to the jury, the learned judge said:

3
[1991] 1 A.C. 599
4
[1935] A.C. 462; [1935] Cr. App. R. 72
5
Ibid

2
‘The killing of a human being is homicide, however he may be killed, and all homicide is
presumed to be malicious, and murder, unless the contrary appears from the circumstances of
alleviation, excuse, or justification.’6

The appellant’s appeal was unsuccessful. The Court of Criminal Appeal relied on
s. 4(1) of the Criminal Appeal Act 1907 (UK) which allows them to dismiss an
appeal, if they consider that no substantial miscarriage of justice has occurred7.

With leave from the Attorney General, the appellant was allowed to appeal to the
House of Lords. On the grounds that his appeal was based on a point of law of
exceptional public importance the House found that:

In a trial for murder the Crown must prove death as the result of a voluntary act of the prisoner
and malice of the prisoner. When evidence of death and malice has been given, the prisoner is
entitled to show by evidence or by examination of the circumstances adduced by the Crown that
the act on his part which caused death was either unintentional or provoked. If the jury [is] either
satisfied with his explanation or, upon a review of all the evidence,[is] left in reasonable doubt
whether, even if his explanation be not accepted, the act was unintentional or provoked, the
prisoner is entitled to be committed.8

Viscount Sankey L.C said that, “Throughout the web of English criminal law one
golden thread is always to be seen, that it is the duty of the prosecution to prove
the prisoner’s guilt subject to … the defence of insanity and subject also to any
statutory exception. If at the end of and on the whole of the case, there is
reasonable doubt, created by the evidence given by either the prosecution or the
prisoner, as to whether the prisoner killed the deceased with a malicious
intention9, the prosecution has not made out the case and the prisoner is
entitled to an acquittal. … When dealing with a murder case the Crown must
prove (a) death as the result of a voluntary act of the accused and (b) malice 10 of
the accused”11

Age of Criminal Responsibility

The Jamaican Position

According to the Juveniles Act 1951 s. 3 (age of criminal responsibility), it shall

be conclusively presumed that no child under the age of twelve years can be
guilty of any offence.

The English Position

6
[1935] A.C. 462, at p 472
7
Ibid at p 470 “ … even if they were of the opinion that the point raised in the appeal might be
decided in favour of the appellant”
8
Actual headnote
9
Compiler’s emphasis
10
Malice may be proved, either expressly or by implication
11
Woolmington v. Director of Public Prosecutions [1935] A.C. 462, per Viscount Sankey L. C. at
pp 481 - 482

3
“Liability of minors
For the purposes of criminal liability minors are divided into three classes as
follows:

(a) Those under ten years of age are incapable of any crime and the
presumption is irrefutable (Children & Young Persons Act 1963, s. 16)
(UK). They can however be subject to care and control proceedings in a
Youth Court.

(b) Those between 10 & 14 years

The presumption was wholly dependent on the common law was that a
minor was incapable of forming a guilty intent, but this could be rebutted
by proving ‘mischievous discretion’ i.e. knowledge that what was done
was morally or seriously wrong.

However in C v. Director of Public Prosecutions12, a Divisional Court of

Queens Bench decided that the rebuttable presumption that a minor
between the ages of 10 & 14 was in capable of committing a crime no
longer existed in English law. C, who was 12 at the time of the crime, was
convicted of interfering with a motorcycle with the intention to commit theft
and his appeal was dismissed by the Divisional Court, which also removed
the presumption.

(c) Minors 14 years and over are fully liable for crimes, but there are certain
differences as to procedure and punishment.

(d) There is a special provision in relation to sexual offences. The Sexual

Offences Act 1993 (UK) abolishes the previous presumption that a boy
under the age of 14 is incapable of sexual intercourse. This means that it
is now possible for rape cases to be brought against boys under the age
of 14 since they are no longer assumed incapable of vaginal or anal
intercourse.”13

Status Offences (Situation Offences)

In this type of offence, the actus reus does not have to be voluntary. The
occurrence of this type of offence is rare. But the law is draconian, for it is a
matter of being in the wrong place at the wrong time. The defendant need only
be present in the situation. It is of no import if he is responsible for finding himself
in the situation.

12
The Times, 30 March 1994
13
Keenan, D. (2001) Smith & Keenan’s English Law 13th Edition. Great Britain: Longman, p 620

4
Take for instance R v. Larsonneur14 where, “X, a French national, landed in
England with a French passport endorsed with words which prevented her
working in the United Kingdom. She was required to leave England and went to
Eire from where she was deported. Later, she was brought back to the United
Kingdom by the Irish police and held in custody by the English police. She was
charged with ‘being an alien to whom leave to land in the United Kingdom had
been refused, she was found in the United Kingdom’. Her appeal against
conviction was dismissed. It was held that X had been ‘found’ in the United
Kingdom (the actus reus of the offence) and the crime as charged had been
proved correctly. The circumstances of X’s re-entry to the United Kingdom were
immaterial. She was found here and was, therefore, deemed to be in the class of
persons whose landing had been prohibited by the Secretary of State, by reason
of the fact that she had violated the condition on her passport’: per Lord Hewart
CJ.”15

In Winzar v. Chief Constable of Kent16 “The police were called to remove X, who
was drunk, from the hospital corridor. He was placed in a police car stationed in
the hospital forecourt, and was later charged with being found drunk ‘on a
highway or public place’, contrary to the Licensing Act 1872 (UK), s. 12. It was
held that it sufficed to show that X had been present on the highway and was
perceived to be drunk. It mattered not that his presence on the highway was
momentary and not of his volition. The conditions of the actus reus were
satisfied.”17

_____________________

(ii) acts, consequences, and omissions

Actus reus

As stated above, the actus reus includes (1) acts (2) omissions (3)
consequences and (4) surrounding circumstances.

(1) Acts

An act is a conscious voluntary movement of the muscles.

If an accused is not aware of his actions and has no control over them then they
do not constitute acts. For example, if someone pushes him against the victim,
there would be no crime. However, the person doing the pushing would be guilty
of crimes against the accused and the victim.

14
(1933) 97 J.P. 206
15
Curzon, L.B. (1992) Criminal Law 6th Edition. Great Britain: Pitman Publishing, pp 34 - 35
16
The Times, 28 March 1983
17
Ibid

5
Where an individual is hypnotised or is sleepwalking and somebody is injured by
his actions, these actions would not be regarded as acts by the courts because
he would have lacked the necessary awareness and control. If an accused is
stung by bees whilst driving and he loses control he cannot be said to be driving.

In the case of Hill v. Baxter18 “…The defendant drove a motor-van across a road
junction at a fast speed, ignoring an illuminated “Halt” sign, and collided with a
motor-car. The van then continued for a short distance and .c. Later, in hospital,
the defendant said that he could not remember what happened” 19. He was
charged under the Road Traffic Act 1930 (UK) for dangerous driving and for
ignoring a traffic sign. “The defendant contended that he had become
unconscious as a result of being overcome by a sudden illness”. 20 At first
instance “… The justices found that the defendant must have exercised skill in
driving in order to reach the road junction, but were of the opinion that he was not
conscious of what he was doing for some little time before reaching the junction
and was not capable of forming any intention as to his manner of driving;
accordingly, they dismissed the charges”.21

On appeal it was held that the defendant’s intention was irrelevant in the
prosecution of the offence as liability is strict i.e. there is no requirement for mens
rea. The first instance decision was therefore found to be wrong in law.

However Lord Goddard did find that “… there may be cases where the
circumstances are such that the accused could not really be said to be driving at
all; for example, if he had a stroke or an epileptic fit”.22

Consequently where a defendant suffers from apoplexy and he has an attack

and somebody is struck by his hand he can raise the defence of automatism
since his action may be regarded as that of an automaton as was the case in
R v. Burgess23.

In R v. Burgess24 “The appellant was tried on a count of wounding with intent to

do grievous bodily harm, contrary to s. 18 of the Offences Against the Person Act
1861 (UK)25. His defence was that he lacked the necessary intent, in that, during
undisputed violence to the victim, he was sleep walking and suffering from non-
insane automatism. Expert medical evidence was called by the prosecution and
the defence. The judge, on the assumption that the appellant was unconscious at

18
[1958] 1 Q.B. 277; [1958] 1 All E.R. 193
19
Headnote
20
Ibid
21
Ibid
22
Ibid, at p 278
23
[1991] 2 Q.B. 92; [1991] 2 All E.R. 769
24
Ibid
25
The Jamaican equivalent is the Offences Against the Person Act 1864 s. 20 which carries a
sentence of life imprisonment with or without hard labour

6
the time of his acts, ruled that the medical evidence adduced condecerning
automatism amounted to evidence of insanity within the M’Naghten Rules and
was not merely evidence of non-insane automatism. The jury found the appellant
not guilty by reason of insanity”26. The appellant appealed.

The appeal was dismissed the judge had rightly concluded that the appellant’s
state was an abnormality or disorder which was due to an internal 27 factor.
Therefore he was insane according to the M’Naghten Rules. We will deal with the
defence of automatism below.

(2) Omissions

As a general rule, a person is not liable for what he or she does not do. However,
there are exceptions where statute and the common law make it a positive duty
to act.

(i) Statute

Parliament or the House of Assembly may impose liability for an omission. For
example, if a person is a driver of a motor vehicle and that person fails to stop
after or to report a vehicular accident in which he or she is involved, that person
commits an offence. This can be found in the Motor Vehicles and Road Traffic
Act of Caribbean countries. There are other statutes, which make it an offence in
defined circumstances to fail to act. The student should try to find relevant
examples.

(ii) The Common Law

The following are circumstances in which a common law duty to act may arise:

(a) Contractual Duty

A person may be under a positive duty to act because of his obligations under a
contract. Such a duty may be to the other party to the contract or to a third
person. The leading case is R v. Pittwood28 in which the keeper of a railway
crossing omitted to close the gate before a train came. A vehicle passed through
the open gate and attempted to cross the line. The train struck it and the driver
was killed. The keeper was found guilty of manslaughter.

(b) Duty to act by virtue of holding office

26
Headnote
27
“The distinction between the two defences is that with non-insane automatism the cause of the
automotive state must be external (for example, medication or a blow to the head), while with
insanity the cause must be internal (for example, illness or disease)” Hunt, M.(2003) A Level and
AS Level Law 2nd Edition. Great Britain: Sweet & Maxwell, p 136
28
(1902) 19 T.L.R. 37

7
A person may be under a duty to act as a result of his office or occupation. If his
conduct departs from the proper standard of care incumbent upon him, it may be
judged criminal. The case of R v. Adomako29 has become the leading case. An
anesthetist was convicted of manslaughter by gross negligence after a patient
undergoing an operation died because the tube from the patient’s ventilator
became detached and no notice was taken of it until it was too late.

Where a policeman is in charge of a prisoner and the prisoner receives an injury,

it is the duty of the policeman to ensure that he receives medical attention. If he
does not and the prisoner dies, he may be liable for manslaughter by gross
negligence.

(c) Undertaking to care for another

Where a person undertakes to care for an aged or an infirm person liability may
arise as in the case of R v. Stone and Dobinson30. They were an unmarried
couple. Stone’s middle-aged sister came to live with them. She became
incapable of looking after herself and they decided to wash her and provide her
with food. The sister deteriorated and they did little to assist her or summon
outside help. She was found dead by Dobinson. Stone and Dobinson were
convicted of manslaughter.

(d) Duty by virtue of relationship

Parents and persons in loco parentis are under a duty to care for their child. In
the case of R v. Gibbins and Proctor31 a father and his girlfriend omitted to feed
the father’s child and she starved to death. They were found guilty of murder.

(e) Duty to minimise own act

It is possible to incur criminal liability by failing to prevent or minimise the harmful

consequences of one’s own act. If the person acted positively although
innocently to create a state of affairs which might cause harm and he
subsequently becomes aware of the danger he has created but refuses to act to
avert the danger, he becomes criminally liable. The leading case is R v. Miller32.

In R v. Miller33 “The defendant, a vagrant went to live in an unoccupied house.

After returning there one night he lit a cigarette and lay down on a mattress in the
room he was using. He fell asleep before he had finished the cigarette, and it
dropped onto the mattress, setting it alight. He awoke later when the mattress
was smoldering, but did nothing to extinguish it, and merely moved to another
room. The house caught fire and damage to the value of £800 was caused. The
29
[1995] A.C. 171; [1994] All E.R. 79
30
[1977] Q.B. 354; 64 Cr. App. R. 186
31
(1918) 13 Cr. App. R. 134.
32
[1983] 2 A.C. 161; [1983] 1 All E.R. 715
33
Ibid

8
defendant was charged with arson.”34 The defendant was convicted and
appealed.

The Court of Appeal had to determine whether the actus reus of arson could be
committed by a defendant who accidentally started a fire, and who failed to
extinguish it or prevent damage to property.
The Court of Appeal found that such a defendant would be guilty. The court held
that the defendant would be guilty:

“ … when he did become aware that the events in question had happened as a result of
his own act, he did not try to prevent or reduce the risk by his own efforts or if necessary
by summoning the fire brigade and the reason why he did not was either because he
had not given any thought to the possibility of there being any such risk or because
having recognised that there was some risk involved he had decided not to try to prevent
or reduce it …”35

(3) Consequences

Most crimes require proof of a prescribed consequence, which must be caused

by the act. For example, for an act to be called murder the victim must die within
a year and a day. In criminal damage the consequence must be that the property
is destroyed or damaged.

If a person tries to bring about the proscribed consequence but fails to do so, he
may still be found guilty of the attempt. It may not be possible to bring about the
prescribed consequence but guilt can still result as in the case of R v. Shivpuri36.
Here, the defendant was arrested while carrying a package that contained a
powdered substance, more of this substance was found at his home. At several
police interviews he admitted having drugs, and under caution he personally
typed a confession stating that he very deeply suspected that the substance was
heroin.

But analysis showed that the substance was merely vegetable material akin to
snuff. The defendant was charged with attempting to knowingly harbouring and
dealing in a controlled drug, namely heroin.

At first instance the defendant denied making any admissions about drugs. He
denied that the typed statement amounted to a confession. The defendant
claimed he knew that the substance was not heroin because he had tested it. He
was found guilty on both counts.

The defendant appealed against his conviction on the ground that, because the
substance found in his possession was not a controlled drug, he could not be
guilty of attempting to concern himself in either dealing or harbouring a controlled
34
Headnote
35
Ibid
36
[1987] A.C. 1; [1986] 2 W.L.R. 988

9
drug. The Court of Appeal dismissed his appeal. He appealed to the House of
Lords.

His appeal was again dismissed. Their Lordships found that it was not necessary
to prove that the defendant knew what category of controlled drug he was
dealing in. As long as the defendant believed that he was handling controlled
drugs, the belief was sufficient to convict him.

The act of the person must be sufficiently closely linked to justify criminal
prosecution. A person may set in motion a chain of events, which end in the
prescribed or forbidden consequence, but there may be an intervening act
contributing to the causation of that consequence. The intervening act is said to
‘break the chain of causation’.

Chain of causation

“Where the act has to cause a consequence for the accused to be guilty, it is
necessary to show the link between the defendant’s act and the consequence. In
most cases there is no problem over this. In an assault occasioning actual bodily
harm, the act may be a punch to the face of the victim and the injury a broken
nose. In this example there is a clear link or chain of causation between the two.
Problems arise where there is an intervening act 37 contributing to that
consequence. This can occur:”38

i. where the victim takes avoiding action;

ii. where another person intervenes; and

iii. where there has been improper medical treatment.

(a) Taking evasive action

A person who is being attacked by another may try to escape his attacker and
suffer serious injury or death. In the case of R v. Lewis39 “ … a wife broke her
legs when she jumped from a third floor flat because she feared violence from
her husband who was shouting threats and trying to break down the door to her
room. The husband was convicted of causing grievous bodily harm to her.”40

However “ … the defendant is not guilty if the action taken by the victim was
unreasonable or too far removed from the original attack, as where, for example,
three months after an assault the victim suffering from depression as a result of

37
Cases of intervening acts
38
Martin, J. (2004) GCSE Law 2nd Edition. Great Britain: Hodder & Stoughton, p 98
39
[1970] Crim. L.R. 647
40
Ibid

10
the assault commits suicide.”41 This was decided in the case of R v. Williams42.
Before an attacker or an assailant can be held liable two requirements must be
satisfied that:

i. a reasonable and responsible man in the assailant’s shoes would have

foreseen the deceased’s conduct; and

ii. the quality of the unlawful act, must be such that all sober and reasonable
people would inevitably recognise that it would subject the other person to
some other harm resulting there from, albeit not serious harm. The second
requirement applies only in fatal cases.

(b) Reasonable reaction by a third party or parties to the defendant’s threats

In R v. Pagett43 the defendant armed himself with a shotgun and held a pregnant
girl hostage. He held her as a shield and fired at the police who returned fire
striking and killing the girl. The defendant was charged with murder and
convicted of manslaughter. He argued in his appeal that it was the police who
shot the girl and that this constituted a novus actus interventiens44, which broke
the causal link between his act and the girl’s death. His appeal was dismissed.

(c) Improper medical treatment

“If the defendant starts off a chain of events, which ends in the forbidden
consequence, can he be guilty if a third person has intervened and done
something which leads to that consequence? This type of problem can occur in
cases where there is poor medical treatment, which contributes to death. In such
cases the courts are very reluctant to conclude that the intervening medical
treatment broke the chain of causation. The leading case is R v. Smith45 where a
soldier was stabbed in a barrack-room brawl. His medical treatment was
described by the Court of Appeal as ‘thoroughly bad’. The wound had penetrated
a lung and on the way to the medical center he was dropped twice and then
given artificial respiration, which aggravated the wound. There was evidence that
the poor medical treatment had affected his chance of recovery by as much as
75 per cent. The Court of Appeal held the defendant’s stabbing was still the

41
Ibid
42
[1992] 2 All E.R. 183; [1992] 1 W.L.R. 380
43
(1983) 76 Cr. App. R. 279; [1983] Crim. L.R. 394
44
novus actus interveniens. [A new act intervening.] The intervention of human activity between
the defendant’s act and its consequences. The doctrine that A is not liable for damage done to B
if the chain of causation between A’s act and B’s damage is broken by the intervention of the act
of a third person. B’s damage is then said to be too remote. If, however, the intervening act is a
direct or foreseeable consequence of the defendant’s act, then the doctrine does not apply, nor
does it where the intervening actor is not fully responsible, or if his act is intentionally procured by
the defendant – Osborn’s Concise Law Dictionary 9th Edition (hereafter referred to as ‘Osborn’s’)
45
[1959] 2 Q.B. 35

11
cause of death and that the defendant was guilty of murder. The Lord Chief
Justice, Lord Parker said:

It seems to the court that if at the time of death the original wound is still an operating cause and
a substantial cause46, then the death can properly be said to be the result of the wound, all be it
that some other cause of death is also operating.

In R v. Cheshire47 the victim was shot twice and his treatment included the
insertion of the tube to help him breathe. This tube caused a rare complication
that lead to the victim’s death. Even though there was evidence that the original
wounds were no longer life threatening and it was the failure of the medical staff
to recognise and deal with the complication that had directly lead to the death,
the Court of Appeal held that the defendant was guilty of murder. It was his act of
shooting that had caused the victim to need treatment. The medical staff when
they put the tube in was only trying to repair the harm done. The court said that it
would only be in the most extraordinary or unusual case that such treatment
could be said to be so independent of the acts of the accused that it could in law
be regarded as the cause of the victim’s death to the exclusion of the accused’s
acts.

The same line of reasoning was seen in R v. Blaue48 where the victim was a
Jehovah’s Witness. She had been stabbed, but, because of her religion, refused
a blood transfusion, which would have saved her life. Blaue, her attacker was
found guilty of her murder since the wound he had caused was an ‘operating and
substantial cause’ of her death.

In R v. Malcherek49 it was decided that switching off a life support machine did
not break the chain of causation. The original injury was still an ‘operating and
substantial cause of death’.”

_____________________

(iii) mens rea

Mens rea

Mens rea loosely translated means ‘guilty mind’. It refers to a number of states of
mind. Each state of mind has a link to an ingredient of the actus reus. Only,
together can the mens rea and the actus reus give rise to criminal liability. There
are certain offences which statute defines in such a way as not requiring mens
rea. These cases are referred to as crimes of strict liability.

46
My emphasis
47
[1991] 3 All E.R. 670; [1991] 1 W.L.R. 844
48
[1975] 3 All E.R. 446; [1975] 1 W.L.R. 816
49
[1981] 2 All E.R. 422; [1981] 1 W.L.R. 690

12
Categorisation of mens rea

Mens rea can be categorised for the sake of convenience into the following:

i. intention;

ii. recklessness;

iii. negligence; and

iv. blameless inadvertence.

In most crimes, the liability for the crime depends on the ability of the prosecution
to prove culpability50. The prosecution has to show that at the time the defendant
brought about the actus reus, he did so with a certain state of mind – the mens
rea. As you already know a very simplistic definition of mens rea is ‘guilty mind’.
But a more accurate meaning of the phrase is ‘criminal intention’, i.e. an intention
to do an act that is an offence by statute or common law, or recklessness as to
the consequences of that act. It is the mental element of the crime. But mens
rea should not be confused with motive. Motive is not an element of the crime.

The actus reus of most crimes consists of different elements. In trials, the
prosecution will have to establish the mens rea of each element. For instance,
the crime of rape will be committed if the defendant has sex with the plaintiff,
knowing that he does not have her consent or is being reckless as to whether
she is consenting or not. The mens rea of the crime of rape is the intention of the
defendant, to have sexual intercourse while either knowing that he does not
have the plaintiff’s consent, or being reckless as to whether the plaintiff is
consenting or not.

Another example is theft. The mens rea required for the crime of theft is the
defendant’s dishonest appropriation of the plaintiff’s property, plus the intention
of permanently depriving the plaintiff of that property.

Mens rea, motive and intention

Do not confuse these terms, each of them has its own meaning. Intention is the
aim of the act; of which motive is the impetus and mens rea shapes the form of
the actus reus. So imagine D51 wants to take revenge on P52, revenge will be his
motive. Imagine also that D wants to make sure that P suffers pain – herein lies
the intention of the act. Having got to this stage D launches his attack on P and
the latter suffers injury – this is the stage when the mens rea culminates into the

50
Culpability is the state of mind required by the definition of the offence
51
As in ‘the defendant’
52
As in ‘the plaintiff’

13
actus reus. A crime has occurred and it will be possible to charge D under the
Offences Against the Person Act 1861 (UK).

Motive is usually irrelevant to the question of criminal liability. No matter how

selfless and merciful an act it will not negate criminal liability. Take for instance
the case of R v. Gray53.

Gray killed his son. He gave him an overdose of drugs and gassed him while he
slept. Gray was a loving and devoted father, and did his best by his son. His son
suffered from a very severe form of cancer. The condition was so acute, he could
not bear the weight of a sheet, and he was in constant pain.

Even though pity had motivated Gray to kill his son, he was convicted of
manslaughter. There could be no other ruling; the defendant had caused the
actus reus of an unlawful homicide with the necessary mens rea of murder or
manslaughter.

Motive is the reason for doing something – Gray acted because of love and
compassion.

Intention is a deliberate action or deliberately bringing about a consequence.

Gray deliberately gave his son an overdose and gassed him, to bring about his
death.

_____________________

(iv) specific intention

Crimes of specific intent are crimes where only direct or oblique intent will suffice.

In crimes of basic intent54, the mens rea can be either intention or recklessness.
A direct intent is where the defendant has the direct intention or desire of making
the consequence happen. For example, the defendant wishes to kill the victim
and with that in mind he takes his cutlass and chops him about the neck, killing
him. However, there may be consequences, which may not be desired but is a
natural and probable consequence of the defendant’s act. This is referred to as
oblique intent.

Foresight of consequences

“The main rule about foresight of consequences is that it is not the same as
intention, but it can be evidence of intention.”55 To decide if there is evidence

53
The Times, October 7, 1965
54
Or what is called recklessness
55
Op cit, Martin, p 99

14
of intention, a jury “… must be sure that death or serious bodily harm was a
virtual certainty as a result of the defendant’s action. They must also be sure that
the defendant appreciated that this was the case.” 56 Take for example, homicide,
if a jury “… decided that it was virtually certain that people would be killed or
seriously injured and that the defendant realised this, there is57 evidence on
which the jury can find that the defendant had the specific intention for murder.” 58

The matter of foresight of consequences has been dealt with in cases such as
R v. Moloney59 , R v. Hancock and Shankland60 and R v. Nedrick61.

Courts cannot infer intention merely because the result is the natural and
probable result of the action taken. Consider the following cases.

The tragic events leading to the case R v. Moloney62 started at a drunken family
party. Moloney’s stepfather challenged him to see who could load a shotgun
faster. Moloney won but his stepfather taunted him that he was too cowardly to
pull the trigger. In response Moloney pulled the trigger, the blast knocked off his
stepfather’s head.

Moloney claimed that he had not aimed the shotgun, but had only pulled the
trigger. The magistrate’s court would not commit him for murder charges and
substituted it for a charge of manslaughter.

At Crown Court the charge for murder was reinstated – the defendant was found
guilty. The case was appealed all the way to the House of Lords.

The House of Lords63 found that, to convict a defendant of murder, proof had to
be shown that he intended to kill or had intended to cause grievous bodily harm.

Therefore foresight of death or grievous bodily harm and intention are not the
same things. Also foreseeability of the acts results is not adequate mens rea in
itself.

Consequently in murder, intention has to be isolated from recklessness.

This issue arose in R v. Hancock and Shankland64 Hancock and Shankland were
striking miners. They killed a taxi driver who was taking another miner to work.
56
Ibid
57
My emphasis
58
Ibid
59
[1985] A.C. 905, [1985] 1 All E.R. 1025
60
[1986] A.C. 455, [1986] 1 All E.R. 641
61
[1986] 1 W.L.R. 1025
62
[1985] 1 A.C. 905
63
“The judgment in Moloney, far from clarifying the law, created its own problems and surfaced in
…” Hankcock and Shankland” Allen, M.J. (1997) Elliot & Woods Cases and Materials on Criminal
Law 7th Edition. Great Britain: Sweet & Mawell, p 97
64
[1986] 1 A.C. 455

15
They pushed a concrete post and a concrete block from a bridge onto the taxi
that was driving on the road below.

Hancock and Shankland entered pleas of guilty to charges of manslaughter. But

the court of first instance rejected the charge and pleas. Instead they were tried
for murder. “Their defence was that, they had intended to block the road or
frighten but they had no intention to kill or cause grievous bodily harm” 65; they
were convicted.

Convictions of manslaughter were substituted at the Court of Appeal, and the

Crown appealed to the House of Lords. The Crown’s appeal was dismissed.
Their Lordships found that the probability, however high, of a consequence
occurring is only a factor to be considered when determining whether the
accused intended to bring it about.
In other words, no matter how likely it is that the consequence of an action will
occur; the high degree of foreseeability cannot be equated to intention. Take for
instance the authority of R v. Nedrick66 . Here “The appellant had a grudge
against a woman. He poured paraffin through the letterbox and on to the front
door of her house and ignited it without giving warning. A child died in the
ensuing fire. The appellant admitted starting the fire but claimed he only wished
to frighten the woman and did not want anyone to die. He was convicted of
murder following a direction to the jury which equated foresight with intention.” 67
The defendant appealed.

The defendant’s appeal was allowed, his conviction for murder was quashed,
and a conviction of manslaughter substituted. Again the court found that the
inevitability that the defendant’s actions will result in death or serious harm,
cannot be used to infer that the defendant intended that result.

The Court of Appeal in Nedrick set out guidelines judges could use to direct
juries. The jury would have to determine the following:

i. how probable was the consequence, which resulted from the defendant’s
voluntary act?

ii. did he foresee that consequence?

If he did, but thought that the risk was only slight then it may be easy for the jury
to conclude that he did not intend to bring about the result.

On the other hand, if the jury was satisfied that at the material time the defendant
recognised that death or serious harm would be virtually certain (barring some
unforeseen intervention) to result from his act, then that is a fact from which they

65
Op cit, Allen, p 97
66
[1986] 1 W.L.R. 1025
67
Ibid

16
may find it easy to infer that he intended to kill or do serious bodily harm, even
though he may not have had any desire to achieve that result.

The jury must be directed that they are not entitled to infer the necessary
intention unless they feel sure that the death or serious bodily harm was a virtual
certainty (barring some unforeseen intervention) as a result of the defendant’s
actions and the defendant appreciated that such was the case.

_____________________

(v) recklessness

Recklessness is the taking of an unjustifiable risk; there are two levels of risk
taking. It is a very controversial matter. The controversy centres on whether the
proof of the required foresight should be subjective or objective. Subjective
foresight and objective foresight are the two levels of risk taking.

Subjective recklessness is also known as ‘Cunningham recklessness’, it is the

higher of the two risk taking levels. It occurs “… when the defendant realises that
there is a risk involved, but still carries on his conduct.” 68 Cunningham
recklessness applies to offences against the person.

Another name for objective recklessness is ‘Caldwell recklessness’. This is the

lower level of risk taking. It occurs “ … when the defendant fails to think about the
possibility of there being any risk, though an ordinary careful person would
realise that there was a risk involved.” 69 Caldwell recklessness applies only to
crimes of criminal damage.

Subjective recklessness

The leading case on subjective recklessness is R v. Cunningham70. The

defendant was charged under s. 23 of the Offences Against the Persons Act
1861 (UK) with “maliciously71 administering a noxious thing so as to endanger
life”. He had gone into the basement of a building and ripped a gas meter from
the wall in order to remove the money it contained. He ruptured the gas supply
pipes with the result that gas escaped and seeped into the basement of an
adjoining property occupied by a woman and her husband. The court declared
that malice required either:

i. an actual intention to do a particular kind of harm that in fact was done;

and

68
Op cit, Martin, p 99
69
Ibid
70
[1957] 2 Q.B. 396; [1957] 2 All E.R. 412
71
My emphasis

17
ii. recklessness as to whether such harm should occur or not (i.e. the
accused has foreseen that the particular kind of harm may occur yet
nevertheless has gone on to take the risk of it).

The court declared that malice72 is neither limited nor does it require any ill will
towards the person injured.

Objective recklessness

The thought process of a reasonable man is all-important in object recklessness.

Would he have acted as the defendant? In R v. Caldwell73 ‘recklessness’ was
given a wider definition than in R v. Cunningham74

In R v. Caldwell75, the defendant “In pursuit of a grievance which he thought he

had against the proprietor of a hotel … set fire to the hotel. There were ten
guests living there at the time. The fire was discovered before any serious
damage occurred. The appeal was mainly concerned with his defence of
intoxication … but the House took the opportunity to consider the meaning of
recklessness in the Criminal Damage Act 1971 (UK).”76

Lord Diplock stated that “ … in my opinion a person charged with an offence

under s. 1(1) of the 1971 Act (Criminal Damage Act (UK)) is ‘reckless as to
whether or not any property is destroyed or damaged’ if:

i. he does an act which in fact creates an obvious risk that property will be
destroyed or damaged; and

ii. when he does the act he either has not given any thought to the possibility
of there being any such risk or has recognised that there was some risk
involved and has none the less gone on to do it.”

Objective recklessness does not apply to offences against the person.

Consider, for example R v. Savage, R v. Parmenter77, here, “Savage intentionally

threw beer at Beal, the pint glass left her hand, broke and cut Beal. She was
convicted of unlawful wounding, the jury having been directed that if they were
sure she deliberately threw the beer but unintentionally let go of the glass, so that
Beal was wounded, they could convict of unlawful wounding. On appeal, the
Court of Appeal quashed the conviction under s. 20, Offences against the Person

72
Bryne J, declared that in the court’s opinion “ … the word “maliciously” in a statutory crime
postulates foresight of consequences …”
73
[1981] 1 All E.R. 961
74
[1957] 2 Q.B. 396; [1957] 2 ALL E.R. 412
75
[1982] A.C. 341
76
Op cit, Allen, pp 118 – 119
77
[1991] 4 All E.R. 698

18
Act 1861 (UK) but substituted a conviction under s. 47. She appealed to the
House of Lords.
Parmenter was convicted of inflicting grievous bodily harm, contrary to s. 20, on
his baby son. His rough handling caused the breaking of the child’s arm and leg
bones. His case was that he did not realise that his handling of the child would
cause injury. The jury were directed that they could convict if they were sure that
Parmenter should have foreseen some physical harm, albeit minor, not
necessarily grievous bodily harm. On appeal, the Court of Appeal allowed his
appeal, but declined to substitute a conviction under s. 4778. The Crown appealed
to the House of Lords. Both appeals were heard together.”79

Savage, is a seminal case that asked and answered several legal questions. The
question to be considered in regards to objective recklessness was formulated by
McCowan L.J. as follows:

In order to establish an offence under s. 20 of the 1861 Act, must the prosecution prove that the
defendant actually foresaw that his act would cause harm, or is it sufficient to prove that he ought
so to have foreseen?

In other words, must the prosecution prove subjective recklessness – that the
defendant foresaw the consequences of his act; or is it enough to prove objective
recklessness i.e. that the defendant should have foreseen the consequences of
his act?

It was concluded by their Lordships that the prosecution must prove that the
defendant foresaw that his act would cause harm – subjective recklessness. A
statutory offence that may be committed ‘maliciously’ requires the prosecution to
show that it was committed intentionally or recklessly, using the latter term in the
subjective sense. Therefore it would not be sufficient to prove objective
recklessness because showing that an offence was committed maliciously,
requires more proof of mens rea, than that the defendant ought to have foreseen
the consequences of his act.

The appeal of Savage was dismissed; the appeal of was Parmenter allowed in
part and conviction of assault occasioning actual bodily harm substituted.
In the case of R v. Lawrence80 , “ … decided at the same time as Caldwell, the
House of Lords considered the meaning of ‘recklessly’ in the context of causing
death by reckless driving … Their Lordships decided that the Caldwell test of
recklessness should be applied to reckless driving.”81 Proving intention, in the
subjective sense was not required.

78
Assault occasioning actual bodily harm
79
Op cit, Allen, pp 620 - 621
80
[1981] 2 W.L.R. 524; [1982] A.C. 510
81
Op cit, Allen, pp 124 - 124

19
The principle that intention in the subjective sense is not required was applied in
Chief Constable of Avon and Somerset Constabulary v. Shimmen 82. “The
defendant and four friends were outside a shop one evening joking and larking
about. One of the friends pushed the defendant who started flailing his arms and
legs without making contact with that friend. He was warned that he might one
day hurt someone but assured the friend he had everything under control and
made as if to strike the plate glass window with his foot. His foot made contact
with the window and broke it. The defendant was charged with criminal damage
contrary to section 1(1) of the Criminal Damage Act 1971 (UK). It was conceded
before the justices that he had had no intention of breaking the window but the
prosecutor argued that he had acted recklessly. The defendant contended that
he had satisfied himself that there was no risk, because of his muscular control
and skill in the martial arts, and was, in the circumstances, not reckless. The
justices were of [the] opinion that an obvious and serious risk was created by the
defendant's conduct; but the inference that he was in one or other of the states of
mind to constitute the offence could be displaced in his case by virtue of his
evidence relating to his expertise in the science of martial arts; that he could be
acquitted if he considered whether there was a risk and determined that there
was no risk based on his faith in his ability to demonstrate his skill and muscular
control acquired and developed over a number of years; that he perceived there
could be a risk of damage, and after considering such risk, concluded that no
damage would result. They therefore dismissed the charge.
On appeal by the prosecutor by way of case stated.

Held: that on the findings of the justices the defendant did recognise the risk
involved if he did not take adequate precautions, although he had thought he
had minimised that risk and that therefore no damage would result.
Nevertheless, the justices were wrong in coming to the conclusion that that
was not recklessness by reason of what the defendant had put forward.
Accordingly, the appeal would be allowed and the case remitted to the justices
with a direction to convict.”83

________________________

(vi) coincidence of actus reus and mens rea

The actus reus and mens rea must coincide for there to be criminal liability.
Sometimes the courts have been prepared to hold that the actus reus consisted
of a continuing act and that the defendant is liable if he formed the requisite
mens rea at some point during the continuing act.

82
(1986) 84 Cr. App. R. 345
83
Headnote

20
In Thabo Meli v. R84 the defendants, after getting their victim intoxicated, hit him
around the head intending to kill him. They only succeeded in knocking him
unconscious, but believing him to be dead they threw his body over a cliff. He
died from the fall and exposure and not from the beating. It was sufficient for the
prosecution to establish that at some time during the chain of events the
defendants had acted with the requisite mens rea for murder.

This approach was followed in Fagan v. Metropolitan Police Commissioner85

where the accused accidentally drove over the foot of a policeman. When he
realised what he had done, he refused to move the car. The court found that
there had been a coincidence of actus reus and mens rea sufficient to establish
criminal liability.

The reason for this is that even though when the act had not been committed the
defendant did not have the necessary mens rea. The mens rea was formed while
the act was still in progress.

______________________

(vii) transferred malice

If the defendant with the mens rea of a particular crime does an act, which
causes the actus reus of the same crime, he is guilty even though the result, in
some respects, is an unintended one.

In R v. Latimer86 the defendant quarreled with C in a pub. The defendant aimed a

blow at C with his belt. The belt recoiled and hit someone else, the victim who
was severely injured. The jury found that the injury to the victim was purely
accidental, but they found that the blow was unlawful and malicious. The
defendant was liable for the malicious wounding of the victim.

However, if the defendant with the mens rea of a particular crime does an act,
which causes the actus reus of another crime, he will not be liable under the
doctrine of transferred malice.

But in R v. Pembliton87 the defendant was a part of a group of people who were
fighting outside a pub called the Grand Turk. He threw a stone at the people he
was fighting. The stone went over their heads and broke the glass window of the
pub. The defendant was indicted for unlawfully and maliciously committing
damage. His conviction for malicious damage was quashed on the basis that his

84
[1954] 1 All E.R. 373
85
[1968] 3 W.L.R. 1120
86
[1986] 17 Q.B. 359
87
(1874) L.R 2 C.C.R. 119

21
intention to assault another person could not be used as mens rea for the
damage that he had caused to the window.

_____________________

(viii) strict liability

Blameless inadvertence

A person may reasonably fail to foresee a consequence that follows from his act
or reasonably fails to consider the possibility of the existence of a circumstance.
However, blameless behaviour can attract criminal sanctions in the case of
crimes of strict liability.

Strict liability

An offence of strict liability is one that does not require proof of fault. Such an
offence is usually the creation of statute. The purpose of having strict liability
offences is to ensure public safety. Some areas of strict liability offences are:

i. dangerous drugs offences;

ii. road traffic offences; and

iii. offences related to the protection of the environment against pollution.

“Strict liability crimes are those where the defendant will be guilty because he did
the actus reus. There is no need to prove any mens rea.”88 It should be noted
however that such statutes rarely expressly rule out mens rea, (or rule out mens
rea by necessary implication). Therefore in cases where an Act of Parliament
addresses a strict liability offence, but is silent on the point of mens rea, the court
will act in favour of the presumption of mens rea.89 The best-known statement
of the presumption was given in Sherras v. De Rutzen by Wright J90. He said:

There is a presumption that mens rea, or evil intention, or knowledge of the

wrongfulness of the act, is an essential ingredient in every offence; but that the
presumption is liable to be displaced either by the words of the statute creating the
offence or by the subject matter with which it deals, and both must be considered.

88
Op cit, Martin, p 100
89
However, J.C. Smith writes “When strict liability has been imposed, it has usually been because
the judges considered it necessary or desirable in the public interest – exercising a legislative
function.” Smith, J.C. (2002) Smith & Hogan Criminal Law 10th Edition. Great Britain: Butterworths
LexisNexis, p 119
90
[1895] 1 Q. B. 918 at 921

22
The case of Sweet v. Parsley91 illustrates the operation of the doctrine of strict
liability as well as the presumption of mens rea. “Miss Sweet, a teacher, let
rooms in a farmhouse to students. She did not reside in the farmhouse but
retained one room for her own use for occasional overnight stays when she
visited to collect the rent and check the property. After the police had searched
the premises, finding evidence that cannabis had been smoked there, Miss
Sweet was convicted by magistrates of being concerned in the management of
premises which were used for the purpose of smoking cannabis, contrary to
section 5(b) of the Dangerous Drugs Act 1965 (UK). The magistrates found that
Miss Sweet did not exercise any control over her tenants and that she had no
knowledge that the house was being used for the purpose of smoking cannabis.
Her appeal to the Division Court was dismissed and she appealed to the House
of Lords.”92 Her appeal was allowed. Miss Sweet’s appeal was allowed because
she did not know that her premises were being used to smoke cannabis. Lord
Reid said:

‘… whenever a section is silent as to mens rea there is a presumption that, in order to give effect
to the will of Parliament, we must read in words appropriate to require mens rea;’ and ‘… it is a
universal principle that if a penal provision is reasonably capable of two interpretations, that
interpretation which is most favourable to the accused must be adopted.’93

Drug offences

Caribbean countries have all legislated against the production, possession and
use of dangerous drugs. For example in Jamaica we have the Dangerous Drugs
Act 1948. Consider s. 7C under which it is an offence to be found in possession
of ganja. The section says:

Dangerous Drugs Act 1948

7C. Possession of ganja

7C. Every person who has in his possession any ganja shall be guilty of an offence and –

(a) on conviction before a Circuit Court, shall be sentenced to a fine or to

imprisonment for a term not exceeding five years or to both such fine and or
imprisonment; or

(b) on summary conviction before a Resident Magistrate, shall be liable –

91
[1969] 1 All E.R. 347
92
Op cit, Allen, p 184
93
[1969] 1 All E.R. 347 per Lord Reid at pp 349 - 350

23
 (i) to a fine not exceeding one hundred dollars for each ounce of ganja which the
Resident Magistrate is satisfied is the subject matter of the offence, so, however,
that any such fine shall not exceed fifteen thousand dollars; or

(ii) to imprisonment for a term not exceeding three years; or

(iii) to both such fine and imprisonment

Road traffic offences

Some road traffic offences where strict liability is imposed are of a regulatory,
quasi-criminal nature while others are more serious. Consider for instance s. 33
of the Road Traffic Act 1938.

Road Traffic Act 1938

33. Racing and speed trials

33. (1) Any person who promotes or takes part in a race or trial of speed between
motor vehicles on a road shall be guilty of an offence.

(2) A person convicted of an offence under this section shall, unless the court for
special reasons thinks fit to order otherwise and without prejudice to the power of the
court to order a longer period of disqualification, be disqualified for a period of
twelve months from the date of the conviction for holding or obtaining a driver’s licence.
…

The above strict liability offence is a regulatory, quasi-criminal offence. The

penalty is disqualification of the offender’s driver’s licence. When weighed
against the possible harm that speeding can cause, this penalty is very light.

Serious strict liability offences under the Road Traffic Act 1938 carry weightier
consequences. For instance:
Road Traffic Act 1938

34. Driving motor vehicles under influence of drink or drugs

34. (1) Any person who when driving or attempting to drive or when in charge of a motor
vehicle on a road or other public place is under the influence of drink or a drug to
such extent as to be incapable of having proper control of the vehicle,
shall be liable -

(a) on conviction to a penalty not exceeding twenty thousand dollars and in default of
payment to imprisonment with or without hard labour for a term not exceeding
four months or to imprisonment, with or without hard labour, for a term not exceeding
four months, and in the case of a second subsequent conviction to imprisonment, with
or without hard labour, for a term not exceeding six months;

24
 (b) on conviction on indictment to imprisonment, with or without hard labour, for a
term not exceeding six months.

(2) A person convicted of an offence under this section shall, unless the court for
special reasons thinks fit to order otherwise and without prejudice to the power of the
court to order a longer period of disqualification, be disqualified for a period of
twelve months from the date of the conviction for holding or obtaining a licence.

Here the offender faces the possibility of a ‘true’ criminal sanction –

imprisonment. Imprisonment can be ordered in default of payment (s. 34(1)(a)) or
as the original sentence (s. 34(1)(b)). The sentences are in proportion to the
measure of risk the offender exposed the public to.

Pollution

The concern about the environment worldwide has been promoting governments
to legislate in order to safeguard the health and welfare generally of society. The
case of Alphacell Ltd v. Woodward94 is an interesting case, which should be
examined by the student.

The student should ask himself the following questions:

i. should people who are completely blameless be convicted?

ii. should someone who has an excellent record of conduct be convicted of

an offence and acquire a criminal record?
iii. is statute protecting that which should not be labeled as criminal?

In Alphacell Ltd v. Woodward95 the House of Lords had to consider the appeal of
a company that had been found guilty of polluting a river under the Rivers
(Prevention of Pollution) Act 1951 (UK). Under the Act they would be guilty if they
‘caused’ the river to be polluted.

The House of Lords had to determine whether a person who did not know that
the polluting matter was entering the stream and had not been negligent in any
relevant respect could commit the offence of causing the polluting matter to enter
the river. The defendants had been diligent in maintaining the settling tank that
they pumped the effluent into. But despite their efforts, the pumps still got
blocked up and it over-flowed. The Act made it an offence ‘to cause knowingly,
permit to enter a stream any poisonous, noxious or polluting matter”. The
outcome of the case hinged on the word ‘cause’.

94
[1972] A.C. 824
95
Ibid

25
The House of Lords dismissed the appeal even though they believed that the
defendants did not intentionally or negligently cause the pollution.

It is necessary to remember (risking repetition) that courts will look at the statute
and will only decide that the offence is a strict liability offence if there is no
suggestion in the wording that mens rea is required. Again, Lord Reid’s words in
Sweet v. Parsley96 can be relied on for authority. He said:

‘In the absence of a clear indication in the Act that an offence is intended to be an absolute
offence it is necessary to go outside the Act and examine all relevant circumstances in order to
establish that this must have been the intention of Parliament. I say “must have been” because it
is a universal principle that if the penal provision is reasonably capable of two interpretations, that
interpretation which is most favorable to the accused must be adopted’97

______________________

(ix) crimes of negligence

Negligence consists of a falling below the standard of the reasonable man, and
either doing something he would not do, or not doing something which he would
do.

The main crime based on negligence is manslaughter. The failure of the

defendant has to be gross. In the case of R v. Adomako98 mentioned above the
conduct of the anesthetist had fallen so far below the standard required of a
reasonable man that he was convicted of manslaughter by gross negligence.

___________________________________________

2. OFFENCES AGAINST THE PERSON

In Jamaica, offences such as assault, rape and murder are punishable under the
Offences against the Person Act 1864 (‘the Act’).

(i) murder

Murder (or homicide as it is called in the Act) is the unlawful killing of a human
aforethought so that the victim dies within a year and day. This definition is a
common law definition; the Act does not provide one. The section dealing with

96
[1969] 1 All E.R. 347
97
Ibid, per Lord Reid pp 349 – 350
98
[1995] A.C. 171; [1994] All E.R. 79

26
homicide99 starts with a definition of capital murder and further on the sentence
for non-capital murder. The definition of capital murder is detailed.

Offences against the Person Act 1864

Homicide

2. Capital murders

2. (1) Subject to subsection (2), murder committed in the following the following
circumstances is capital murder, that is to say –

(a) the murder of –

(i) a member of the security forces acting in the execution of his duties or of
a person assisting a member so acting;

(ii) a correctional officer acting in the execution of his duties or of a person

assisting a correctional officer so acting;

(iii) a judicial officer acting in the execution of his duties: or

(iv) any person acting in the execution of his duties, being a person who, for
the purpose of carrying out those duties, is vested under the provisions of
any law in force for the time being with the same powers, authorities and
privileges as are given by law to members of the Jamaica
Constabulary Force, or the murder of any such member of the security
forces, correctional officer, judicial officer or person for any reason directly
attributable to the nature of his occupation;
(b) the murder of any person for any reason directly attributable to –

(i) the status of that person as a witness or party in a pending or concluded

civil cause or matter or in any criminal proceedings; or

(ii) the service or past service of that person as a juror in any criminal trial;

(c) the murder of a Justice of the Peace acting in the execution of his judicial
functions;

(d) any murder committed by a person in the course or furtherance of –

(i) robbery;

(ii) burglary or housebreaking;

(iii) arson in relation to a dwelling house; or

(iv) any sexual offence;

(e) any murder committed pursuant to an arrangement whereby money or anything

of value –

99
Sections 2 - 12

27
 (i) passes or is intended to pass from one person to another or to a third
party at the request or direction of that other person; or

(ii) is promised by one person to another or to be a third person at the

request or direction of that other person,

As consideration for that other person causing or assisting in causing the death
of any person or counseling or procuring any person to do any act causing or
assisting in causing that death;

(f) any murder committed by a person in the course or furtherance of an act of

terrorism, that is to say, an act involving the use of violence by that person which,
by reason of its nature and extent, is calculated to create a state of fear in the public
or any section of the public.

(2) If, in the case of any murder referred to in subsection (1) (not being a murder
referred to in paragraph (e) of that subsection), two or more persons are guilty of
that murder, it shall be capital murder in the case of any of them who by his own act
caused the death of, or inflicted or attempted to inflict grievous bodily harm on, the
person murdered, or who himself used violence on that person in the course or
furtherance of an attack on that person; but the murder shall not be capital murder in
the case of any other of the person guilty of it.

(3) Murder not falling within subsection (1) is non-capital murder.

(4) Where it is alleged that a person accused of murder is guilty of capital murder,
the offence shall be charged as capital murder in the indictment.

(5) In this section –

“correctional officer” has the same meanings as in the Correction Act;

“judicial officer” means –

(a) a Judge of the Supreme Court or the Court of Appeal, the Master in
Chambers or any person for the time being performing the
functions of a Judge of the Supreme Court or Court of Appeal or of the
Master of Chambers;

(b) the Registrar or Deputy Registrar of the Supreme Court, the Revenue
Court or the Court of Appeal or any person for the time being performing the
functions of Registrar or Deputy Registrar;

(c) a Resident Magistrate or any person for the time being performing the
functions of a Resident Magistrate;

(d) a person employed in a court’s office who carries out prosecution of

offences or in the Office of the Director of Public Prosecutions or engaged
to carry out functions on behalf of the Director of Public Prosecutions;

“member of the security forces” means a member of –

(a) the Jamaica Constabulary Force;

(b) the Jamaica Defence Force to the extent that such member has been
assigned to act in aid of the Police;

28
 (c) the Island Special Constabulary Force;

(d) the Rural Police.

3. Sentence of death

3. Every person who convicted of capital murder shall be sentenced to death and upon
every such conviction the court shall pronounce sentence of death, and the same may be
carried into execution as heretofore has been the practice; and every person so convicted or
sentenced pursuant to subsection (1A), shall, after sentence, be confined in some safe
place within the prison, apart from all other prisoners.

Where by virtue of this section a person is sentenced to death, the form of the sentence
shall be to the effect only that he is to “suffer death in the manner authorised by law”

(1A) Subject to subsection (5) of section 3B, a person who is convicted of non-capital
murder shall be sentenced to death if before that conviction he has –

(a) whether before or after the 14th October, 1992, been convicted in Jamaica of
another murder done on a different occasion; or

(b) been convicted of another murder done on the same occasion.

…

Non-capital murder as seen above is any murder which is not contained within
subsection 1 (s. 2(3)). Section 3A of the Act which addresses non-capital murder
is therefore succinct. It should be pointed out that even though the maximum
sentence is life imprisonment the Court is given discretion to specify another
period not less than 7 years.

Offences against the Persons Act 1864

3A. Life imprisonment for non-capital murder.

3A. (1) Subject to the provisions of this Act, every person who is convicted of non-capital
murder shall be sentenced to imprisonment for life.

(2) Notwithstanding the provisions of section 6 of the Parole Act, on sentencing any
person convicted of non-capital murder to imprisonment for life, the Court
may specify the period, being longer than seven years, which that person
should serve before becoming eligible for parole.

Having dealt with the statutory provisions for murder, let us now turn to the case
law.

Actus reus of murder

29
The important elements of the actus reus of murder are:

(i) The defendant must have caused the death of a human being or a person
in being. The foetus in the womb of a pregnant woman is not included.
However, if a child is born alive and then dies of the injuries inflicted when
it was in the womb, this can be murder. A cause must be both operative
and substantial. It needs to be the sole or the principle cause of death. It is
enough that it contributed significantly to the death. There must not be any
intervening act, which breaks the chain of causation.

Students, should note that the cases relevant to the topic ‘chain of causation’ i.e.
intervening acts are also relevant to the topic of murder for example, cases such
as R v. Blaue100.

What if no body is found? The evidence afforded by the accused is sufficient. In

the case Eversley Thompson v R101, Thompson, the defendant was convicted for
the murder of a girl. Her body was never found, but he made a confession to the
police saying that he had thrown her into the sea.

The fact of death is also provable by circumstantial evidence. Take for instance
the case of R v. Onufrejcczyk102. The case established that murder may be
proved by circumstantial evidence that leaves open no other rational hypothesis
than murder. The facts of R v. Onufrejcczyk103are that the Polish appellant and
the victim owned a farm in partnership. The appellant needed money and the
victim wanted to dissolve the partnership.
The last person other than the appellant, to see the victim, was the blacksmith
whom he had visited to have his horse shod on 14 December 1953. The victim
disappeared, and his body was not found. But minute amounts of his blood were
found on the walls and the ceiling of the kitchen of the house that the appellant
and the victim shared.

The prosecution was able to make its case because of the appellant’s
improbable explanations and inconsistencies when accounting for the victim’s
disappearance. Furthermore the appellant had also tried to persuade the
blacksmith to say that the victim had taken the horse to be shod on 17 December
1953. He was charged for murder.

It was held that murder can be proved by circumstantial evidence that leads only
to that one conclusion of fact, although no body is found.

100
[1975] 3 All E.R. 446; [1975] 1 W.L.R. 816
101
(1995) (unreported) St. Vincent and the Grenadines
102
[1955] 2 Q.B. 388
103
Ibid

30
(ii) The death of the victim must occur within a year and a day of the
defendant’s conduct.104

In R v. Dyson105 the defendant was indicted106 for the manslaughter of his infant
child. On 13 November 1906 he fractured the child’s skull, for this he was
sentenced to four months imprisonment. On 29 December 1907 he beat the
child, causing severe bruising to the child’s face and head; he was sentenced to
six months imprisonment. On 17 February 1908 the child was admitted to
hospital for traumatic meningitis, but died on 5 March 1908. At the time of
admission, the external marks of the 29 December 1907 beating had
disappeared. But medical evidence showed that the fracture of the skull in so
young a child would necessarily cause destruction of the brain tissue and
eventually death, even though it was possible for the child to live with the fracture
for some years. It was established that the fracture was the main cause of the
child’s death, but that subsequent violence would accelerate the death. It was
argued on behalf of Dyson that the child had died solely from the fracture of the
skull. The Crown contended that the subsequent beating accelerated death.

At first instance, the judge directed the jury that if they were satisfied that Dyson
caused the death either by the fracture or the subsequent beating; they had to
find him guilty. He was found guilty and he appealed on the ground of
misdirection. The misdirection was that the jury was told that they could consider
the injury that had been inflicted more than a year and a day before the date of
death. His appeal was allowed.
Mens rea of murder

Many of the points above in relation to mens rea are relevant to murder.

For there to be malice aforethought the defendant must have the intention to:

i. kill; or

ii. cause grievous bodily harm.

This was established in the case of R v. Moloney107. Murder is an offence of

specific intent. Foresight that death or serious injury is virtually certain to result is
not intention but can form evidence from which intention can be inferred.

104
This common law rule has been abolished in the United Kingdom by the Law Reform (Year
and Day Rule) Act 1996. As long as an act can be shown to be the cause of death, it may now be
murder, regardless of the time that has elapsed. But if the injury sustained which caused the
death occurred more than three years before the death, the Act requires the consent of the
Attorney General before prosecution is commenced
105
[1908] 2 K.B. 454
106
Formerly charged with an indictable offence. indictment. A formal document setting out the
charges against the accused – Osborn’s
107
[1985] A.C. 905

31
A person will fulfil the requirements of the crime of murder if:

i. he intends to kill and does kill; or

ii. he intends to cause grievous bodily harm and the victim dies.

In Jaganauth v. R 108(St. Lucia) the appellant and the deceased had been
involved in a very serious fight. In order to save himself the appellant twice
stabbed at the hand of the deceased who was trying to choke him to death. On
his second attempt the appellant missed and instead stabbed the deceased in
his side, the knife penetrated the diaphragm and the liver. The cause of death
was haemorrhaging from the ruptured liver.

It is reported that the judge’s direction gave the jury the impression that ‘intention’
meant an intention to cause bodily harm, and not an intention to cause death.
The appellant appealed inter alia on the ground that the judge had “… failed to
leave an alternative defence of accidental death to the jury, that is, that the
accused did not intend to kill but merely to wound the deceased man on the right
arm when choked, and that on the second attempt, he missed and caught the
deceased man on the right beneath the ribs.”109

Held: the act of the defendant in stabbing the deceased was a voluntary one. The
fact that he stabbed in an area he had not meant to, or that the wound caused a
more serious result than he intended did not make the act of wounding or death,
an accident in the eyes of the law. Therefore, the defence of accidental death
was not available on the facts of the case.110

Attempted murder is just as punishable as actual murder. In Jamaica attempted

murder is dealt with in five sections 111 of the Act which identify four specific types
of attempted murder and one ‘catch-all’ provision. They are as follows.

Offences against the Persons Act 1864

Attempts to Murder

13. Administering poison, or wounding with intent to murder

13. Whosoever shall administer to, or cause to be administered to, or to be taken by any
person, any poison or other destructive thing, or shall, by any means whatsoever, wound,
or cause any grievous bodily harm to any person, with intent, in any of the cases
aforesaid, to commit murder, shall be guilty of felony, and, being convicted thereof, shall be
liable to be imprisoned for life, with or without hard labour.

108
(1967) 2 W.I.R. 315
109
Headnote
110
However the court found that there had been other misdirections, so they concluded that it was
not safe for the conviction to stand. Consequently the conviction of manslaughter was substituted
111
Sections 13 – 17

32
14. Destroying or damaging building with intent to murder

14. Whosoever, by the explosion of gunpowder or other explosive substance, shall destroy or
damage any building, with intent to commit murder shall be guilty of felony, and being
convicted thereof, shall be liable to be imprisoned for life, with or without hard labour.

15. Setting fire to ship, etc., with intent to murder

15. Whosoever shall set fire to any ship or vessel or any part thereof, or any part of the
tackle, apparel, or furniture thereof, or any goods or chattels being therein, or shall cast away or
destroy, or attempt to destroy, any ship or vessel, with intent in any of such cases to
commit murder, shall be guilty of felony, and being convicted thereof, shall be liable to be
imprisoned for life, with or without hard labour.

16. Attempting to administer poison, etc., with intent to murder

16. Whosoever shall attempt to administer to, or shall attempt to cause to be administered, or
be taken by any person, any poison or other destructive thing, or shall shoot at any person,
or shall by drawing a trigger, or in any other matter, attempt to discharge any kind of loaded
arms at any person, with intent, in any of the cases aforesaid, to commit murder, shall,
whether any bodily injury be effected or not, be guilty of felony, and being convicted
thereof, shall be liable to be imprisoned for life, with or without hard labour.

17. By other means attempting to commit murder

17. Whosoever shall, by any means other than those specified in any of the preceding
sections of this Act, attempt to commit murder, shall be guilty of felony, and, being convicted
thereof shall be liable to be imprisoned for life, with or without hard labour.

_____________________

(ii) manslaughter: voluntary and involuntary

Manslaughter is a crime of unlawful homicide. The Offences against the Person

Act 1864 provides that:

Offences against the Person Act 1864

9. Manslaughter

9. Whosoever shall be convicted of manslaughter shall be liable to be imprisoned for life,

with or without hard labour, or to pay such fine as the court shall award in addition to or without
any such other discretionary punishment as aforesaid.

It is customary to divide manslaughter into two main categories:

33
i. voluntary manslaughter; and

ii. involuntary manslaughter.

Voluntary manslaughter

Voluntary manslaughter covers the situation where the defendant has the
necessary mens rea and actus reus for murder i.e. there is malice aforethought,
but certain mitigating factors reduce his liability to manslaughter. It used to be the
case that, at common law, voluntary manslaughter occurred only when there was
provocation. But the Offences against the Persons Act 1864 changed that. Two
further categories have now been added. Consequently the mitigating factors
which reduces the defendant’s crime of unlawfully killing another to a less serious
grade of criminal homicide are provocation, diminished responsibility, and killing
in pursuance of a suicide pact.

Therefore voluntary manslaughter will occur where:

i. murder is reduced to manslaughter on the ground of provocation;

ii. murder is reduced to manslaughter on the ground of diminished

responsibility; or

iii. murder is reduced to manslaughter because the defendant acted in

pursuance of a suicide pact.

(i) Provocation

It is the responsibility of a jury to determine whether a defendant acted in the way

he did, as a result of provocation, and that any reasonable man would have
reacted in the same way. This duty is conferred on a jury by the Act.

Offences against the Person Act 1864

6. Provocation

6. Where on a charge murder there is evidence on which the jury can find that the person
charged was provoked (whether by things done or by things said or by both together) to
lose his self-control, the question whether the provocation was enough to make a reasonable
man do as he did shall be left to be determined by the jury; and in determining that question
the jury shall take into account everything both done and said according to the effect which,
in their opinion, it would have on a reasonable man.

34
Provocation was defined in the case of R v. Duffy112 by Devlin J as “… some act
or series of acts done which would cause in any reasonable person, and actually
causes in the accused a sudden and temporary loss of self-control, rendering the
accused so subject to passion as to make him or her for the moment not master
of his mind”. The act or statement does not have to be directed to the defendant.
It can be a member of the family.

For instance in R v. Pearson113 “… M. and W. killed their violent and tyrannical

father. M. had been subjected to violence and abuse for eight years while W. was
away from home. W. returned home to protect M. from further violence
becoming, himself, the target of the violence. It was held by the Court of Appeal
that the whole history of violence against M was relevant to W’s defence of
provocation.”114

If the provocation is self-induced it is much more difficult to rely on provocation as

a defence. But it may be available depending on the circumstances.
Consider R v. Johnson115 here, “The appellant and the deceased were drinking at
a night club. The deceased’s female companion taunted the appellant who then
made threats of violence to her and thereafter to the deceased himself. The
appellant made to leave the club but was followed by the deceased who poured
beer over him. The deceased removed his jacket and pinned the appellant
against a wall whereupon the deceased’s female companion attacked him
punching his head and pulling his hair. The appellant drew a knife and lunged at
the deceased stabbing him once in the chest. The appellant claimed he feared
being “glassed” and had acted in self-defence. The judge ruled that the
provocation was self-induced and refused to direct the jury on this issue. The
appellant was convicted of murder and appealed.”116

On appeal the verdict of murder was set aside and a conviction of manslaughter
was substituted. The Court of Appeal ruled that the defence of provocation
should have been left to the jury.

Cumulative provocation

A buildup of provocative acts over a period of time can give rise to a successful
defence of provocation. In R v. Ahluwalia117 it was decided that a sudden loss of
self-control may be triggered even by a minor incident if the defendant had
endured abuse over a period, on a “last straw” basis. This is what is called the
“slow burn” in post-traumatic stress syndrome or Battered Woman Syndrome.

112
[1949] 1 All E.R. 932
113
[1992] Crim. L. R. 193
114
Op cit, Allen, p 506
115
[1989] 1 W.L.R 740
116
Op cit, Allen, p 521
117
[1992] 4 All E.R. 889

35
In R v. Ahluwalia118 the question to be answered was whether a sudden loss of
control is a prerequisite to establishing provocation.

The defendant was an Asian woman who had lived for years in an abusive
arranged marriage. She was abused verbally and physically. Her husband also
conducted an adulterous affair, about which he teased her. On the night the
appellant grievously harmed her husband, they had argued. He went to bed, after
promising that he would beat her the next morning. After he had fallen asleep,
she poured petrol over him and set him alight. He suffered severe burns and
subsequently died.

At her trial at first instance, the appellant submitted to the court, that she had
acted under provocation. But the trial judge directed the jury to remember that
the defence was only available to a defendant who suffered a sudden and
temporary loss of self-control.

Based on this direction the appellant was convicted of murder. She appealed on
the grounds that the judge had made an error when he directed the jury to look
for evidence of sudden loss of control. She contended that the jury should have
been directed to consider the fact that she was suffering from ‘battered woman
syndrome’, and that this should have been used to assess how a reasonable
married Asian woman, would have reacted.

The appeal was allowed, the conviction quashed and a re-trial ordered. The
evidence now available to the Court of Appeal showed that she may have had a
defence in diminished responsibility. Therefore the re-trial was granted so that
the defence could be fully ventilated.

The defence of provocation was also applied in R v. Humphries119. The case

involved a young prostitute, the accused, who was immature for her age. She
had several psychological problems. These mental problems manifested
themselves in the accused’s practice of self-mutilation.

She lived with the deceased, who was a drug dealer. He teased and threatened
her continually. One day he teased the accused saying that she was not making
a good job of killing herself. The accused responded by stabbing him, he was
killed instantly.

She was convicted of murder. But her appeal was allowed, and the murder
conviction substituted for one of manslaughter. It was found that the trial judge
should have directed the jury about the relevance of the accused’s history of

118
Ibid
119
[1995] N.L.J. 1032

36
“‘attention-seeking’, self-mutilation, immaturity and other psychological problems
in the context of provocation”120. But compare R v. Thornton121.

In R v. Thornton122 the defendant was unable to rely on the defence of

provocation because there was evidence, that although a wife had been recently
threatened by her husband, she had regained self control by the time she killed
him. The bottom line is the defendant must have lost self-control, on account of
the provocation.

In the Caribbean, courts are very conservative about provocation, particularly the
legal position of verbal provocation. In Hosein v. R123 the Court of Appeal of
Trinidad and Tobago said words had to be extreme and exceptional before they
were considered to be provocative. But in Hamilton v. R124, the Court of Appeal of
the Eastern Caribbean States found that mere words can never amount to
provocation.

The Trinidadian case of Hosein v. R125 determined inter alia that words should be
extreme and exceptional in character before they are considered as provocative.
The appellant killed his wife. They had lived in a turbulent 25 year marriage that
had produced 14 children. After an argument, the wife returned to her mother’s
house. The appellant went there to ask whether she was coming home. She
refused; he became angry and chopped her in the neck twice. The appellant later
alleged that the deceased had said that she had found a better man and was not
returning to him.

It was held that the words were not extreme and exceptional in character, and
were therefore not provocative. The appellant’s appeal was dismissed, and his
sentence and conviction confirmed.

The position in St. Vincent and the Grenadines is more absolute as is illustrated
by the case of Hamilton v. R126 . In this case the headnote reads, “In St. Vincent
and the Grenadines, no words or gestures, however … provoking, will
themselves constitute provocation sufficient to reduce homicide to manslaughter,
if the killing is effected with a deadly weapon, or an intention to do the deceased
some grievous bodily harm, is otherwise manifested. Thus a confession of
adultery without more would not constitute provocation, nor would a confession
of unfaithfulness to a common law union.”

120
Heap, B. (1996) A’ Level Textbook - General Principles of English Law 6th Edition. Great
Britain: HLT Publication, p 338
121
(1996) 96 Cr. App. R. 112
122
Ibid
123
(1970) 17 W.I.R. 417
124
(1984) 33 W.I.R. 122
125
(1970) 17 W.I.R. 417
126
(1984) 33 W.I.R. 122

37
Here, Robotham J.A. explained that the law had been modified in the UK, by an
Act of Parliament rather than judicial pronouncement. The Homicide Act 1957
(UK) changed the entrenched common law position that mere words could never
amount to provocation (s. 3). A similar law has been enacted in Trinidad and
Tobago, Barbados and Jamaica.

The reasonable person

The court is not only concerned with whether the defendant was provoked but
also how the reasonable person would have reacted.

At the time of the crime, in Director of Public Prosecutions v. Camplin127, the

defendant was fifteen years old. He killed a middle-aged man with a heavy
kitchen pan. The defendant alleged that the man had committed a sexual offence
against him. The deceased was alleged to have laughed at the defendant after
the act, so that the defendant overcome with shame lost his self-control and
attacked the deceased.

At first instance the defence asked the judge to instruct the jury to consider the
effect of the provocation on a boy of only fifteen. “The judge rejected this, and
directed that the appropriate test was the effect of provocation on a reasonable
man, not on a reasonable boy”128. The defendant was convicted of murder.

The defendant appealed. The Court of Appeal allowed his appeal and substituted
a verdict of manslaughter. The Court of Appeal had directed the jury to judge the
defendant as a ‘reasonable man of tender years’.

The Director of Public Prosecutions appealed. The House of Lords dismissed the
Director of Public Prosecutions’ appeal, but they did not follow the ruling of the
Court of Appeal. They said that the trial judge was wrong in disregarding the age
of the defendant.

The House of Lords held that a reasonable person should be regarded by the
jury “as a person having the power of self-control to be expected of an ordinary
person of the sex and age of the accused’s characteristics as they think would
affect the gravity of the provocation to him; and that the question is not merely
whether such a person would in the circumstances be provoked to lose his self
control but would also react to the provocation as the accused did”.

(ii) Diminished responsibility

A person who would be guilty of murder, if at the time of his act was suffering
from such abnormality of the mind that it impaired his mental responsibility for his
acts, will not be found guilty of murder. Abnormality of the mind means a state of

127
[1978] 2 All E.R. 168
128
Op Cit, Curzon, p 168

38
mind so different from that of ordinary human beings that the reasonable man
would term it abnormal. The accused will not be acquitted altogether, but instead
will be found guilty of manslaughter.

Offences against the Person Act 1864

5. Persons suffering from diminished responsibility.

5. (1) Where a person kills or is a party to the killing of another, he shall not be
convicted of murder if he was suffering from such abnormality of mind (whether
arising from a condition of arrested or retarded development of mind or any
inherent causes or induced by disease or injury) as substantially impaired
his mental responsibility for his acts and omissions in doing or being a party to the
killing.

(2) On a charge of murder, it shall be for the defence to prove that the person
charged is by virtue of this section not liable to be convicted of murder.

(3) A person who but for this section would be liable, whether as principle or as
accessory, to be convicted of murder shall be liable instead to be
convicted of manslaughter.

(4) The fact that one party to a killing is by virtue of this section not liable to be
convicted of murder shall not affect the question whether the killing amounted to
murder in the case of any other party to it.

In R v. Byrne129 the accused strangled a young woman because of extreme

violent perverted urges which he found impossible to control. After he killed her
he viciously mutilated her body. At first instance the jury was directed that if a
person found it difficult or was unable to control himself i.e. he did not have the
will-power to control his physical acts, it could not be said that he suffered an
abnormality of the mind that impaired his mental responsibilities. This direction
was held to be wrong by the Court of Criminal Appeal who ruled that Byrne’s
conviction was to be quashed.

The Court found that Byrne’s inability to control himself had to be viewed as an
abnormality of the mind because he had been experiencing these urges from an
early age. Evidence was submitted that these impulses were stronger than the
normal impulse or urge of sex, and that Byrne found it very difficult or even
impossible to resist them. It was also submitted that when he killed his victim he
had done so under such an impulse or urge. In view of this evidence the Court
held that it was wrong to say that Byrne did not suffer from an abnormality of the
mind. Lord Parker C.J. said:130
129
[1960] 2 Q.B. 396
130
Ibid at p 403. JC Smith states that Byrne introduced the defence of ‘irresistible impulse’ to the
law (only to murder) by way of diminished responsibility (Smith, JC. (2002) Smith & Hogan
Criminal Law 10th Edition. Great Britain: LexisNexis Butterworths Tolley, p 234)

39
“Abnormality of mind”, which has to be contrasted with the time-honoured expression in the
M’Naghten Rules, “defect of reason”, means a state of mind so different from that of ordinary
human beings that the reasonable man would term it abnormal. It appears to us to be wide
enough to cover the mind’s activities in all its aspects, not only the perception of physical acts and
matters and the ability to form a rational judgment whether an act is right or wrong, but also the
ability to exercise will-power to control physical acts in accordance with that rational judgment.

The Court held that for the defence of diminished responsibility to succeed the
defendant must show that:

(a) he was suffering from an abnormality of the mind; and

(b) such abnormality of mind -

(i) arose from a condition of arrested or retarded development of mind

or any inherent causes as was induced by disease or injury; and

(ii) was such as substantially impaired his mental responsibility for his
acts in doing or being a party to the killing.

R v. Mark Williams131 The defences of provocation and diminished responsibility

were successfully argued132.

Walton v. R133 shows that temporary abnormalities caused by emotions such as

hate or jealousy are excluded. This case was appealed to the Privy Council, by
the appellant on the ground inter alia that the jury should have been bound to
accept that un-contradicted medical evidence confirming his abnormality of the
mind established his defence of diminished responsibility and that the trial judge
should have directed them accordingly.
Two medical practitioners and a clinical psychologist gave evidence that the
appellant had suffered an abnormality of the mind when he committed the
crimes. The appellant had collected his girlfriend and her mother from the races.
His girlfriend got him to stop the car because he was ‘acting funny’. She flagged
down a car and entered it with her mother. The appellant did know the driver or
the other passenger. He approached the car, spoke to the driver and then fired
two shots. The driver was wounded and the passenger, who was sixteen, died.
The appellant struggled with his girlfriend but gave up and drove away. He later
gave himself up to the police. At first instance the jury returned a verdict of guilty
of murder.

131
(1997) (unreported) (St. Vincent and the Grenadines)
132
The Norman Manley Law Library does not currently have a hard copy of this case. I am trying
to get a copy printed from their data base
133
(1997) 29 W.I.R. 29

40
The Privy Council disagreed with the grounds of appeal, stating that the jury did
not have to accept as conclusive, the medical opinion “… that the appellant’s
mental condition satisfied the statutory definition of diminished responsibility …”

If the abnormality is caused only by intoxication it will be excluded from the

defence of diminished responsibility. In R v. Gitten134, at the time of his crimes the
accused was suffering from depression for which he was receiving medical
treatment. When he killed his wife and raped his stepdaughter he was under the
influence of drugs and alcohol. The jury was instructed not to take his intoxication
into consideration. They could only consider his depression. However, alcoholism
has not been absolutely ruled out as an abnormality of the mind, consider R v.
Tandy 135.

It was found in R v. Tandy136 that it was admissible to consider an abnormality

due to disease or injury caused by the effects of drink or due to intoxication
where the drinking was irresistible or involuntary. The appellant was an alcoholic.
One day she drank nine-tenths of a bottle of vodka and strangled her 11 year old
daughter. She pleaded diminished responsibility. The judge directed the jury that,
“… if they concluded that she [had] voluntarily taken her first drink of the day, she
could not claim that the resultant abnormality of mind was due to the disease of
alcoholism. The appellant was convicted of murder and appealed” 137. She
appealed on the grounds that the jury had been misdirected.

The Court of Appeal found that the defence of diminished responsibility due to an
abnormality of the mind caused by alcoholism would be validated by the Court if
the craving for alcohol was so severe it would render the accused’s use of the
substance, involuntary. The defendant’s alcoholism was not of this nature. Her
appeal was dismissed.

(iii) Suicide pact

Our Offences against the Person Act 1864 is derived from the English Offences
against the Person Act 1861 which in many instances codified the common law.
In England it used to be a common law felony for a sane person of the age of
majority138 to commit suicide or kill himself in the process of trying to kill another –
it was regarded as self-murder. Being dead, the offender would be beyond the
laws of men, but his guilt resulted in the forfeiture of his property. However if the
suicide attempt failed

Involuntary manslaughter
134
[1984] 3 All E.R. 252
135
[1989] 1 All E.R. 267
136
[1989] 1 All E.R. 267
137
Op cit, Allen, p 533
138
At that time, the age of majority was 21 years old

41
Involuntary manslaughter is committed where a death is unlawfully caused by the
defendant without the necessary mens rea for murder. In other words the
defendant killed without malice aforethought, but still with the required fault
element. The fault element required for involuntary manslaughter is either an
unlawful and dangerous act, or an omission which was grossly negligent or
reckless. Consequently there are two kinds of involuntary manslaughter. They
are:

(i) constructive or unlawful manslaughter; and

(ii) manslaughter by gross negligence or recklessness.

(i) Constructive Manslaughter

The defendant must have:

1. committed an unlawful act139;

2. the act was dangerous in that a reasonable person would have realised it
created a risk of injury: and

3. the act was the cause of death. The defendant need not foresee the risk of
death nor need it be reasonably foreseeable.

In R v. Church140 for instance, the defendant knocked out a woman and unable to
revive her, threw her in a river believing her to be dead. She was in fact alive but
she subsequently drowned. The court held that it was not necessary that the
defendant himself should have realised the risk, only that ordinary sober and
reasonable people would have realised the risk of some harm.

What happens in a situation where there is a game being played and someone
dies from an injury caused by another person? In lawful sport, force and injury
can be justified on the basis of conduct within the rules of the game. Force
outside the rules constitutes an offence and can give rise to manslaughter if the
victim dies.

The reasonable correction or chastisement of a child by parents or others in loco

parentis is lawful at common law. However, if the defendant’s conduct towards
the child goes beyond reasonable correction such conduct may well be unlawful.

This was the finding in R v. Mackie141. The defendant was convicted of the
manslaughter of a boy aged three, to whom he was in loco parentis, by putting

139
In the nature of an assault
140
[1966] 1 Q.B. 59
141
(1973) Crim. L.R. 438

42
him in fear of excessive punishment so that he ran away and fell downstairs,
dislocating his neck.

Consider also R v. Lamb142, here it was held that an unlawful act had to be in the
nature of an assault. An assault involves the element of fear of force, either
actual or apprehended. Where this is absent the defendant may be acquitted.
As a joke the defendant pointed a revolver at the deceased, who was his friend.
The defendant knew that the revolver had two live rounds, but that neither was
opposite the barrel. So he pulled the trigger.

The gun fired and the defendant killed his friend. The defendant did not know that
the chamber rotated automatically, before firing. The appellant was convicted of
manslaughter and appealed against this. His appeal was allowed. The Court of
Appeal held that the trial judge had been wrong in taking the view that simply
pointing the revolver and pulling the trigger was something which could of itself
be unlawful, even if there was no attempt to alarm or intent to injure.

For the act to be unlawful, it must at least be a technical assault. The reasonable
person will be imbued with knowledge of the victim. This is the reason why in R
v. Watson143 two burglars were convicted inter alia for manslaughter when all they
had intended to do was rob a house.

Here D and E entered a house to rob it. The house was owned by an eighty-
seven year old man, Mr. Moyler, who lived by himself. They did not know this,
nor did they know that he suffered from a serious heart condition. Mr. Moyler
surprised them, and they verbally abused him and then left without taking
anything. Ninety minutes later Mr. Moyler died. D and E were convicted of
manslaughter and appealed. They contended that they should not have been
convicted of manslaughter because they could not have known that Mr. Moyler
was an even more vulnerable victim than ordinary.

It was held that all sober and reasonable persons would see that the burglary
created a risk of some physical harm occurring to the victim. It was also held that
the law will imbue ‘the reasonable person’ with knowledge about his victim. In
this case, the knowledge that the defendants’ were imbued with was that gained
through the burglarious trespass, i.e. their realisation that Mr. Moyler was frail.

The court will not consider what the defendant did not know about certain facts at
the time the crime occurs.

(ii) Manslaughter by gross negligence

142
[1967] 2 Q.B. 981; [1967] 2 All E.R. 1282
143
[1989] 2 All E.R. 1865

43
We have mentioned this matter and the case of R v Adomako144 above. The
guiding principles are set out in that case as a five-stage test. They are:

(1) The ordinary principles of the law of negligence apply to determine

whether the defendant was in breach of a duty of care towards the victim.

(2) On the establishment of such breach of duty whether it caused the death
of the victim.
(3) If so whether it should be characterised as gross negligence and therefore
a crime.

(4) This will depend on the seriousness of the breach of duty committed by
the defendant in all the circumstances in which the defendant was placed
when it occurred.

(5) The jury will have to consider whether the extent to which the defendant’s
conduct departed from the proper standard of care incumbent upon him
involving as it must have done a risk of death to the said patient, was such
that it should be judged criminal.

______________________

(iii) assault

Assault and Battery

As assault is any act by which D, intentionally or recklessly 145, causes P to apprehend immediate
and unlawful personal violence. A battery is any act by which D, intentionally or recklessly, inflicts
unlawful violence upon P.146

At common law, assault and battery were separate crimes. Now assault is a
statutory crime, it is legislated on in the Offences against the Person Act 1864 in
sections 34 – 43. As is the case with murder and manslaughter, the Act does not
give a general definition of the offence. Therefore reliance on the common law for
a definition remains. But sections 34 147, 35148, 38149 & 40150 delineate very specific
situations where assault will occur. For instance under s. 34 as assault will occur
when a clergyman is obstructed from performing his duties. It will also be an
assault to hinder a seaman from working at his trade (s. 37). The sentences differ
in each instance.151

144
[1995] A.C. 171; [1994] All E.R. 79
145
Venna [1976] Q.B. 421; [1975] 3 All E.R. 788; Savage [1992] 1 A.C. 699
146
Rolfe (1952) 36 Cr. App. Rep. 4
147
Obstructing clergyman in the performance of his duties
148
Assaulting magistrate when preserving wreck
149
Using violence to deter person from buying and selling
150
Aggravated assaults on women or children

44
However of the ten sections of the Act that deals with assault, the specific term
‘battery’ is only appears in three. In sections 41 & 42 battery is dealt with in a
procedural context. Only in s. 40 is it described as an offence. Section 40 covers
aggravated assault or battery on women and children and is punishable by a
prison term not exceeding six months with or without hard labour; or a fine not
exceeding two thousand dollars (together with costs). The court is also able to
‘bound over’152 the defendant for a period not exceeding six months from the
expiration of the sentence. So even though there is not a similar s. 39 for battery,
the offence is also regulated by statute. And even though the term ‘battery is
hardly used in the ‘assault sections” the offence of intentionally and unlawfully
touching a person, is otherwise described. 153 Instead of simply saying ‘assault
and battery’ the defendant is said to:

i. strike154;

ii. use violence155;

iii. arrest156;

iv. resist157;

v. use force158;

vi. or beat159.

Assault

151
In the former is a misdemeanor that carries a sentence of not more than two years with or
without hard labour. The latter is a summary offence, the sentence is a term not exceeding three
months with or without hard labour
152
“Frequently, a court may impose a binding over on an offender. Such an order may be one of
two types, both of wish involve the offender signing a bond to be of good behaviour for a specified
time. [We will on consider the first]
The first type of bond is one where the offender is bound over for a specified period (usually
not exceeding three years) to keep the peace and be of good behaviour. The bond is a
recognisance in a specific sum which may be protected with sureties. It is usual to ask the
offender if he consents to being bound over, but in the absence of any assertion by the defendant
to the contrary, this will be assumed: R v. Central Criminal Court ex p Boulding [1984] 2 W.L.R.
321.” Seetahal, D.S. (2001) Commonwealth Caribbean Criminal Practice and Procedure. Great
Britain: Cavendish Publishing Ltd, p 434
153
J.C. Smith comments on this in the English context, he says “Sometimes the term ‘assault’ is
used in statutes to mean ‘assault and battery’ but on other occasions both words are used. There
is a deplorable inconsistency in the statutory terminology.” Ibid fn 89 , p 412
154
Sections 34 & 35
155
Sections 37 & 38
156
Section 34
157
Section 36
158
Section 37
159
Sections 37 – 39

45
An assault is an act by which the defendant intentionally or recklessly causes the
complainant to apprehend immediate personal violence (what is usually referred
to as ‘common assault’)160. Take for instance the case of R v. Kimber161 in which
the defendant committed a sexual assault against the victim. The court had to
decide whether an honest belief in consent constituted a defence to the charge of
indecent assault. The defendant was convicted because by his own admission,
he “was not really interested in Betty’s” (the victim’s) “feelings at all”. An assault
will become battery if force is applied without consent. Common assault is a
summary offence.
Offences against the Person Act 1864
…

39. Summary jurisdiction to try common assaults

39. Where any person shall unlawfully assault or beat any other person, two Justices, upon
complaint by or on behalf of the party aggrieved, may hear and determine such offence,
and the offender shall, upon summary conviction, be liable to imprisonment with or without
hard labour, for a term not exceeding two months, or else shall forfeit and pay such fine not
exceeding, together with costs (if ordered) the sum one thousand dollars; and if such fine
as shall be so awarded, together with the costs, if ordered, shall not be paid either
immediately after conviction, or within such period as shall at the time of the conviction be
appointed, the offender may be committed to imprisonment with or without hard labour, for a
term not exceeding two months unless such fine and costs be sooner paid.

Serious forms of assault are indictable offences.

Actus reus of assault

An act which causes the victim to apprehend immediate infliction of violence

constitutes the actus reus. For example, in the appeal case R v. Arobieke162 the
appellant had been convicted of manslaughter. The deceased had run across
electrified railway lines and was electrocuted.

The deceased and the defendant had a hostile past. Evidence showed that the
defendant had been walking along the platform peering into a train the deceased
had boarded and that the deceased had then run towards the railway lines.

The Court of Appeal quashed the defendant’s conviction of manslaughter: just

looking into a train without knowing whether the deceased was on it could not
constitute an unlawful act.

160
common assault. An assault not amounting to an aggravated assault – Osborn’s. Under
English law there are four examples of aggravated assault, (1) assault with intent to resist arrest,
(2) assault on, resistance to, or obstruction to constables, (3) assault occasioning actual bodily
harm and (4) racially aggravated assaults
161
[1983] 3 All E.R. 316
162
[1983] Crim. L.R. 314

46
However in Smith v. Chief Constable of Woking Police Station 163 “X’s staring at Y
through a window induced fear in Y and, although Y did not know what X was
going to do next, it sufficed for the purposes of the offence that it was believed to
be something of a violent nature, so that she (Y) was very frightened.”164

Mens rea of assault

Assault is a crime of basic intent and either recklessness or intention will suffice
for the mens rea. Recklessness in this context is Cunningham recklessness (i.e.
subjective recklessness). R v. Savage, R v. Parmenter165 as mentioned above,
apply here.

Battery

The actus reus of battery consists of an intentional and hostile touching of, or
contact with, one person by another. It is immaterial whether the battery is
inflicted directly by the body of the offender or through the medium of some
weapon or instrument controlled by his actions. There are certain exceptions, for
example, the correction of children, the lawful exercise of the power of arrest, the
use of reasonable force when the necessity to act in self-defence arises and
engagement in lawful sports. There are many acts, which are impliedly or
expressly consented to, such as jostling in crowded places and touching a
person for the purposes of engaging his attention.

Mens Rea of Battery

Battery is a crime of basic intent requiring either intention or recklessness.

Assault Occasioning/Causing Actual Bodily Harm

The actus reus is that of common assault (battery) plus the consequence of
actual bodily harm though not serious injury. “Actual bodily harm means an injury
no matter how slight, a scratch or a bruise is enough. It also includes psychiatric
illness caused by the defendant’s action.”166

If the defendant has the mens rea required for the assault of battery and uses
unlawful force, which causes injury, then he is guilty of this offence (R v.
Savage167).

Reeves v. Police Commissioner168

163
(1983) 76 Cr. App. R. 234
164
Op cit, Curzon, p 201
165
[1991] 4 All E.R. 698
166
Op cit, Martin, p 106
167
[1991] 4 All E.R. 698
168
(1969) 14 W.I.R. 5

47
 _____________________

(iv) wounding

Malicious Wounding

This is the less serious of the wounding offences and is also dealt with in the
Offences Against the Person Act 1864. According to s. 22 “Whosoever shall
unlawfully and maliciously wound or inflict any grievous bodily harm upon any
other person, wither with or without any weapon or instrument, shall be guilty of a
misdemeanour, and, being convicted thereof, shall be liable to be imprisoned for
a term not exceeding three years, with or without hard labour”.

The Criminal Code of Saint Vincent and the Grenadines, Cap 124, s. 174,
describes the offence in identical words, however the penalty, is fourteen years
imprisonment.
The Jamaican Offences against the Persons Act 1864 states ……

Actus reus of malicious wounding

There are two alternative offences here:

i. inflicting grievous bodily harm; and

ii. unlawfully and maliciously wounding

Inflicting grievous bodily harm

‘Inflicting’ includes doing something directly resulting in force being applied to the
victim’s body; and grievous means really serious harm.

In R v. Wilson169 the House of Lords held that when a person charged with
inflicting grievous bodily harm under s. 20 of the Offences Against the Persons
Act 1861 (UK), it is open to the jury to find him guilty of the alternative offence of
occasioning actual bodily harm. In Jamaica, under the Offences against the
Persons Act ….

Unlawful wounding

‘Wounding’ refers to a breaking of both layers of the skin. For instance in J.J.C v.
Eisenhower170 it was decided that the rupturing of blood vessels internally was
not a wound. In this case the defendant had fired an air pistol at the victim and a
pellet, which had struck his eye, caused bleeding inside the eye but did not

169
[1983] 1 W.L.R. 356
170
[1983] 3 All E.R. 230

48
puncture it all. But a wound need not be a serious injury; a small cut is enough to
be classed as a wound. A cut inside the mouth is classed as a wound, because it
is a continuation of the external skin.”171

Statute

Mens rea of malicious wounding

This is an offence of basic intent and intention or recklessness covers the word
“maliciously”. Foresight of some harm, however slight, suffices, although the
harm actually caused must be serious (R v Savage and R v.Parmenter172).

Wounding With Intent

The Criminal Code, Cap. 124, of the Laws of St. Vincent and the Grenadine
provides at, s. 173 that:

“Any person who, unlawfully and maliciously, by any means whatever, wounds or
causes grievous bodily harm to any person with intent to do so, or with intent to
resist or prevent lawful apprehension or detention of any person, is guilty of an
offence and liable to imprisonment for life”.

In Jamaica, the Offences against the Person Act 1864 states:

The full title of the offence in Jamaica is ‘shooting or attempting to shoot or

wounding with intent to do grievous bodily harm’. Consequently the s. 20 offence
includes bullet wounds. The penalty of this felony is life imprisonment with or
without hard labour.

Actus reus of wounding with intent

Wounding and grievous bodily harm have the same meaning as above. The
defendant must have caused grievous bodily harm as opposed to inflicting it. A
person might have caused grievous bodily harm without inflicting it or on the
other hand can cause by inflicting it. It is acceptable that the word “causing” has
a wider meaning than the word “inflicting”; and an assault is not a necessary
ingredient of the infliction of grievous bodily harm (R v. Wilson173).

Mens rea of wounding with intent

The mens rea is intention or recklessness plus the ulterior intent which is either
an intention to cause grievous bodily harm or an intention to prevent lawful
apprehension or detention.

171
Op cit, Martin, p 107
172
[1992] A.C. 714
173
[1983] 1 W.L.R. 356

49
Recklessness as to doing grievous bodily harm with intent is insufficient for
liability (R v. Belfon174).

____________________________________________

3. SEXUAL OFFENCES

Statute

(i) rape

According to the Offences Against the Persons Act 1864 s. 44(1) “ … Whosoever
shall be convicted of rape shall be guilty of a felony, and being convicted thereof,
shall be liable to imprisonment for life”.

Briefly stated, rape is committed when the defendant has sexual intercourse with
a woman with intent to do so without her consent or with indifference as to
whether or not she consented.

In Director of Public Prosecutions v. Morgan175 the appellant brought about the

rape of his wife by inviting three friends to have sex with her. He told them that
they were to ignore any signs of protest, as she enjoyed sex this way. But she
was not consenting and did offer considerable resistance to her assailants. They
in turn used considerable force to overcome her.
The friends were charged with rape, and the husband with aiding and abetting.
They appealed against the direction of the trial judge, that their belief in her
consent must be reasonable. The Court of Appeal dismissed their appeals but
gave leave to appeal to the House of Lords. The question that that house had to
settle was “… whether in rape a defendant can properly be convicted
notwithstanding that he in fact believed the woman consented, if such belief was
not based on reasonable grounds”.

The appeal was dismissed. But the House of Lords said that “… honest belief
clearly negatives intent, the reasonableness or otherwise of that belief can only
be evidence for or against the view that the belief and therefore the intent was
actually held.”

It was also found that if the intention of the accused was also to have intercourse,
recklessly and not caring whether the victim was consenting or not, it is
equivalent to an intent to do the prohibited act.
174
[1976] 3 All E.R. 46.I do not have this case
175
[1976] A.C. 182; [1975] 2 All E.R. 347

50
Actus reus of rape

The actus reus of rape is sexual intercourse without the woman’s consent.
Before 1992, it was accepted that a man could not rape his wife. This is no
longer the case in England. In R v. R176 it was held that a man can rape his wife.
The situation in the Commonwealth Caribbean has not specifically been ruled on
by our Courts. The actus reus is the penetration by the man’s penis, however
slight, of the woman’s vagina. It is a continuing act commencing with the
penetration and terminating only after complete withdrawal.

Mens rea of rape

It must be proved that at the time of non-consensual intercourse, the defendant

either knew that the victim was not consenting or that he was reckless as to
whether she was consenting.

The State v. Kowshall Persuad177.

In Kaitamaki v. R178 Kaitamaki penetrated the victim believing she had consented
to intercourse. After he had penetrated her he became aware that she did not
consent, but he did not desist from intercourse. He was convicted of rape and
appealed.

He appealed inter alia on the grounds that at the time of penetration he thought
that his victim was willing, and that since rape is “penetration without consent”
once penetration had been completed, without the necessary mens rea, he could
not have been said to have committed rape. His appeal was dismissed, as
sexual intercourse is a continuing act, which only ends with withdrawal.

In England, a man can rape a man under s.1 of the Sexual Offences Act 1956
(as amended by the Criminal Justice and Public Order Act (CJPOA) 1994 (UK)).
This is not the case in the Commonwealth Caribbean.

______________________

(ii) incest

The offence of incest does not depend on the consent of a woman. Incest occurs
when people with a specified degree of consanguinity 179 have sexual intercourse.

176
[1992] 1 A.C. 599
177
(1975) 27 W.I.R. 82. I do not have this case
178
[1995] A.C. 147
179
consanguinity. [Of the same blood] Relationship by descent, either lineally, as in the case of
father and son, or collaterally, by descent from a common ancestor; thus, cousins are related by
collateral consanguinity, being descended from a common grandparent – Osborn’s

51
In English law (and by dint of reception, in Jamaican law) incest was not a
common law crime until 1908, but it was dealt with by the ecclesiastical courts180.

Currently the offence is defined is ss. 00 and 00 of the Incest (Punishment) Act
1948:

Incest (Punishment) Act 1948

Title of section

0. ooooooooo

If the victim is a girl under 13 years old, the offence is punishable with life
imprisonment. [Check this] An attempt to commit incest is punishable _______.

In Jamaica a woman cannot commit incest because s. 00 only prohibits men

from having sex with a female of the specified consanguinity. 181 A man is guilty of
an offence under the Act provided that he is 00 years and over.

Does the Act apply to illegitimate as well as legitimate blood

relationships???

Mens rea must be proved; so a defendant would have a defence if he believed

that his wife’s daughter, the plaintiff was the child of an adulterer. 182

Is it an offence for a man or boy to incite to have sex with him a girl under
the age of 16 whom he knows to be his grand-daughter, daughter, sister or
half-sister??????

Would it matter if the relationship was illegitimate???????

“A girl under the age of 16 who permits incestuous intercourse commits no

offence and, consequently, the incitement was not an offence at common
law183” [check position in Jamaica]

It is proposed that the Incest (Punishment) Act 1948 be amended by the Incest
(Punishment) (Amendment) Act 1995184 which would state:

180
ecclesiastical courts. Courts having jurisdiction over the ecclesiastical law of the Church of
England. They are the Arches Court of Canterbury and the Chancery court of York, the
Consistory Courts of the dioceses, The Commissary Court of the diocese of Canterbury, and the
Court of Ecclesiastical Causes Reserved. The Judicial Committee of the Privy Council has
appellate jurisdiction (Ecclesiastical Jurisdiction Measure 1963, ss. 1, 8, 11) – Osborn’s
181
Under English law a woman will commit the offence if she allows her grandfather, father,
brother or son to have sex with her. As long as the male is able to have sex, then the offence will
be committed; ergo the age of the male is not important
182
Carmichael [1940] 1 K.B. 630; [1940] 2 All E.R. 165, Baille-Smith (1976) 64 Cr. App. R. 76
183
Whitehouse (1977) 65 Cr. App. R. 33
184
The Jamaica Gazette CXVIII Tuesday 10th October, 1995, No. 39

52
 Incest (Punishment) (Amendment) Act 1995

Title of section

2. (1) The offence of incest is committed by a person of or over the age of

sixteen years who has sexual intercourse with another knowing that the other
person is his or her grandfather, grandmother, father, mother, brother, sister,
son, daughter, uncle, aunt, nephew, niece, grandson, granddaughter, or any
person to whom he or she stands in loco parentis to him or her.

(2) It is immaterial that sexual intercourse was had with the consent of any of the
persons involved.

(3) A person who commits the offence of incest is guilty of a felony and is liable on
conviction to imprisonment for life.

If this section of the proposed Bill became apart of Jamaican law it would target
men and women who are widely anecdotally known to be perpetrators of this
offence; those acting in loco parentis, aunts and uncles. Notice that the section
does not say ‘man’ or ‘woman’ it says “persons”, therefore the crime would no
longer be gender specific.

The term, loco parentis would act as a ‘catch-all’ for those relatives such as older
cousins (who have grandparents in common) and family friends who are asked to
care for children, but molest them instead. Such persons would be deterred by
the possibility of being sentenced to life imprisonment if convicted.

__________________________________________

4. OFFENCES AGAINST PROPERTY

(i) theft or larceny

The laws of each country in the Commonwealth Caribbean provide for this
offence. The offence of larceny in some Commonwealth Caribbean countries
derives from the English Larceny Act 1916. The Theft Act 1968 abolished the
Larceny Act 1916. The Theft Act 1978 of England is a development on the 1968
Act. Some Commonwealth Caribbean countries have abolished their law which
covered simple larceny and the aggravated larceny offence and have enacted
theft laws along the lines of the English 1968 and 1978 Acts. But Jamaica has
kept hers.

Larceny

According to s. 3 of the Larceny Act 1942, a person steals who, without the
consent of the owner, fraudulently and without the claim of right made in good

53
faith, takes and carries away anything capable of being stolen with intent, at the
time of such taking, permanently to deprive the owner thereof.

Actus reus of larceny

Takes (an appropriation):

The actus reus of larceny consists of taking and carrying away. The 1942 Act
says:

The Larceny Act 1942

3. Definition

3. (2) (i) “Takes” includes obtaining possession –

(a) by any trick;

(b) by intimidation;

(c) under a mistake on the part of the owner, with knowledge on the part of
the taker that possession has been so obtained; and

(d) by finding, where at the time the finder believes that the owner can be
discovered by taking steps.

In Chee Awai and Beharry v. Quintyne185 the appellants alleged that they rescued
a half Alsatian pup from an attack from two other dogs. As a result the pup
followed them. The appellants claimed that the pup voluntarily jumped into
Beharry’s car.

At no time did either of the appellants try to find out who the owner of the dog
was. The court asserted that the owner of the pup could have been located, if the
appellants had taken reasonable steps.

To be found guilty of the offence it had to be shown that the appellants must
have believed that the owner could have been found if they had tried to find him.
The fact that they did not try at all caused their conviction. Because it showed
that they had always intended to take the pup permanently.

Carries away:

For the offence of larceny to be committed there must not only be a taking, but
also a carrying away. A bare removal from the place in which the thief found the
goods though he does not make off with them, is sufficient ‘carrying away’. If a
thing is attached it can only be carried away if it has been completely detached
(s. 3(2)(ii)).

185
(1968) 13 W.I.R. 474

54
If somebody pushes his hand into your pocket and tries to pull out your wallet but
does not succeed in getting it out, that person has committed the offence of
larceny.

R v. Taylor186

Owner (belonging to another):

The essence of larceny is the taking of property without the consent of the owner.
The owner of the property includes the legal owner, the part owner or person
having possession or control of or a special property in, anything capable of
being stolen (s. 3(2)(iii)).

The Jamaican case of R v. McLean187, illustrates the point that the property must
be taken without the consent of the owner. The appellant who had been
convicted of larceny at first instance188 appealed for the conviction to be
overturned on the grounds that the most vital element of the offence had not
occurred. The vital element being that the defendant must carry away the
property of the plaintiff without the plaintiff’s consent. To support this position, the
defence relied on the case, of R v. Turvey189.

In this case, a man who worked at the Ministry of Works depot (the appellant)
approached W., who was in charge of another depot. He suggested that W. steal
from his depot, with the view of passing the goods to him, so that he in turn could
hand it to a receiver.

W. informed his superiors who instructed him to hand over the goods to the
appellant; these instructions were given with the view of entrapping 190 the
appellant. W. did this, and the appellant was charged and convicted of stealing.

On appeal his conviction was quashed. It was held that the charge was wrong.
The court found that there was no evidence of asportation 191 as the appellant had
not carried away the goods against the will of the owner, who, in the court’s eyes,
was willing that the appellant should have them. The court found that the owner

186
[1911] 11 K.B. 674. I do not have this case
187
(1967)12 W.I.R. 515. This case was widely reported and closely followed. It is worthwhile
asking your grandparents about it. It preceded many of the social reforms we take for granted
today, and vividly illustrates what life was like for ‘ordinary’ Jamaicans even in post colonial
Jamaica
188
In the Resident Magistrate’s Court
189
[1946] 2 All E.R. 60
190
entrapment. Enticing a person into committing a crime in order to prosecute him. Generally
not a defence to criminal proceedings – Osborn’s
191
This means the felonious removal of property, in common parlance it means the ‘action of
carrying off’; asportation. The “carrying away” which was an essential ingredient of the common
law offence of larceny. It included the removal of anything from the place which it occupied. The
requirement of taking and carrying away does not form part of the definition of theft in the Theft
Act 1968 (UK), s. 1 – Osborn’s

55
‘handed’ the property to the appellant and that under those circumstances the
conviction had to be quashed.

Turvey was not successfully applied to McLean. The cases were distinguished
on the ground that in Turvey the owner of the property consented to it being
handed over to a known person. So there was no element of uncertainty. In
McLean there was no preconceived concert to deliver the envelope to a known
individual who would in due course commit larceny according to plan. In Mclean
there was only suspicion. “The plan was to place the envelope where it could be
taken not by a person whom the pay clerk knew was going to take it, but by a
suspected person, if he had the mind to steal it.” 192 It was not known for sure in
McLean who would be revealed (by the entrapment) as the thief.

In McLean the appellant worked at the Royal Caribbean Hotel, St. James 193, as
one of a crew of gardeners. Usually he would collect the pay packets of the other
gardeners. He did this because he was usually present on each pay day.

When taking receipt of his pay packet as well as the others’, he had to sign a pay
sheet in order to collect the envelopes. The appellant became the suspect of a
theft when another employee’s pay packet disappeared. This occurred on the
first pay day in September. The missing pay packet belonged to a telephone
operator; in all ₤13.00 was stolen. The pay clerk, Mr. Eric Clark, had to
personally replace this sum. But he suspected who had taken the money. So with
the cooperation of the Chief Accountant and Treasurer of the hotel, “G. Brown”
was created.

On 9 September 1966, eight gardeners, including McLean were to be paid. The

name of each gardener was written on his envelope. But, with the view of
entrapping the appellant, a ninth envelope was prepared and a fictitious name,
“G. Brown” was marked on it. There was no gardener by that name. The
appellant signed for eight pay packets and collected the ninth also. Eight of the
pay packets had been clipped together to form one bundle. The ninth packet,
marked “G. Brown” had been laid alongside that bundle. According to the clerk194
the appellant inspected all nine packets by looking at the names on each of
them; he took them up and went away.195 “G. Brown’s” pay packet contained:

i. five one pound notes;

192
(1967) 12 W.I.R. 515 per Shelley JA at p 518
193
Now Sandals Royal Caribbean
194
Whose evidence was accepted by the resident magistrate
195
McLean’s account of the event was very different. He testified that the envelopes were put in
his hand; that they were not clipped, but bound by an elastic band and that he was handed eight
envelopes. Importantly, he also testified that his pay packet contained more money than usual
(₤2 10s. 6d), but that he had thought that it was money paid for overtime. He denied opening any
envelope which was not his own; even though Eric Clarke had testified that fifteen minutes after
he had collected the pay packets, McLean had returned to say that one of the gardeners’
envelopes was short (referring to the contents), and that he (Mr. Clarke) had explained to him that
money had been advanced to that gardener and that there was a debit note for the amount

56
ii. one ten shilling note; and

iii. a six pence coin.

The serial numbers of the notes were recorded by the pay clerk. The serial
numbers of the notes in the appellant’s pay packet were also recorded. On that
same day the appellant gave money to the manager of the hotel in partial
satisfaction of a personal debt. He paid to the manager two one pound notes and
a ten shilling note. When the serial numbers of these notes were checked it was
found that the serial number of the ten shilling note was the same as that of the
ten shilling note enclosed in the ninth envelope marked “G. Brown”.

Subsequently, the police asked the appellant to show them the monies he had in
his possession. He had five one pound notes and a sixpenny piece. Of the five
notes, two bore serial numbers of notes that had been enclosed in the envelope
marked “G. Brown”. The appellant was charged for the larceny of the money in
the envelope marked “G. Brown”. He was charged and convicted of larceny of
₤5 10s.6d.

The appellant appealed his conviction on the grounds that “ … as the owner was
willing that the appellant should have the envelope with the money and had given
it to him, the appellant could not have carried it away against the consent of the
owner and could not therefore be convicted of larceny since the essential
element of that offence was that the money must be taken without the consent of
the owner”196. It was held197 that the appellant was correctly convicted of larceny.
The owner had not been willing for the money to be taken; he had merely
facilitated the commission of the offence. Thus the taking of the money was
against the consent of the owner.

However it must be noted that Moody J.A. strongly dissented this decision. His
Lordship believed that the appellant should have been allowed to use the
defence of consent. In his view the actions of the pay clerk could be equated to
handing over the money to the appellant. Moody J.A. said:

‘I am unable to reach any other conclusion than that the design was initiated by the pay clerk; the
pay clerk suggested or prompted or invited the appellant to take the ninth envelope containing the
money; that what took place was equivalent to a handing over; that the pay clerk released this
envelope and money from his power into the possession of the appellant. The appellant did no
more than take what was put for him to take. Maybe the pay clerk was intending to set a trap to
test the honesty of the appellant, but what he did amounted to unfair entrapment and the defence
of consent of the owner avails him.’198

Moody J.A. accepted the submission of counsel for the appellant that the money
was not taken without the owner’s consent. There was a trap set for the
196
(1967) 12 W.I.R. 515, a p. 528
197
By a majority ((four of five judges) as opposed to a unanimous decision) Moody J.A. dissented
198
(1967) 12 W.I.R. 515

57
appellant, and there was actual anxiety that the money should be taken. In his
Lordship’s opinion McLean did fall within the rule of R v. Turvey199. He pointed
out that the appeal had been made solely on a point of law.200 He said:

‘The sole point of this appeal was whether the appellant was rightly convicted of larceny – more
particularly, whether he had taken the envelope containing the money with the consent of the
owner’201

Moody J.A. could not accept that larceny had been committed in the instant case
because of existing authorities including R v. Turvey202. He cited a learned
article203 which stated that if the owner of goods is the person who originally
suggests that a trap be laid to catch a thief, then there is no larceny. 204 This
position is also supported by Mr. Glanville Williams in his book Criminal Law (The
General Part) 205in which he said 206

‘… the vital question on the issue of consent is who initiated the plan. … Suppose two owners:
both stand passively by at the moment when the accused takes, but the first originally caused the
theft to be suggested to the accused in order to test his honesty, while the second merely caused
a suggestion made by the accused to be taken up. In law, the first consents to the taking but the
second does not. In fact, there is no relevant difference between their states of mind at the time of
the taking. The difference is their conduct at the beginning, the first being regarded as guilty of
unfair entrapment, while the second is not. The doctrine of consent is merely the legal vehicle by
which the law distinguishes fair from unfair conduct.’

But Shelley J.A. who gave the chief judgment held that the pay clerk did no more
than facilitate the commission of the offence. He found that there was no handing
over, with the consent of his master, by the pay clerk. Shelley JA concluded:

Therefore, the appellant took the ninth envelope and its contents against the consent of the
owner, and there is evidence upon which the resident magistrate could and must have found that
the appellant took the pay envelope animo furandi207.

I would therefore dismiss the appeal.208

199
[1946] 2 All E.R. 60
200
Close to the end of his judgment, Moody J.A. made some ‘observations’ which were really
deductions that should have been drawn from the evidence in chief, and which could have raised
doubt about McLean’s actual criminal culpability. For instance at p. 528 he said “There is no
evidence connecting the appellant with the shortage of ₤13, the telephone operator’s pay, the
week before; indeed, it is difficult to see in the absence of any explanation what connection he
could have had with the shortage”.
201
(1967) 12 W.I.R. 515, at p. 524
202
[1946] 2 All E.R. 60. Moody J.A. also cited R v. Egginton (1801), 2 Leach 913; 2 Bos, & P. 508;
126 E.R. 1410, C.C.R, R v. Miller, R v. Page(1965), 49 Cr. App. Rep. 241, C.C.A. and Martin v.
Puttick (1967), 51 Cr. App. Rep. 272
203
Archer, P. Larceny and the Owner’s Consent [1961] Crim. L.R. 524
204
i.e. if the offence was induced there is no larceny
205
Also cited by Moody J.A.
206
Williams, G. (1961) Criminal Law (The General Part) 2nd Edition. Great Britain: Stevenson and
Sons Ltd, p. 780, para 225
207
animus furandi. [The intention of stealing] – Osborn’s
208
Ibid, at p. 519

58
A person may be guilty of stealing anything capable of being stolen
notwithstanding that he has lawful possession thereof. This is so in the case of a
bailee or part owner who fraudulently converts the thing to his own use or the use
of any person other than the owner.

Anything capable of being stolen (property):

This includes everything which has value and is the property of any person
(s. 3(3)).

Bourne v. Edwards209

Anything which is severed from the realty (land) is capable of being stolen. The
carcass of a wild animal cannot be stolen if that animal has not been reduced
into possession of the carcass. Fixtures, growing things, and ore and anything
attached to or forming part of the realty (land), unless he has abandoned
possession thereof are treated similarly.

Consider, for example, Carrington v. Smart210 in which banana suckers were

categorised as plants and capable of being stolen under the Trinidad and Tobago
Summary Offences Act CH 11:02, s. 21.

The appellant appealed on the grounds that he had not committed larceny for the
purpose of the Act because a banana sucker was a tree not a plant. But the court
held that he had committed larceny because a banana sucker was a plant.

They came to this conclusion by considering several sources such as a

Chambers Dictionary and because banana suckers are colloquially referred to as
plants. The appeal was dismissed.

The mens rea of larceny

Fraudulently

Fraudulently means that the taking must be intentional and without mistake and
with knowledge that the property of another person is being taken.

R v. Williams211

Claim of right

A person has a claim of right or right where he honestly asserts what he believes
to be a lawful claim even though it may be unfounded in law and fact.

209
(1956) 1 W.I.R. 96. I do not have this case
210
(1985) 36 W.I.R. 355
211
[1953] 1 Q.B. 660; Cr. App. R. 71. I do not have this case

59
 Intention to permanently deprive

The thief must intend to deprive the owner, not temporarily, but permanently of
his property. This was the substance of Moody JA’s dissent in R v. McLean212 it
was alleged that McLean was deliberately given the pay packet in order to catch
a suspected thief. His lordship stated that the defence of consent availed McLean
because he had no intention to take the money; it had been given to him by the
pay clerk. Remember his words, “ … the pay clerk suggested or prompted or
invited the appellant to take the ninth envelope containing the money; that what
took place was equivalent to a handing over; that the pay clerk released this
envelope and money from his power into the possession of the appellant. The
appellant did no more than take what was put for him to take …”213

The intent to permanently deprive the owner of his property must be formed at
the time at which the taking away occurs. For instance in Moynes v. Cooper214 a
wage clerk mistakenly put extra money into the pay packet of an employee which
he handed to him. The wage clerk thought that the entire amount was due to the
employee and intended that the employee received all the money in the pay
packet. At the time of receiving the pay packet, the employee was unaware of the
mistake, but on discovering it later in the day, dishonestly decided to appropriate
the contents of the pay packet. It was held that the employee was not guilty of
larceny of the amount of money in excess of that to which he was entitled. He
had no intention to steal when he received the pay packet. It was held that the
taking, was an innocent taking.

In contrast is the case of Russell v. Smith215.

Theft

It can be said that what is called the modern law of theft is similar to that of
larceny but is formulated in a different way with added dimensions to deal with
changes and developments within society. When does one commit the offence of
theft?

A person is guilty of theft if he dishonestly appropriates property belonging to

another with the intention of permanently depriving the other of it.

Actus reus of theft

The actus reus of theft consists of the act of appropriation.

Appropriation
212
(1967) 12 W.I.R. 515
213
Ibid
214
[1956] 1 Q.B. 439; [1956] 40 Cr. App. R. 198
215
[1958] 1 Q.B. 27. I do not have this case.

60
Appropriation is any assumption by the person of the rights of an owner. An act
can be an appropriation notwithstanding that it was done with the consent of the
owner, if the consent was obtained by deception.

In R v. Gomez216 property was handed over in the belief that cheques given for it
were genuine, when in fact the cheques were stolen and worthless. If a person
comes by property innocently in the first instance but later assumes a right to it or
dealing with it by keeping it as an owner, he can appropriate it.

It is unnecessary that all of the rights of the owner be assumed. It is enough that
one or some of them are. In R v. Morris217 the defendant switched price labels on
goods from a supermarket shelf, placing the lower prices on the higher priced
goods. He took the items to the checkout and paid the lower price. This strikes
me as incomplete.

Property

Property includes real (land) and personal property (money and intangible)
property such as credit in a bank account). Land can only be stolen by:

(i) a limited group of people in fiduciary position such as a trustee or personal

representative;

(ii) certain persons such as tenants taking or severing something forming part
of the land.

Wild plants, flowers and mushrooms can only be stolen for commercial purposes.
Wild animals cannot be stolen unless they are tamed, in captivity or in the
possession of another. Say something on the new

216
[1992] A.C. 442
217
[1984] A.C. 320

61