on 10-Jul-2016 (Sun)

Poussard v Spiers and Pond (1875-76) LR 1 QBD 410 FACTS: An actress was under a contractual obligation to play in an operetta as from the beginning of its London run. The producers were forced to use a substitute for her, as she was ill until a week after the show opened. HELD: The obligation to perform as from the first night was a condition and the breach of it entitled the other party to terminate the contract.

Bettini v Gye (1876) 1 QBD 183 FACTS: A singer was under a contractual obligation to sing in a series of concerts and to take part in six days of rehearsals before the first performance. He arrived three days late, thus leaving only three days for rehearsals. HELD: The undertaking to take part in the rehearsals for six days was a warranty and not a condition. The breach entitled the other party to damages but not to terminate the contract.

The parties to a contract are free to classify the relative importance of the terms of their contract as they see fit. The classification of a term by the parties is not always decisive – do be aware that even where the parties describe a term as a condition, it is open to the court to hold that the parties could not have intended the term to have had this effect. This is illustrated by the case of Schuler v Wickman Machine Tool Sales [1974] AC 235.

The traditional division of terms into conditions and warranties was adopted in the drafting of the Sale of Goods Act 1893, where a condition was defined in s 11 as a term 'the breach of which may give rise to a right to treat the contract as repudiated'; a warranty was defined as a term 'the breach of which may give rise to a claim for damages but not a right to reject the goods and treat the contract as repudiated'. The Act provided, by s 62, that a warranty was 'collateral to the main purpose of the contract'. These definitions were included without alteration in the Sale of Goods Act 1979 ('SGA 1979') and remain unaffected by the Sale and Supply of Goods Act 1994.

The terms implied by virtue of the SGA 1979 ss 12–15 are classified as conditions. Note in particular s 13(1A) and s 14(6). Consequently, this creates a right to treat the contract as repudiated for any breach of these implied terms (i.e. reject the goods and claim a refund) and claim damages.

The classification of the terms implied by the SGA 1979 ss 13–15 (but note not s 12) as conditions has been altered as a result of s 15A, which was incorporated into the SGA 1979 by virtue of s 4 of the Sale and Supply of Goods Act 1994.

The amendment does not affect the absolute right of the consumer to reject goods for any breach of a term implied by the SGA 1979 ss 13–15 (now provided for by the Consumer Rights Act 2015). The amendment does, however, create a statutory exception to the absolute right of rejection for breach of the implied terms where the goods are supplied to a buyer who is not dealing as a consumer. As a result, where a buyer would previously have had the right to terminate the contract and reject the goods, that right has now been lost where the seller can show that the breach is so slight that it would be unreasonable for the buyer to reject. The effect of the modification in these circumstances is that breach of these implied terms is not to be treated automatically as a breach of condition but may, at the court's discretion, be treated as a breach of warranty and, accordingly, the only remedy available will be to claim damages. The amendment gives effect to the view that damages will normally suffice for non-consumers (although not for consumers) and, further, that the right to terminate for the slightest breach could be unfair to the seller whose loss resulting from rejection might far exceed the cost of remedying the defect.

The traditional distinction between conditions and warranties is no longer regarded as exhaustive. In Hong Kong Fir Shipping Co v Kawasaki Kisen Kaisha Ltd [1962] 2 QB 26 the Court of Appeal held that there are many terms which, at the outset, are neither conditions nor warranties but are of an innominate or intermediate nature. A breach of such a term, if it has a minor effect, will allow the innocent party to claim damages only. A breach with more serious consequences will allow the innocent party to treat the contract as repudiated and claim damages. This represents a more flexible approach and allows the court a good deal of leeway when dealing with cases where the purported innocent party is attempting to use a trivial breach in order to extract themselves from a contractual agreement which is no longer commercially advantageous.

There are some areas of commercial practice, however, where the value of certainty tends to outweigh the appeal of flexibility. In the case of The Mihalis Angelos [1971] 1 QB 164, the Court of Appeal was anxious to limit the application of the Hong Kong Fir approach in relation to a very specific type of commercial clause, namely an 'expected readiness to load' clause. As far as this type of clause is concerned, the court was content to hold that this clause was not innominate but was a condition.

The approach adopted in The Mihalis Angelos was approved by both the Court of Appeal and the House of Lords in the case of Bunge Corporation v Tradax Exports SA [1981] 1 WLR 711. Again, the subject of contention was an 'expected readiness to load' clause. Both courts rejected any attempt to be swayed by the Hong Kong Fir test and, approving the decision in The Mihalis Angelos, declared that the clause was a condition. Lord Wilberforce stated that to find otherwise 'would fatally remove from a vital provision in the contract that certainty which is the most indispensable quality of mercantile contracts'.

The fact that the innominate term is alive and well (as is the test from Hong Kong Fir) can be discerned from a further Court of Appeal decision, that in The Hansa Nord [1976] QB 44. In this case, Lord Denning MR explained that:

The task of the court can be stated simply in the way in which Upjohn LJ stated it [in the Hong Kong Fir case]. First, see whether the stipulation, on its true construction, is a condition strictly so called, that is a stipulation such that, for any breach of it, the other party is entitled to treat himself as discharged. Second, if it is not such a condition, then look to the extent of the actual breach which has taken place. If it is such as to go to the root of the contract, the other party is entitled to treat himself as discharged; but otherwise not. To this may be added an anticipatory breach. If one party, before the day on which he is due to perform his part, shows by his words or conduct that he will not perform it in a vital respect when the day comes, the other party is entitled to treat himself as discharged.

Time is of greater or lesser importance to the parties in most kinds of contract. It is quite usual for the contracting parties to stipulate for a date for delivery for the sale of goods. Failure to comply with such a stipulation is, obviously, a breach of contract, but whether it is a breach of a condition or a warranty will depend on the intention of the parties. This intention will be assessed by reference to the express terms of the contract and, where appropriate, the nature and circumstances of the contract. A time clause in a mercantile contract is not necessarily a condition. Where a requirement as to timing is essential to the contract, the expression used is that 'time is of the essence'.

First, the law might adopt a test for legitimate rejection that hinges on there being seriously adverse consequences from the viewpoint of the buyer. If the Hong Kong Fir Shipping case were to set a general standard for withdrawal, the test would be whether the sellers' breach deprived the buyers of substantially the whole benefit of the bargain (which it manifestly did not on the facts of Arcos). In fact, following the decision in the Hong Kong Fir Shipping case, there was a period when the test was employed precisely in order to block what were seen as bad faith rejections (perhaps the best example is the decision of the Court of Appeal in Cehave NV v Bremer Handels GmbH: The Hansa Nord [1976] QB 44).

Second, the law might require that the buyer's rejection is 'reasonable' in the circumstances. In effect, this is the strategy adopted in the Sale of Goods Act 1979 s 15A (incorporated into the SGA 1979 by virtue of s 4 of the Sale and Supply of Goods Act 1994), according to which a commercial buyer will be restricted to a remedy in damages where the seller's breach of condition is so slight as to make rejection unreasonable. Presumably, we would treat the sellers' breach in Arcos as 'slight' and, concomitantly, we would view the buyers' rejection of the timber as unreasonable.

In White and Carter (Councils) Ltd v McGregor [1962] AC 413, the defendants contracted with White and Carter for the latter to provide advertising services in relation to their (the defendants') garage business. Shortly after entering into the contract, the defendants notified White and Carter that they no longer required these services. There was no cooling-off period in this contract; the defendants were signalling a clear breach of condition. As such, it presented White and Carter with a simple choice: either to accept the defendants' repudiation, treat the contract as at an end, and sue for damages, or to affirm the contract, treating it as still in place. White and Carter decided to affirm the contract, to provide the advertising services notwithstanding the defendants' repudiation, and to bill the defendants (as per the contract) for the services so provided. The majority of the House of Lords held that White and Carter were within their rights to do this.

From an economic perspective, it might be argued that an unwanted performance is wasteful and that this does not maximise welfare. Generally, though, the English law of contract is not responsive to such economic arguments. Rather, when precedents are not determinative, it is intuitive judgments about what is and is not 'reasonable' that tend to guide judicial decisions – and, following the decision in White and Carter, there is a considerable body of jurisprudence betraying an intuitive sense that the innocent party should not have a completely free hand in electing between accepting the breach as a repudiation of the contract and affirmation.

This sense does not go as far as requiring the election to be exercised reasonably; but it should not be wholly irrational or unreasonable. In one of the subsequent cases on the point, Reichman v Beveridge [2006] EWCA Civ 1659, Lloyd LJ captured the flavour of the case law when he said that the restriction will arise only exceptionally, in circumstances where 'an election to keep the contract alive would be wholly unreasonable [where] damages would be an adequate remedy, or [where the innocent party] would have no legitimate interest in making such an election' (para 17).

Recognising these considerations, there are signs of a different reception of Belize in other cases (such as Thomas Crema v Cenkos Securities plc [2011] 1 WLR 2066). Most significantly perhaps, in Stena Line v Merchant Navy Ratings Pension Fund Trustees Ltd [2011] EWCA Civ 543, Arden LJ emphasises the importance of Lord Hoffmann's speech in improving the coherence of the law. At one level, the coherence is found in the subsuming of implied terms under the general cover of interpretation. Thus, at para 36, Lady Justice Arden says:

In Belize, the Privy Council analysed the case law on the implication of terms and decided that the implication of terms is, in essence, an exercise in interpretation. This development promotes the internal coherence of the law by emphasising the role played by the principles of interpretation not only in the context of the interpretation of documents simpliciter but also in the field of the implication of terms. Those principles are the unifying factor. The internal coherence of the law is important because it enables the courts to identify the aims and values that underpin the law and to pursue those values and aims so as to achieve consistency in the structure of the law.

Of course, Lord Hoffmann's master question does not necessarily point to a clear answer; if the context is unclear, resolving an implied terms dispute is no more straightforward than resolving a question of interpretation. So, for example, in Dear v Jackson [2013] EWCA Civ 89, although the Court of Appeal happily endorsed the modern principles relating to construction, implication, and respect for commercial common sense (see para 15), this did not enable the case to decide itself.

The classical approach to the implication of terms assumes a setting of self-interested adversarial dealing. Even in such a setting, it is safe to assume that the parties would have agreed to terms that are essential for the business efficacy of the deal. However, if A has not expressly agreed to a term that otherwise affects his economic interests, the classical necessity test entails that it will not be implied. This means that, if B is anticipating and relying on acts of cooperation by A, they will have to be expressly bargained for.

So, for example, in the famous case of Suisse Atlantique Societe d'Armament Maritime v Rotterdamsche Kolen Centrale [1967] 1 AC 361 (see also 11.3.2), where the charterparty contained no such express provision, the owners were fighting a lost cause in arguing that the spirit of the deal was that the charterers should make so many regular and punctual voyages across the Atlantic. According to the charter, the charterers were required to pay agreed damages (demurrage) if they exceeded the specified (lay) days allowed in port for loading and unloading the vessel; and this is precisely what the charterers did. The fact that they did this rather than pay the freight rates that the owners expected to earn on the contract, and the fact that they did this in self-serving response to the market conditions did not amount to a breach of contract. Certainly, this was a self-interested performance of the contract; it was not co-operative; but it could not be corrected by an implied term.

That said, in TSG Building Services plc v South Anglia Housing Ltd [2013] EWHC 1151 (TCC), where the context – underlined by the express terms of the contract – required the parties (who were 'partnering team members') to 'work together and individually in the spirit of trust, fairness and mutual co-operation', Akenhead J held that South Anglia's unexplained termination of TSG's appointment was in no way constrained by either the express provision for co-operation or by a term for good faith that TSG argued should be implied.

Terms can also be implied by the courts at common law in order to give effect to legal duties which arise, as a matter of policy, out of certain common types of contractual relationships. These are often referred to as terms implied in law.

In Liverpool City Council v Irwin [1976] 2 WLR 562, a House of Lords decision, Lord Wilberforce said that the implication of terms simply on the ground of their reasonableness would be 'to extend a long, and undesirable, way beyond sound authority'. This case was concerned with the obligations of a local authority towards its tenants in a high-rise block of flats. The court was simply concerned to establish what the contract was, the parties themselves not having fully stated the terms. It was in this sense that the court was searching for what must be implied. Lord Wilberforce said further:

In my opinion such obligation should be read into the contract as the nature of the contract itself implicitly requires, no more, no less; a test in other words of necessity. The relationship accepted by the corporation is that of landlord and tenant; the tenant accepts obligations accordingly, in relation, inter alia, to the stairs, the lifts and the rubbish chutes. All these are not just facilities, or conveniences provided at discretion, they are essentials of the tenancy without which life in the dwellings, as a tenant, is not possible ... The subject-matter of the lease (high-rise blocks) and the relationship created by the tenancy demands, of its nature, some contractual obligation on the landlord.

Lord Wilberforce concluded that, since there was no obligation to maintain and repair stairs, lifts and chutes undertaken by the tenants, then the nature of the contract and the circumstances required that the obligation be placed on the landlord. On the question of standard of maintenance, Lord Wilberforce resorted again to the concept of necessity, holding that the standard must not exceed what is necessary having regard to the circumstances, i.e. an obligation to keep in reasonable repair and usability, taking into account the responsibilities of the tenants themselves. Applying this test, the House of Lords unanimously decided that the council was not in breach of its obligations with regard to the maintenance of stairs, lifts and chutes.

Examples of statutory implied terms are to be found, most notably, in the Sale of Goods Act 1979 and the Supply of Goods and Services Act 1982, as amended by the Sale and Supply of Goods Act 1994.

The Sale of Goods Act 1979 ('SGA 1979') (as amended by the Sale and Supply of Goods Act 1994) s 12 is concerned with 'title' in the sense of the 'right to sell'. The SGA 1979 s 12(1) provides for the implication of three terms as to title to the goods, namely:

1. a condition that the seller has the right to sell the goods (s 12(1));
2. a warranty that the goods will be free from any undisclosed encumbrance (s 12(2)(a)); and
3. a warranty that the buyer will enjoy a right to quiet possession of the goods (s 12(2)(b)).

Rowland v Divall [1923] 2 KB 500 FACTS: The buyer of a car discovered that it had been stolen before it had come into the possession of the seller (a car dealer). As a result, the vehicle was returned to the original owner. The buyer sued the car dealer, seeking to recover the full price he had paid for the car, irrespective of the fact that he had used the car for four months. HELD by the Court of Appeal: There was a breach of the implied condition arising under s 12 of the SGA 1979. The car dealer had no title and the buyer, who had paid to become the full owner of the car, had, therefore, received nothing from him. There was a complete failure of consideration and the full purchase price was recoverable.

Beale v Taylor [1967] 1 WLR 1193 FACTS: A private seller sold a car to a private buyer on the strength of an advertisement wherein the car was described as a 'Herald convertible, white, 1961, twin carbs'. In reality, the car was an amalgam of two cars; the back was indeed a 1961 model but the front was part of an earlier one, a fact unknown to the seller. HELD: The advertisement was part of a contractual description of the car and, consequently, the seller was liable under s 13(1).

Is breach of the SGA 1979 s 13(1) classified as breach of a condition or breach of a warranty? See s 13(1A).

What does the SGA 1979 s 14(2) of the Sale of Goods Act 1979 (as amended) provide?

According to the SGA 1979 s 14(2A), what is the standard of satisfactory quality?

The SGA 1979 s 14(2B) provides a checklist of what may be taken into account in assessing the quality of the goods. What does this checklist include?

If goods have a self-evident purpose, e.g. a hot water bottle or a pair of underpants, this self- evident purpose will clearly be covered by s 14(2B)(a) as a purpose for which the 'goods of the kind in question are commonly supplied'.

Priest v Last [1903] CA 148 FACTS: There was a retail sale of a hot water bottle. The bottle burst and injured the buyer's wife. The buyer brought this action to recover damages for the medical expenses incurred. HELD: The seller was in breach of the implied condition as to fitness for purpose, the purpose being self-evident in the case of goods of this kind.

See also Grant v Australian Knitting Mills Ltd [1936] AC 85 where the retailers (along with the manufacturers) were held liable for the dermatitis caused to the wearer of woollen underpants. Clearly, they were not fit for their purpose

Prior to the amending of the Sale of Goods Act 1979 the term 'merchantable quality' had been utilised rather than the term 'satisfactory quality'. The problem with 'merchantable quality' was that it was concerned almost exclusively with the fitness of goods for their purpose and ignored other, non-functional characteristics. A particular problem with the old definition was that it seemed to take no account of minor or cosmetic defects: the SGA 1979 s 14(2B)(b) and (c) specifically remedy this weakness.

The SGA 1979 s 14(2B)(d) recognises that safety is an element of satisfactory quality. Here there is overlap with the Consumer Protection Act 1987, which provides victims of defective products with a strict liability route to the producer.

The SGA 1979 s 14(2B)(e) stipulates that durability is an aspect of satisfactory quality.

The previous case law on the point of durability had been somewhat unclear. In Lambert v Lewis [1982] AC 225, Lord Reid stated with reference to s 14(3) (but presumably equally applicable to s 14(2)) that it was 'a continuing warranty that the goods will continue to be fit for that purpose for a reasonable time after delivery'. Whatever the previous position, it is now clear that durability will need to be a feature of goods in order to be classified as satisfactory.

Goods that can be described as durable will be those possessing 'those qualities which will enable them to last in a reasonable condition for a reasonable time'. There is no attempt to define what a reasonable time is – each case must be determined taking into account the particular goods in question.

The exceptions to the implied term as to satisfactory quality are to be found in s 14(2C)(a) and (b). Thus, there is no condition as regards defects specifically drawn to the buyer's attention before the contract was made, or, if the buyer examines the goods before the contract is made, as regards defects which that examination ought to reveal. Nor will a condition be implied where the seller is not selling in the course of a business

By virtue of s 14(2C)(c) a buyer under a contract for sale by sample cannot claim in respect of a defect which would have been apparent from a reasonable examination of the sample.

Is breach of the SGA 1979 s 14(2) classified as breach of a condition or breach of a warranty? See s 14(6).

What does the Sale of Goods Act 1979 s 14(3) (as amended) provide?

Is breach of the SGA 1979 s 14(3), breach of a condition or warranty? See s 14(6)

The case of Balmoral Group Ltd v Borealis Ltd [2006] EWHC 1900 (Comm) helps to illustrate when the SGA 1979 s 14(3) may be relied upon. In this case Borealis supplied a polymer to Balmoral for use in the making of oil tanks. The material supplied was not defective or incorrectly manufactured; it was suitable for its general purpose. No breach of s 14(2) could therefore be established. The question for the court was whether it was suitable for Balmoral's particular purpose, which was made known to Borealis, of constructing above ground static tanks to be used for storing oil over long periods. Mr Justice Clarke stated that this was a matter falling within the reach of s 14(3).

No implied condition as to fitness for a particular purpose arises where the circumstances show that the buyer does not rely, or that it is unreasonable for him to rely, on the seller's skill or judgment. In the case of Balmoral Group Ltd v Borealis Ltd the claim under s 14(3) ultimately failed because, although Balmoral had made known its particular purpose and the material supplied by Borealis was not fit for this purpose, it was held that Balmoral could not reasonably rely on Borealis. Balmoral was in a position of greater expertise and it was for them to gauge the suitability of the seller's material for their particular purpose.

Where a sale is agreed to be by sample, two conditions are implied into the contract by the Sale of Goods Act 1979 (as amended) by virtue of s 15(2): (a) (b)

Is breach of the SGA 1979 s 15(2), breach of a condition or warranty? See s 15(3)

The right of the seller to exclude or restrict his liability under the Sale of Goods Act 1979 ss12, 13, 14 and 15 is controlled by s 55 and the provisions of the Unfair Contract Terms Act 1977.

Under s 6(1) of the Unfair Contract Terms Act 1977, the implied undertaking as to title contained in the SGA 1979 s 12 cannot be restricted or excluded.

Under s 6(2) of the Unfair Contract Terms Act 1977, the implied undertakings as to description, quality, fitness for purpose or sample contained in the SGA 1979 ss 13–15 cannot be excluded against any person acting as a consumer.

As against a person dealing otherwise than as a consumer, s 6(3) of the Unfair Contract Terms Act 1977 states that any contract term purporting to exclude or restrict liability in respect of the implied terms contained in the SGA 1979 ss 13–15, is subject to the requirement of reasonableness.

The Supply of Goods and Services Act 1982 (SGSA 1982) provides for the implication of terms in: (a) certain contracts for the transfer of property in goods; (b) contracts for the hire of goods; and (c) contracts for the supply of services. The SGSA 1982 also governs the exclusion of such implied terms.

For the purposes of the SGSA 1982, a 'contract for the transfer of goods' means a contract under which one person transfers or agrees to transfer to another the property in goods other than any of the following:

1. a contract of sale of goods
2. a hire-purchase agreement
3. a contract under which the property in goods is or is to be transferred in exchange for trading stamps
4. a transfer made by deed for which there is no consideration other than presumed consideration
5. a contract intended to operate by way of security (SGSA 1982 s 1).

For the purposes of the SGSA 1982, a 'contract for the hire of goods' means a contract under which one person bails or agrees to bail goods to another by way of hire other than any of the following:

1. a hire-purchase agreement
2. a contract under which goods are bailed in exchange for trading stamps (SGSA 1982 s 6).

In any contract for the hire of goods, terms will be implied corresponding to those that are implied in the case of contracts for the sale of goods (as amended). They are, implied terms about the right to transfer possession (s 7), implied terms where hire is by description (s 8), implied terms about quality or fitness (s 9), and implied terms where hire is by sample (s 10).

The SGSA 1982 provides for implied terms regarding (a) care and skill, (b) time of performance, and (c) consideration, in any contract for the supply of a service. FILL IN THE BLANKS:

1. Care and skill. Where the supplier is acting in __________________ _____________________________, there is an implied term that the supplier will carry out the service with ______________ care and skill (SGSA 1982).
2. Time of performance. Where the supplier is acting in the course of a business and the time for the service to be carried out is not fixed by the contract, left to be fixed in a manner agreed by the contract or determined by the course of dealing between the parties, there is an implied term that the supplier will carry out the service within a ___________ time (SGSA 1982 s 14).
3. Consideration. Where the consideration for the service is not determined by the contract, left to be determined in a manner to be agreed by the contract or determined by the course of dealing between the parties, there is an implied term that the party contracting with the supplier will pay a _______________ charge (SGSA 1982 s 15).

The Criminal Damage Act 1971 (CDA 1971), s 1(1) provides:

'A person who without lawful excuse damages or destroys any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.'

Whether property is damaged is a question of fact and degree. In Samuels v Stubbs [1972] 4 SASR 200, the court considered that it was difficult to lay down a general rule as to what constitutes damage. It held that it must be guided by the circumstances of each case, the nature of the article, and the mode by which it was affected. The court stated:

'[T]he word … is sufficiently wide in its meaning to embrace injury, mischief or harm done to property, and that in order to constitute damage it is unnecessary to establish such definite or actual damage as renders the property useless or prevents it from serving its normal function …'

In A (a juvenile) v R [1978] Crim LR 689, the court held that spitting on a policeman's coat was not criminal damage. This decision seems to imply that there has to be some expense on the part of the owner to restore the property to its previous condition.

In Hardman v Chief Constable of Avon, the court held that damage need not be permanent

in Roe v Kingerlee [1986] Crim LR 735, that mud spread on the walls of a police cell may constitute 'damage' within the CDA 1971, even though it could be easily removed.

This approach was confirmed in Morphitis v Salmon [1990] Crim LR 48, where the court stated: '[Criminal damage includes] not only permanent or temporary physical harm but also permanent or temporary impairment of value or usefulness.'

In R v Whitely (1991) 93 Cr App R 25, the court held that information does not fall within the definition of 'property' contained in the CDA 1971, s 10(1).

If the property is mortgaged it will also belong to the bank or mortgage company by virtue of s10(2)(c)

It can be seen that property can belong to more than one person. Where D owns property it can still belong to another, such as a co-owner.

Intention is to be given its ordinary meaning, R v Maloney [1985] 1 AC 905, and therefore requires consideration of whether, at the time he carried out the actus reus, it was his aim or purpose to destroy or damage the property belonging to another

It has been confirmed that the mens rea extends to the whole of the actus reus. In R v Smith [1974] 1 ALL ER 632, the Court of Appeal held that it is insufficient that D does an act that damages property intentionally. What must also be proved is that he knew, or was reckless as to whether, the property belonged to another. Smith, who lived in rented accommodation with his brother, had installed electrical wiring to connect a stereo system. He had also, with his brother's help and the landlord's permission, put down floorboards, wall panels and roofing material. After two years, Smith decided to vacate the flat and asked permission for his brother to remain: the landlord declined. After this, Smith smashed the wall panels, floorboards and roofing material, doing so he said to gain access to the wiring that he had fitted, in order to remove it. He was found guilty.

Without Lawful Excuse This element is dealt with in the CDA 1971, s 5(2) and (3).

The CDA 1971, s 5(2)(a) operates where the defendant believes that the owner would have consented to the damage.

The CDA 1971, s 5(3) says that the defendant's belief in the CDA 1971, s 5(2) need not be reasonable. It is only necessary for it to be honestly held.

In Jaggard v Dickinson [1980] Crim LR 717 (QBD, the court confirmed that the test was subjective. Dickinson broke a window in the drunken belief that the house was that of a friend with whom she was staying. Applying the CDA 1971, s 5(3), the court held that Dickinson was entitled to the defence under the CDA 1971, s 5(2)(a), irrespective of whether the belief was reasonable, even, as here, where it resulted from the defendant's intoxication.

Provided the defendant honestly believes that the owner of the property has or would have consented to the damage to property, the defendant's motive for causing the damage is irrelevant to the CDA 1971, s(5)(2)(a), even where the motive is to perpetrate a fraud. Criminal damage is not an offence of dishonesty.

R v Denton [1982] 1 All ER 65 FACTS: The owner of a factory in financial difficulties had apparently said to D: 'There is nothing like a good fire for improving the financial circumstances of a business'. D took this as an instruction to set fire to the factory, which he did. HELD: His conviction for arson was quashed, the Court of Appeal holding that he was entitled to the CDA 1971, s 5(2)(a) defence.

In Blake v DPP [1982] 1 All ER 65, the defendant attempted to rely on the CDA 1971, s 5(2)(a) defence using a novel argument. During a demonstration protesting about the use of military force by the allies in Iraq and Kuwait, Blake, a vicar, used a marker pen to write a Biblical quotation on a concrete pillar at the Houses of Parliament. He appealed against his conviction for criminal damage, claiming, inter alia, that he was carrying out the instructions of God. He argued that he had lawful excuse under the CDA 1971, s 5(2)(a) in that he believed God to be the one entitled to consent to the damage. He also argued that the CDA 1971, s 5(2)(b) applied as he had damaged the property to protect the property of others (for the court's ruling on this issue, see below). The QBD dismissed his appeal, holding that a belief, however powerful, genuine and honestly-held, that God had given consent was not a lawful excuse under the domestic law of England.

The CDA 1971, s 5(2)(b) operates where the defendant acts to protect his or another's property. The section relates only to the protection of property.

In R v Baker & Wilkins [1997] Crim LR 497, a mother could not raise the CDA 1971, s 5(2)(b) defence to a charge of criminal damage to a door that she had kicked open in order to rescue her child from a perceived threat by her estranged husband. The court held that the child did not constitute 'property' for the purposes of the CDA 1971, s 5(2)(b). If it had been a pet dog or cat, then the case might have been different, as these are property. For example, letting a person's pet parrot out of its cage could be criminal damage or theft of the bird.

Johnson v DPP [1994] Crim LR 673 FACTS: Johnson, a squatter in a council house, damaged a door while attempting to fit locks in the house. Johnson was charged with criminal damage and raised the CDA 1971, s 5(2)(b) defence on the grounds that there had been a high number of thefts in the area, and that he had therefore acted to protect his property. HELD: The Queen's Bench Division upheld his conviction on the grounds that he did not believe his property was in immediate need of protection.

There are four requirements for the s5(2)(b) defence.
(a) The defendant must act to protect property.
(b) s5(2(b)(i) The accused must believe that the property was in immediate need of protection (subjective test).
(c) s5(2)(b)(ii) The accused must believe that the means of protection adopted are reasonable.
(d) The damage caused by the accused must be (objectively) capable of protecting the property.

R v Hunt [1977] Crim LR 740
FACTS: In order to demonstrate the inadequacy of the fire alarm in a block of flats, Mr Hunt started a fire in a bedroom in a deserted part of the block. He pressed the fire alarm, which did not work. He then called the fire brigade. HELD: The Court of Appeal, rejecting the defence under the CDA 1971, s 5(2)(b), introduced an objective element into the defence. The court held that it was not sufficient that the accused intended to prevent further damage to property (as statutory language suggests) but also required that the act be objectively capable of protecting the property from damage.

In Blake v DPP (discussed above) the defendant put forward the additional argument that he was entitled to rely on the CDA 1971, s 5(2)(b) because he had acted to protect property in the Gulf States. Applying the objective test from Hunt, the court held that his actions were not capable of having this effect.

The objective test was confirmed again in R v Hill and Hall (1998) 89 Cr App R 74. In that case, the accused, a nuclear protestor, was arrested outside a nuclear submarine base. She was in possession of a hacksaw blade, which she intended to use to cut through the wire. She was charged under the CDA 1971, s 3 and unsuccessfully raised the defence under the CDA 1971, s 5(2)(b) that she was acting in order to persuade the Americans to leave the base, to reduce the threat of a nuclear strike, and thus protect her property. The court held that cutting the wire was far too remote from the eventual aim of protecting property to satisfy the test.

The CDA 1971, s 5(5) preserves the availability of the general defences to criminal offences, e.g. prevention of crime, self-defence, and duress/necessity.

The CDA 1971, s 1(2) provides:

'A person who without lawful excuse destroys of damages any property, whether belonging to himself or another—

1. intending to destroy or damage any property or being reckless as whether any property would be destroyed or damaged; and
2. intending by the destruction or damage to endanger life of another or being reckless as to whether the life of another would be thereby endangered;

shall be guilty of an offence.'

Take care to note that, as a matter of actus reus, it is irrelevant whether the life of another was actually endangered. See the case of R v Sangha [1988] 2 All ER 385

In R v Sangha, Mr Sangha set fire to some furniture in a flat. There was no danger to the occupants since they were not present at the time. There was no danger to the occupants of adjacent flats because of the special construction of the building. The Court of Appeal upheld the defendant's conviction on the basis, inter alia, that the issue was whether the accused intended or was reckless as to whether life might have been endangered, not whether life was actually endangered.

R v Dudley [1989] Crim LR 57 (CA) FACTS: Dudley had a grievance against the J. family. He consumed drink and drugs and threw a fire bomb at their house. The fire was extinguished by the J. family and only trivial damage was caused. D’s counsel claimed that it must be proved that he intended to endanger life or had been reckless as to whether life was endangered by the actual damaged caused and that as the damage caused was not great, he could not have been reckless as to endangering life. HELD: The Court of Appeal disagreed. The words ’destruction or damage’ in s1(2)(b) referred back to the destruction or damaged intended or as to which there was recklessness, not to the destruction or damage actually caused.

The Danger to Life Must Arise from the Damaged Property

R v Steer [1988] 1 AC 111 (HL) FACTS: The defendant had fired three shots through a window. HELD: This did not constitute the offence under the CDA 1971, s 1(2) because the lives had been endangered by the bullets fired and not by the damaged property. It was held that there had to be a causal link between the damage to property and the danger to life.

R v Webster [1995] 2 All ER 168, FACTS: The defendants had pushed a coping stone from a bridge onto a train, which had hit a carriage showering the passengers with debris from the roof. The conviction had been based on a direction that intent to endanger life by the stone falling on a passenger would suffice. HELD: The court substituted a conviction based on recklessness (per Taylor CJ):

'If the defendant's intention is that the stone itself should crash through the roof of a train or motor vehicle and thereby directly injure a passenger, or if he was reckless only as to that outcome, the section would not bite. If, however, the defendant intended or was reckless that the stone would smash the roof of the train or vehicle so that metal or wood struts from the roof would or obviously might descend upon a passenger, endangering life, he would surely be guilty. This may seem to many a dismal distinction.'

If the damage is caused by fire, the risk to life will always be from the damaged property. Lord Bridge of Harwich pointed out in R v Steer:

'It is not the match and the inflammable materials, the flaming firebrand or any other inflammatory agent which the arsonist uses to start the fire which causes danger to life, it is the ensuing conflagration which occurs as the property which has been set on fire is damaged or destroyed. When [whether] the victim in the bedroom is overcome by the smoke or incinerated by the flames as the building burns, it would be absurd to say that this does not result from the damage to the building.'

The CDA 1971, s 1(3) provides:

'Any offence committed under this section by destroying or damaging property by fire shall be charged as arson.'

The CDA 1971, s 2 provides:

'A person who without lawful excuse makes to another a threat, intending that that other would fear it would be carried out,—

1. to destroy or damage property belonging to that other or a third person; or
2. to destroy or damage his own property in a way which he knows is likely to endanger the life of that other or third person; shall be guilty of an offence.'

The CDA 1971, s 3 provides:

'A person who has anything in his custody or under his control intending without lawful excuse to use it or cause or permit another to use it—

1. to destroy or damage any property belong to some other person; or
2. to destroy or damage his own or the user's property in a way which he knows is likely to endanger the life of some other person; shall be guilty of an offence.'

An assault is committed when the accused 'intentionally, or recklessly, causes another person to apprehend immediate and unlawful personal violence': Fagan v MPC [1969] 1 QB 439. The House of Lords confirmed this definition of the offence in the case of R v Ireland; Burstow [1998] AC 147..

The defendant must do something to make the victim apprehend (i.e. anticipate or believe) he will suffer immediate and unlawful personal violence. There is no need for the defendant to have actually applied force or make physical contact for the offence to be committed. Some words or physical movement from him, causing the victim to think that he is about to be struck, (e.g. raising his fist towards the victim) would be sufficient.

The defendant must cause the victim to believe he can and will carry out the threat of force. R v Lamb [1967] 2 QB 981 (CA) FACTS: Two teenage boys were playing with a revolver. This had two bullets in it, neither of which was opposite the barrel. Believing that this meant the gun was safe, the defendant pointed it at his friend and pulled the trigger. His friend was shot dead. HELD: No assault had taken place, since the victim at whom the gun was pointed did not fear the possible infliction of violence because he did not believe the gun, with which they were playing, would fire.

If the victim is caused to apprehend such a threat, it is irrelevant that the defendant does not in fact have the means to carry out that threat. Logdon v DPP [1976] Crim LR 121 FACTS: The defendant showed the victim a pistol in a drawer, saying that it was loaded and declaring that he would hold her hostage. The defendant alone knew that the gun was a replica and unloaded, but his actions and words caused the victim to believe otherwise. HELD: The defendant was found to have committed an assault against the victim.

In R v Wilson [1955] 1 All ER 744 Lord Goddard stated that the words 'get out the knives' would, on their own, be sufficient to constitute an assault. This opinion was merely obiter. The issue does appear to have been resolved in the decision on R v Ireland; Burstow [1998] AC 147. Technically, on this issue, the comments made by their Lordships were obiter since the defendants in these two cases had repeatedly made silent telephone calls to their victims. No words had been spoken. Lord Hope of Craighead believed that silence conveyed a message to the victim and as such was capable of forming the basis of an assault.

Words spoken can also negate an assault. In Tuberville v Savage (1669) 1 Mod Rep 3, the defendant placed his hand on his sword and said, 'If it were not assize-time, I would not take such language from you'. The action of putting his hand on the sword was threatening but was found to be negated by his words, which clearly implied that no physical action would be taken because the judges were in the vicinity.

The victim must believe that immediate violence will be inflicted upon him: therefore, fear that the force might be applied sometime in the future would be insufficient. However, the courts have developed a rather generous interpretation of 'immediacy'.

The Court of Appeal, in the case of Ireland, suggested that 'violence' could include a threat of psychological as well as physical damage. This view was expressly rejected by Lord Hope in the House of Lords. It would appear that, where the apprehension is of immediate psychological harm, charges under other statutes, such as the Protection from Harassment Act 1997 (study of which is outside the remit of this course), may be more suitable. It is, therefore, clear that, for an assault, the victim must apprehend physical violence.

It should be noted that, where the assault results in psychological harm which is more than trivial, the defendant will be liable for the more serious offence under the Offences Against the Person Act 1861 (OAPA 1861), s 47

The Court of Appeal in R v Venna [1976] QB 421 held that the mens rea for assault is intention or recklessness as to causing the victim to apprehend immediate and unlawful personal violence.

The case of R v Savage; Parmenter [1992] 1 AC 714 (HL) confirmed the view that Cunningham recklessness (as now set out in R v G) must be established for any assault charge based upon recklessness.

A battery is 'the actual intended use of unlawful force to another person without his consent': Fagan v MPC [1969] 1 QB 439. The House of Lords confirmed this definition in the case of Ireland and further confirmed that it includes the reckless application of force.

Force includes the merest touching. In Collins v Wilcock [1984] 3 All ER 374 Goff LJ stated:

'The fundamental principle, plain and incontestable, is that every person's body is inviolate … Any touching of another person, however slight may amount to a battery.'

R v Thomas (1985) 81 Cr App R 331:

'... there could be no dispute that if you touch a person’s clothes while he's wearing them that is equivalent to touching them.' (Per Ackner LJ.)

The application of force need not be aggressive. Faulkner v Talbot [1981] 3 All ER 468 HELD: A battery is an intentional touching of another person without the consent of that person and without lawful excuse. It need not necessarily be hostile, or rude, or aggressive as some of the cases seem to indicate (Lord Lane CJ).

The force need not be applied directly. Most batteries are inflicted directly e.g. by the defendant hitting the victim with or without a weapon or throwing a missile at the victim. However, a battery can be indirect. R v Martin (1881) 8 QBD 54 FACTs: The defendant closed the exit doors of a theatre. As the people were about to leave, he turned off the lights and panic ensued. HELD: This was an indirect battery. The court also gave the example of D digging a pit which V then falls into as being an indirect battery.

DPP v K [1990] 1 WLR 1067 FACTS: K was 15. He splashed some acid on to his hand during a chemistry lesson and he asked for permission to go and wash his hand because it was sore. He took with him a boiling tube of concentrated acid. He poured some of the acid onto a piece of paper, but hearing footsteps outside, he panicked and poured the rest of the acid into the upturned nozzle of a hot air hand/face drier. The footsteps receded and he re-joined the chemistry lesson intending to return later to deal with the acid in the drier. Another pupil used the drier and the acid was ejected on to his face, causing scarring. HELD: Although he was acquitted because of a lack of mens rea, the Court of Appeal stated that this had satisfied the actus reus of battery.

In R v Venna [1976] QB 421 (CA) James LJ stated:

'In our view the element of mens rea in the offence of battery is satisfied by proof that the defendant intentionally or recklessly applied force to the person of another … We see no reason in logic or law why a person who recklessly applies physical force to the person of another should be outside the criminal law …'

Assault Occasioning Actual Bodily Harm The OAPA 1861, s 47 provides: 'Whosoever shall be convicted on indictment of any assault occasioning actual bodily harm shall be liable … to be imprisoned for any term not exceeding five years.'

There must be an 'assault'. This has been interpreted to mean that there must be either an assault or battery (DPP v Little [1992] QB 645 (DC) and R v Ireland; Burstow [1998] AC 147). Both the actus reus and the mens rea of either an assault or battery must be established.

The assault or battery must 'occasion actual bodily harm'. In other words, the assault or battery must result in actual bodily harm being caused to the victim. Normal principles of causation apply

DPP v Santana-Bermudez [2003] EWHC 2908 (QBD). FACTS: The respondent was convicted of assault occasioning actual bodily harm. A police officer asked the respondent if he had any needles or 'sharps' on him. The respondent replied 'No'. The officer then searched the respondent's jacket pockets, where her finger was pierced by a hypodermic needle. HELD: Although the respondent had not done an act which had directly caused the injury, the Divisional Court applied R v Roberts and R v Miller and held that he had created a danger (by exposing the officer to a risk), which he had failed to avert. Thus, the conviction was upheld.

In R v Miller [1954] 2 QB 282, the definition of actual bodily harm was said to include 'any hurt or injury calculated to interfere with the health or comfort of the victim'. It was said that the hurt need not be serious or permanent but must be more than transient and trifling. The court emphasised that in Miller the harm which had been excluded was that which was transient and trifling, not transient or trifling.

In R v Chan-Fook [1994] 1 WLR 689 actual bodily harm was held to include psychiatric injury, although Hobhouse LJ emphasised:

'… it does not include mere emotions such as fear or distress or panic nor does it include, as such, states of mind that are not themselves evidence of some identifiable clinical condition.

In T v DPP [2003] Crim LR 622, a momentary loss of consciousness was held to be capable of amounting to actual bodily harm as it involved an injurious impairment of the victim's sensory functions.

DPP v Smith [2006] EWHC 94 (Admin) FACTS: Here the defendant, Mr Smith, cut off his estranged girlfriend's ponytail and some further hair from the top of her head. It was argued on behalf of Mr Smith that this act did not amount to 'actual bodily harm', in accordance with the legal definition provided in Miller, and as there was no evidence to suggest that this act had caused the victim psychiatric or psychological harm, there was no case to answer. HELD: Despite the fact that the defendant’s actions left no mark on the body or break of the skin, and that essentially he had cut 'dead tissue', it was still part of the body, which by cutting had amounted to an assault. As Sir Igor Judge stated:

'Even if, medically and scientifically speaking, the hair above the surface of the scalp is no more than dead tissue, it remains part of the body and is attached to it. While it is so attached … it falls within the meaning of "bodily" in the phrase "actual bodily harm". It is concerned with the body of the individual victim.'

In the OAPA 1861, s 47 no mens rea is required for the actual bodily harm. All that is required is the mens rea for the assault or the battery.

In R v Savage, R v Parmenter 1992] 1 AC 699. Lord Ackner stated:

'Can a verdict of assault occasioning actual bodily harm be returned upon proof of an assault together with proof that actual bodily harm was occasioned by the assault, or must the prosecution also prove that the defendant intended to cause some actual bodily harm or was reckless as to whether such harm would be caused? The verdict of assault occasioning actual bodily harm may be returned upon proof of an assault together with proof of the fact that actual bodily harm was occasioned by the assault. The prosecution are not obliged to prove that the defendant intended to cause some actual bodily harm or was reckless as to whether such harm would be caused.'

Malicious Wounding or Inflicting Grievous Bodily Harm The OAPA 1861, s 20 provides:

'Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument, shall be guilty of an offence …'

Note that s 20 creates two offences, one of malicious wounding, the second of maliciously inflicting grievous bodily harm.

In C (a minor) v Eisenhower [1984] QB 331 it was held that the rupture of blood vessels internally is not sufficient to constitute a wound. There must be a break in the continuity of both layers of the skin. Both the dermis and epidermis must be broken. It is important to realise that if there is proof of a wounding, the actual injury need not be severe; any breaking of the skin will suffice.

The word ‘wound’ as in the section is a verb meaning to cause a wound (here a noun). Normally the wounding will be such that causation will not be an issue. Occasionally, however, it may be, for example where D chases the victim, causing him to fall and cut his head or where D throws a knife and V tries to intercept it.

Infliction This word has proved difficult to determine in the past due to questions as to what was necessary to amount to an 'infliction', i.e. was an assault a pre-requisite? However following the case of R v Wilson [1984] AC 242, it was decided that there could be an infliction of grievous bodily harm contrary to the OAPA 1861, s 20 without an assault being committed.

This can be further evidenced by the case of R v Burstow, where the accused made nuisance telephone calls, but never actually attacked the victim. The House of Lords upheld the conviction for inflicting grievous bodily harm (psychological injury). The House of Lords held that 'inflict' did not require an assault to be committed first. Essentially therefore infliction now bears the same meaning as 'cause' and the normal rules of causation should apply.

In DPP v Smith [1961] AC 290, the House of Lords held that the words 'grievous bodily harm' simply mean 'really serious harm'. In Saunders [1985] Crim LR 230, it was decided that it would not be a misdirection to leave out the word 'really'; the words 'serious harm' would suffice.

Psychiatric injury may amount to GBH (Ireland) if sufficiently serious, but its cause and effect will need to be proved by expert evidence, as in all cases of alleged psychiatric injury

In R v Bollom (2004) 2 Cr App R 6, the Court of Appeal held that, in deciding whether or not the injuries sustained were 'grievous', the jury should consider the effect of the injuries on the victim, taking into account the victim's age and health. You can also look at the totality of the injuries. This case concerned a baby with endless cuts and bruises which on their own would not have been enough but taken together, could amount to serious harm

In R v Savage; Parmenter [1992] 1 AC 699, the House of Lords reaffirmed the interpretation of maliciously as laid down R v Mowatt [1968] 1QB 421:

'It is quite unnecessary that the accused should have foreseen that his unlawful act might cause physical harm of the gravity described in the section, i.e. a wound or serious physical injury. It is enough that he [foresaw] ... that some physical harm to some person, albeit of a minor character, might result.' (Per Lord Diplock.)

Wounding or Causing Grievous Bodily Harm with Intent The OAPA 1861, s 18 provides:

'Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause grievous bodily harm to any person, with intent … to do some grievous bodily harm to any person … shall be guilty of an offence …'

Again, note that the OAPA 1861, s 18 creates two offences: one of malicious wounding with intent to cause GBH, the second of maliciously inflicting grievous bodily harm with intent to cause GBH.

Traditionally, it was accepted that the word 'cause' was wider than that of 'inflict' used under the OAPA 1861, s 20. However, since the case of Wilson (see section 6.4.2), there appears to be little significance in the use of different words under the OAPA 1861, ss 20 and 18 and the normal rules of causation apply.

The mens rea element is the key distinguishing feature between the OAPA 1861, ss 18 and 20. Under the OAPA 1861, s 20 it is enough to intend or foresee (i.e. be reckless) some harm, however slight. Whereas, for the OAPA 1961, s 18 the defendant must actually intend to cause harm which amounts in law to grievous bodily harm (serious harm). Recklessness is not enough. Note, where the actus reus is a wound, the mens rea is still intention to cause GBH. Intention to wound is not enough.

The OAPA 1861, s 24 provides:

'Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, with intent to injure, aggrieve or annoy such person, shall be guilty of an offence, and being convicted thereof shall be liable to imprisonment for not more than five years.'

In R v Kennedy [2007] UKHL 38, the House of Lords stated that the OAPA 1861, s 23 (and, presumably, the OAPA 1861, s 24) creates three distinct offences: (a) administering to; (b) causing to be administered to; and (c) causing to be taken by any other person any poison or other destructive or noxious thing.

Offence (a) is committed where D administers the noxious thing directly to V, as by injecting V with the noxious thing, holding a glass containing the noxious thing to V's lips, or (as in R v Gillard (1988) 87 Cr App R 189 ---- see below) spraying the noxious thing in V's face.

Offence (b) is typically committed where D does not directly administer the noxious thing to V but causes an innocent third party to administer it to V. If D, knowing a syringe to be filled with poison, instructs the third party to inject V, with the third party believing the syringe to contain a legitimate therapeutic substance, D would commit this offence.

Offence (c) covers the situation where D causes the noxious thing to be taken by V. If D puts a noxious thing in food which V is about to eat and V, ignorant of the presence of the noxious thing, eats it, D commits this offence. The normal rules of causation will apply here.

Poison, destructive or noxious thing R v Marcus [1981] 2 All ER 833. FACTS: In this case 'poison, destructive or noxious thing' was broadly interpreted. It had been argued on behalf of the defendant that tablets she had administered were intrinsically harmless and could not become noxious for the purpose of the OAPA 1861, s 24 purely because of the amount given. HELD: In his judgment dismissing the appeal, Tudor Evans J stated a substance was noxious if it was hurtful, unwholesome or objectionable. This will depend on each case, and the jury should take into account all the circumstances including the nature of the substance and the quantity given.

With intent to injure, aggrieve or annoy It will be sufficient for the prosecution to prove that the defendant intended to injure, aggrieve, or annoy, either by the effects of the administration itself, or by some ulterior motive. In the case of R v Hill (1985) 81 Cr App R 206 (CA), Robert Goff LJ stated:

'We have no doubt that, in considering whether in any particular case the accused acted "with intent to injure", it is necessary to have regard not merely to his intent with regard to the effect which the noxious thing will have upon the person to whom it is administered, but to his whole object in acting as he has done. The accused may, in one case, administer the noxious thing with the intent that it would itself injure the person in question; but in another case he may have an ulterior motive, as for example when he administers a sleeping pill to a woman with an intent to rape her when she is comatose. In either case he will, in our judgment, have an intent to injure the person in question, within the words in the section.'

In R v Cato [1976] 1 All ER 260, the court considered whether heroin could be a noxious thing. Lord Widgery CJ stated:

'What is a noxious thing, and in particular is heroin a noxious thing? The authorities show that an article is not to be described as noxious for present purposes merely because it has a potentiality for harm if taken in an overdose … and it is clear on the authorities when looking at them that one cannot describe an article as noxious merely because it has that aptitude. On the other hand, if an article is liable to injure in common use, not when an overdose in the sense of an accidental excess is used but is liable to cause injury in common use, should it then not be regarded as a noxious thing for present purposes?'

The court decided that heroin was a 'noxious thing' even where it is administered to a person with a high tolerance to whom it is unlikely to do any particular harm. Heroin is 'noxious' because it is 'liable to injure in common use'. Although the proposition is given in the negative, the suggestion is that for a substance to be classified as a noxious thing for the OAPA 1861, s 23 it must be inherently dangerous.

So as thereby to endanger life or inflict grievous bodily harm This is an additional element of the actus reus under the OAPA 1861, s 23. The endangerment to life or infliction of GBH must result from the administration of the substance. The normal rules of causation will apply here. (See Chapter 2) No guidance has been give as to what is meant by endangerment to life here. GBH carries the same definition as under the OAPA 1861, ss 20 and 18 (see section 6.4.2).

GBH has the meaning of ‘really serious harm’ as defined in DPP v Smith [1960] 3 All ER 161.

R v Vickers FACTS: In Vickers, the defendant broke into a shop intending to steal from it. He was disturbed by the elderly lady who lived above the shop [1957] 2 QB 664. Vickers struck her and kicked her in the face, as a result of which she died. Vickers was convicted of murder. He appealed against his conviction on the grounds that the Homicide Act 1957 had removed an intention to cause grievous bodily harm as a head of mens rea for murder. The defence argued that, if Vickers intended to cause her grievous bodily harm, he was committing an offence under the Offences Against the Person Act 1861, s 18, i.e. another offence and therefore, under the Homicide Act, s 1, the offence of murder had to be disregarded. HELD: This argument was rejected by the Court of Appeal, which confirmed the mens rea as set out above.

'Malice aforethought', means:

1. an intention to kill (express malice); or
2. an intention to cause GBH (implied malice). R v Vickers [1957] 2 QB 664.

oblique intent:

1. this is only to be used in rare circumstances and when intention is the only form of mens rea for the offence, e.g. murder, GBH with intent (Offences Against the Person Act 1861, s 18);
2. this means that if the rules of the offence allows mens rea in the form of intention or recklessness then you must not refer to oblique intent. For example, if a defendant is charged with criminal damage and he does not directly intend to destroy/damage property, then you must consider whether he was reckless when he did so. Oblique intent should not be used as recklessness is so much easier to establish.

Lord Bridge, in R v Moloney [1985] 1 All ER 1025 (HL), made it clear that it was the jury's task to decide on the matter of intention. He stated that the word should be given its ordinary meaning and that judges should generally avoid defining the term intention, beyond explaining that it differs from 'desire' and 'motive'.

'The golden rule should be that, when directing a jury on the mental element necessary in a crime of specific intent, the judge should avoid any elaboration or paraphrase of what it meant by intent, and leave it to the jury's good sense to decide whether the accused acted with necessary intent, unless the judge is convinced that, on the facts and having regard to the way the case has been presented to the jury in evidence and argument, some further elaboration is strictly necessary to avoid misunderstanding.'

Case law has recognised that a defendant may 'intend' a result because it is the purpose of his act.

Therefore, if a defendant's purpose in acting is not to produce the actus reus of the crime with which he has been charged and intention is the only type of mens rea available, he may still be found to have an intention to commit that actus reus if he has oblique intent. This is where the consequence is not the defendant's purpose but rather a side effect that he accepts as an inevitable or certain accompaniment to his direct intention. The consequence here does not have to be 'desired'. Indeed, the defendant may even regret that this incidental consequence will occur. The need to refer to oblique intent is rare and should only be used if the facts require it.

However, in 1985, the House of Lords made it clear in R v Moloney that foresight of probability could never amount to intention. Lord Bridge gave the following direction in that case:

'First, was the death or really serious injury in a murder case (or whatever relevant consequence must be proved to have been intended in any other case) a natural consequence of the defendant's voluntary act? Secondly, did the defendant foresee that consequence as being a natural consequence of his act? The jury should then be told that if they answer yes to both questions it is a proper inference for them to draw that he intended that consequence …'

The lack of explanation of 'natural consequence' in Lord Bridge's suggested guidance to the jury led to confusion and further appeals in subsequent decisions. The Court of Appeal in R v Nedrick [1986] 1 WLR 1025 gave a clearer test:

'… (the jury) are not entitled to infer the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty and that the defendant appreciated that such was the case.' (Per Lord Lane CJ)

This test was adopted by the House of Lords in R v Woollin [1999] AC 82, where the current model direction to be given to the jury was said to be as follows:

'Where the charge is murder and in the rare cases where the simple direction is not enough, the jury should be directed that they are not entitled to find the necessary intention unless they feel sure that the death or serious bodily harm was a virtual certainty (barring some unforeseen event) as a result of the defendant's action and that the defendant appreciated that such was the case. The decision is one for the jury to be reached upon consideration of all the evidence.' (Per Lord Steyn.)

while a motive is not the same as intention, an individual can be taken to intend both their ends and the means through which they will achieve them.

Chandler v DPP [1964] AC 763 (HL) FACTS: The appellants had wished to demonstrate their opposition to nuclear weapons. They had planned a non-violent action to immobilise an aircraft at an RAF station for a period of six hours. They were convicted of conspiracy to commit a breach of the Official Secrets Act 1911, s 1, namely to enter a prohibited place for 'a purpose prejudicial to the safety or interests of the state'. HELD: On appeal against conviction, Radcliffe LJ agreed with the trial judge's direction to the jury that the appellants had made their entry for two separate purposes:

'… an immediate purpose of obstructing the airfield, and a further or long-term purpose of inducing or compelling the government to abandon nuclear weapons in the true interests of the state.'

Where the jury were satisfied that the appellant's immediate purpose was proven, they were right to find the appellants guilty, regardless of whether they thought the long-term purpose in itself beneficial. Their motive behind the immediate action was irrelevant, they still intended the method of achieving it.

Motive can be used as evidence of intention. Consider this in the context of poisoning offences under the Offences Against the Person Act 1861, s 24 (see Chapter 6.). Robert Goff LJ in the case of R v Hill (1985) 81 Cr App R 206 (CA), stated:

'We have no doubt that, in considering whether in any particular case the accused acted "with intent to injure", it is necessary to have regard not merely to his intent with regard to the effect which the noxious thing will have upon the person to whom it is administered, but to his whole object in acting as he has done. The accused may, in one case, administer the noxious thing with the intent that it would itself injure the person in question; but in another case he may have an ulterior motive, as for example when he administers a sleeping pill to a woman with an intent to rape her when she is comatose. In either case he will, in our judgment, have an intent to injure the person in question, within the words in the section.'

Unlawful homicide was defined by Coke (3 Inst 47) as: '… unlawfully killing a reasonable person who is in being and under the King's peace ….'

It may be necessary to determine when a person becomes 'in being'. Essentially, this is when a person is born alive and is capable of independent life.
The case of R v Poulton (1832) 5 C & P makes it clear that the child must be fully expelled from the mother’s body and born alive. '... the being born must mean that the whole body is brought into the world; and it is not sufficient that the child expires in the progress of the birth. Whether the child was born alive or not depends mainly upon the evidence of the medical men.' (Per Littledale J.)
See also the case of AG-Ref (No 3 of 1994 [1998] AC 245, where, following the stabbing of a pregnant woman in the abdomen, her child was born prematurely and subsequently died. The House of Lords held that the child was not a live person when stabbed and therefore this could not be murder.
However, the case of R v Reeves (1839) 9 C & P 25, indicated that it was not necessary for the umbilical cord between mother and child to have been cut.

R v Adebelajo [2014] EWCA Crim 2779 FACTS:Two men who killed Fusilier Lee Rigby on a Woolwich street because he was in the British army. They stated that they were fighting a war so were not under the Queen’s Peace. HELD: Lord Thomas CJ, said :The law is now clear. An offender can generally be tried for murder wherever committed if he is a British subject, or, if not a British subject, the murder was committed within England and Wales. The reference to "the Queen's peace", as originally dealt with in the cases to which we have referred, went essentially to jurisdiction.’

Factually, it must be proved that 'but for' the acts (or omissions) of the accused, the relevant consequence would not have occurred in the way that it did. In other words, if you eliminate the act of the defendant would the prohibited have occurred anyway?
R v White [1910] 2 KB 124 FACTS: W put poison in a drink intending to kill his mother. She was subsequently found dead. It was not clear on the evidence whether she had drunk any of the liquid from the glass. Medical evidence showed that she had died from heart failure, not from poisoning. HELD: W was therefore acquitted of murder, there being no causal link between the consequence and his act. However, he was guilty of attempted murder.

Therefore the law will check the culpability of the defendant before imposing liability and it will require that the defendant is the operating and substantial cause of the prohibited consequence: R v Pagett (1983) 76 Cr App R 279; R v Cheshire [1991] 3 ALL ER 670.

The Consequence Must be Caused by the Defendant's Culpable Act
R v Dalloway (1847) 2 Cox CC FACTS: The defendant was driving a horse and cart without holding the reins. A child ran in front of the cart, he was struck by one of the wheels and killed. It appeared on the evidence that, even if the defendant had been holding the reins, he could not have stopped the cart in time. HELD: If Dalloway had not been driving the cart, the child would not have been killed, and in that sense he 'caused' the death. However the court held it was necessary to go further and show that the death was due to the culpable element in his act – the negligence in not using the reins. Accordingly, D's conduct was not to blame for the killing and he was acquitted of manslaughter. See also R v Marchant [2004] 1 WLR 442, CA. In this case, a motorcyclist was killed when he was impaled on the front forks of a hay-bale tractor. It was held that, even if the tractor driver had covered the spikes as he was meant to, the impact with the tractor would have killed the biker anyway.

The Defendant's Act Need Not be the Only Cause of the Prohibited Consequence
R v Benge confirms that a defendant can still be liable even when other causes were present. R v Benge (1865) 4 F & F 504 FACTS: Benge was the foreman of some railway tracklayers. He thought that the next train was not due for several hours and so ordered the track to be taken up. He sent a man with a red flag down the track to stop any trains. However, this signalman did not go the correct distance and the driver of the train, it appeared, was not keeping a good look out. The train crashed and several people were killed. HELD: If the defendant's negligence mainly or substantially caused the accident, it was irrelevant that it might have been avoided if other persons had not been negligent. So long as it could be shown that the defendant was negligent and his negligence was a main/substantial cause of the crash, the subsequent negligence of the train driver and flag holder were immaterial.

The Defendant's Act Must be the 'Substantial' Cause of the Prohibited Harm
In R v Cato [1976] 1 WLR 110, it was held that substantial does not mean 'really serious'. It means an act (or omission) that is not a 'de minimus, trifling one'. Latterly, the courts have confirmed that D's act need not be a substantial cause, see R v Malcherek and Steel [1981] 1 WLR 690.

In R v Pagett (1983) 76 Cr App R 279, Robert Goff LJ said: '… in law the accused's act need not be the sole cause, or even the main cause, of the victim's death, it being enough that his act contributed significantly to that result.'

And in R v Kimsey [1996] Crim LR 35, it was held that it is sufficient that the accused's conduct was more than a minimal cause of the consequence (per trial judge, approved by Court of Appeal): '... you do not have to be sure that Kimsey's driving was a substantial cause of death, as long as you are sure that it was a cause and that there was something more than a slight or trifling link.'

The courts are reluctant to allow medical malpractice to break the chain of causation. R v Smith (1959) 2 QB 35 FACTS: Smith stabbed the victim during a fight at their barracks and pierced his lung. Another soldier tried to carry him to the medical station but dropped him twice on the way. On his arrival it was not realised how seriously ill the victim was and he received treatment that was not only inappropriate but positively harmful and he died a couple of hours later. HELD: Smith was convicted of murder, because it was held that his actions remained a substantial and operating cause. The medical negligence, while a cause, was not a sufficient cause to sever the chain of causation.

R v Cheshire [1991] 3All ER 670 FACTS: Cheshire shot the victim twice. Following extensive surgery the victim developed respiratory problems and required a tracheotomy tube to be inserted into his windpipe. Scar tissue formed over the tracheotomy whole and the victim found it difficult to breath. The medical staff dismissed this as anxiety. Eventually his windpipe became completely blocked and he died. At the time of his death, the victim's original wounds had healed. HELD: The Court of Appeal held that poor medical treatment did not break the chain of causation. Beldam LJ:

‘Even though negligence in the treatment of the victim was the immediate cause of his death, the jury should not regard it as excluding the responsibility of the defendant unless the negligent treatment was so independent of his acts, and in itself so potent in causing death, that they regard the contribution made by his acts as insignificant.’

Intervention of Third Parties This has been considered in a number of cases and is illustrated by the case of R v Pagett (1983) 76 Cr App R 279. R v Pagett FACTS: Using his pregnant girlfriend as a shield, Pagett shot at the police, who were attempting to arrest him for various serious offences. The police returned fire and killed the girl. The judge, directing the jurors on causation, stated that they had to be sure that the appellant had fired first at the officers and that that act caused the officers to fire back, with the result that the girl was killed. The jury also had to be satisfied that, in doing so, the police acted reasonably, either by way of self-defence or in the performance of their duties as police officers. The judge said that if they were not sure of those facts then they should acquit because the chain of causation, linking the Pagett's unlawful acts to the girl's death, would be broken. The jury convicted Pagett, who appealed against his conviction. HELD: The Court of Appeal rejected the appeal and held that there may only be a break in the chain of causation if the actions of the third party were 'free, deliberate and informed. This was not held to be the case here.' Goff LJ was of the opinion that the police officers' actions were neither free nor deliberate. Instead, he considered it to be a reasonable act performed for the purpose of self- preservation in response to the appellant's act.

The 'thin skull' rule The 'thin skull' rule provides that a person who inflicts harm on another cannot escape liability if the victim, owing to some pre-existing infirmity or peculiarity, suffers greater harm than would have been expected as a result of what the accused has done. Put simply, the defendant must take the victim as he finds him. R v Hayward [1908] 21 Cox 692 FACTS: Hayward, who was in a rage, threatened his wife and chased her into the road. She collapsed and died. She was suffering from an abnormal thyroid condition, such that any combination of physical exertion and fear might lead to death. HELD: It was held that Hayward had caused her death because he had to take her condition as he found it.

When under attack or the threat of attack from the defendant, it is plausible to consider that the victim may attempt to escape from the attack or threat. However, it has been necessary for the law to consider when such escape attempts can amount to a novus actus interveniens. The issue falls around the question as to whether the escape was foreseeable by the reasonable man. If it is not, then the defendant is entitled to an acquittal and is no longer deemed to be the legal cause of death.