‘Rights’ have no single definition. Wesley Hohfeld devided rights into ‘privileges’, ‘claims’, ‘powers’ and ‘immunities’.
There are currently 3 stages involved when considering the development of human rights protection in the UK:
Currently:
Additional Powers:
Most often refers to the judges who sit in the higher courts – the House of Lords. Independence of the judiciary features:
Civil contempt:
Criminal contempt:
R v. New Statesman (Editor), ex parte DPP (1928)
Held that bringing the integrity of a judge into disrepute constitutes a contempt of court.
Morris v. Crown Office (1970)
Judge sentenced the ringleaders of a group of students who disrupted a sitting of the High Court, to three months’ imprisonment. This was upheld on appeal.
Sunday Times v. United Kingdom (1979)
Sunday Times was prevented by injunction from publishing an article on a drug scandal at a time when the parties to the case were engaged to reach a settlement. Case went to European Court of Human Rights. Held that UK law was found to breach Article 10, ECHR (right to freedom of expression). This led to passage of the Contempt of Court Act 1981.
The law on publications by newspapers, etc. is now governed by the Contempt of Court Act 1981, which operates on strict liability – actus reus is sufficient for conviction.
Sections 1 and 2 describe the strict liability rule and the limitation of scope of strict liability.
The body which formulates and implements policy. Used to refer extensively to the central government.
The executive is led by the PM. He is responsible for the overall conduct of the government and for the appointment of the ministers who head each of the departments.
Comprises the ministers who head each of the departments (Secretaries of States) together with ministers responsible for government business in the Commons (Leader of the House) and the Lords (Lord Privy Seal).
Each department has a minister who takes responsibility for the way in which the department functions.
Ministers are bound by two constitutional conventions. Since ministerial responsibility are constitutional conventions, they are ‘non-legal’ rules and are thus unenforceable by the courts. Examples are not decided cases by are simply ‘political events’.
When a decision is reached by the Cabinet, all ministers must publicly support the decision, even if they had opposed it in the Cabinet discussions. If a minister cannot do this, then they must resign from the government. This allows the government to present a united front.
This doctrine only applies to the front bench of each party – ministers and ’shadow’ ministers. The backbench MPs are not bound by the doctrine and so can disagree.
NHS Charges
3 ministers resigned when the government decided to impose charges for some health services.
The ‘Westland affair’
Defence minister resigned when he was outvoted, as he felt he couldn’t publicly support the decision.
If there is a sufficiently serious error that has occurred in a minister’s department, he should assume individual ministerial responsibility and ultimately, resign. This has changed dramatically over the years, such that it is now highly unusual for a minister to resign because of failings within their department.
The ‘Crichel Down affair’
A plot of land which had been requisitioned by the army during WWII was transferred to the Ministry of Agriculture after the war. The original owners’ claim to reclaim the land was mishandled by the Ministry. As a result, the minister resigned.
However, there are many ministers who have held on to their jobs despite widespread calls for them to resign.
It is important to note the difference between resignations due to personal conduct and errors of departments.
There is a shift under the current government, towards devolution – the process by which power is given or ‘devolved’ from Westminster to Scotland, Wales and Northern Ireland, giving them greater control over their own affairs and the power to make their laws in certain areas. This is not full independence, as Westminster retains power over key areas such as defence.
Important to note that devolution is not the same for Scotland, Wales and Northern Ireland.
Bicameral legislature composing two chambers – House of Commons and the House of Lords.
This is the dominant chamber, as it is elected and so has the democratic mandate. The party with the most seats in the Commons forms the government. It applies the ‘first past the post’ election system, which favours the incumbent government, but many argue that a proportional system would be fairer.
Also known as the ’second chamber’. Lords are not elected, but appointed. Often referred to as a ‘revising chamber’, they are there to advise the Commons and serve as a ‘voice of reason’.
There have been many calls for reform and to modernise the upper House, but there is little agreement on the best way to do it.
Parliament has two key functions: legislation and scrutiny.
There are three types of bills:
The legislative process:
Parliament Act 1911, s. 2(1) provides that the House of Lords shall not be able to reject a Bill proposed by the House of Commons. They can only delay it.
Legislation directly from Acts of Parliament.
Acts of Parliament that gives power to another body (mostly within the executive) to make rules and regulations.
Parliament scrutinises the work of the executive to ensure the government is functioning effectively and not abusing its powers. This is achieved by a number of mechanisms.
It is important to note that some methods of holding the government to account are more effective than others. In addition, there might be some benefits to these ineffective methods, as a confident performance would raise the morale of their party.
Since Parliament is sovereign, its decisions and the rules and procedures it makes up for itself should not be questions by the courts.
Bradlaugh v. Gossett (1884)
B had been elected by was an atheist and so would not sweat the parliamentary oath to God. The House of Commons refused to allow him to take his seat.
Courts held that the jurisdiction of the House of Commons over its members was absolute.
R v. Graham-Campbell and others, ex parte Herbert (1935)
Alcohol was sold within the House of Commons despite the fact that Parliament did not have a licence as required by law.
The court held that this fell within the privileges of the House so that no court of law had jurisdiction to interfere.
Any breach of privilege amounts to contempt which can lead to Parliament imposing a punishment on MPs. Contempt of Parliament includes:
MPs have freedom from arrest from civil arrest – not arrests relating to criminal offences. Therefore this privilege only applies to arrest for contempt of court (non-payment of damages in civil cases). This applies 40 days before and after Parliamentary sessions, and had greater importance in the days of debtor’s prisons, where a person could be imprisoned for non-payment of a debt.
MPs are immune from suit for defamation (libel or slander) for anything said as part of ‘proceedings in Parliament’. This allows Parliament to function more efficiently by permitting MPs to speak their mind.
Dillon v. Balfour (1887)
Midwife tried to sue a minister for slander over words said in Parliament about her. The court refused to hear the action as the statement was covered by parliamentary privilege.
The privilege enjoyed by MPs is absolute – does not matter if the statement was deliberate and malicious. However, it only applies to ‘proceedings in Parliament’. The position is not so clear with communications which move outside the buildings themselves.
Rivlin v. Bilainkin (1953)
Certain ‘defamatory’ statements were posted in letters to a number of MPs. These letters were posted within the House of Commons’ post office.
It was held that the allegations were purely personal in nature and didn’t concern the business of the House, so were not covered by privilege.
The ‘Strauss Case’ (1957-58)
George Strauss MP wrote to a minister complaining about the activities of the London Electricity Board. The minister forwarded the letter to the Board, who threatened to sue Strauss for libel.
The House of Commons Committee for Privileges held that this fell within ‘proceedings of Parliament’ and was therefore, privileged. A vote within the House of Commons rejected this and held it was not.
It thus appears that ‘proceedings in Parliament’ is limited only to communications directly concerned with the business of Parliament
Absolute privilege conferred on papers produced by the House or authorised by the House – Parliamentary Papers Act 1840
The position is different for unrelated third parties, like newspapers, which publish what has been said in Parliament. They can only rely on the comon defence of qualified privilege, which requires that the statement be fair, accurate and without malice. There is also a defence of qualified privilege under the Defamation Act 1996, s. 15(1).
Besides constitutional doctrines such as the separation of powers, rule of law and parliamentary sovereignty, there are even more fundamental principles such as democracy and accountability.
The UK is a democracy, where the will of the people is reflected in their election of MPs to represent their views in Parliament and to legislate in their name. This shift from an all-powerful monarchy to a democracy represents one of the most important influences on the constitution over the past 300 years. This process is still ongoing – proposals for an elected House of Lords to replace appointment by the Prime Minister.
To be an effective democracy, those in power must be accountable so that they cannot abuse their powers. Civil servants are accountable to the minister who heads their department and the minister is accountable to Parliament. In this way, much of the operation of the constitution is concerned with making sure that the mechanisms for ensuring accountability work properly.
It is important to always consider accountability when writing about the operation of the state.
In the past, power to control the state was entirely in the hands of the monarch. This led to frequent abuses of power, and it was for this reason that the constitution divides the power into different organs of state. The doctrine, however, recognises that the division of power between the various organs of state is not always amicable, and tensions form, especially between the executive and the courts.
Unlike the USA, which have very rigid separation of powers between the organs of the state, the UK adopts a soft separation of powers. This allows more flexibility, which prevents constitutional deadlock by allowing the various elements to work better together.
Power in the UK is divided into the legislature, the executive and the judiciary. The powers of the monarch are now mostly symbolic.
In the UK, the same people can work in different organs of state.
The Queen, in theory, sits in all three organs of state, with the Queen’s government, the Queen in Parliament, and the Queen’s judges. However, the monarch is largely symbolic, and does not impact on the overall division of power within the state.
A more important overlap is that ministers who are members of the cabinet are also frequently members of Parliament. This is an overlap of the executive into the legislature.
Judges who sit in the House of Lords are also members of the House of Lords in parliament. However, they do not participate in purely political debates as this would compromise their judicial independence. It is necessary to distinguish between the House of Lords as a court and the House of Lords as a legislative chamber.
Formally, prior to the Constitutional Reform Act 2005, the Lord Chancellor was a member in all three organs of state – a member of the Cabinet, the Speaker of the House of Lords, and the head of the judiciary.
After the CRA 2005, however, the speaker role has been replaced by a Lord Speaker, and the head of the judiciary has been replaced by the Lord Chief Justice, and judicial appointments are now made by a Judicial Appointments Commission. It also includes the creation of a Supreme Court.
As mentioned earlier, there is sometimes conflicts which arise from the separation of powers.
M v. Home Office (1994)
M arrived from Zaire, claiming political asylum. His application was refused, and the Home Secretary ordered him to be deported. The High Court ordered the Home Secretary not to proceed until the court had considered the case. The Home Secretary ignored the court order and M was deported.
The Home Secretary was held to be in contempt of court for refusing to comply with a court order. The fact that he was a minister of the Crown did not place him above the law and so the court could restrain him in the exercise of his powers (rule of law). However, no punishment was imposed.
R v. Secretary of State for the Home Department, ex parte Anderson (2003)
Anderson was convicted of two murders and received the mandatory life sentence. The trial judge recommended that he serve at least 15 years, but the Home Secretary increased this to 20 years.
It was was the courts and not the Home Secretary to set sentences. This was a judicial function and the involvement of a politician contravened the right to a fair trial.
R v. Secretary of State for the Home Department, ex parte Fire Brigades Union (1995)
The Home Secretary did not introduce a statutory scheme five years after the Criminal Justice Act 1988 was imposed. It decided, instead, to amend the original scheme.
It was held that when an Act of Parliament allows a minister to decide when the provisions should come into force, this is not the same as allowing the minister to ignore the Act altogether. It is for Parliament to change the statute, not the minister.
It can be seen that the separation of powers results in potential conflict, especially between the judiciary and the executive, since each organ is determined to retain their powers.
The rule of law is a set of underlying principles which governs how the legal system should operate and how the powers of the state should be controlled. There are numerous definitions to the rule of law, and it is important to consider each and how they appear to be reflected in the system.
The most important principle is that no one, not even the state, was above the law – Entick v. Carrington (1765)
Although there is separation of powers, one body, ultimately, has to have control to prevent deadlock. In a democracy, that body should be the elected body of Parliament.
The most commonly applied definition of parliamentary sovereignty comes from Dicey:
If there were areas of law which Parliament could not change, then it would suggest some higher power controlling Parliament.
His Majesty’s Declaration of Abdication Act 1936
In 1936 King Edward VIII wished to marry American divorcee Wallis Simpson. In order to marry, Edward had to give up his throne, but this required an Act of Parliament to take effect. In this way, the monarch was subject to Parliament.
Union with Ireland Act 1800
This united England and Ireland. This showed Parliament’s powers in being able to alter the physical limits of the state and the land which it covered.
Parliament Act 1911
In 1909, the House of Lords refused to pass the budget approved by the House of Commons. This was seen as a group of unelected Lords challenging the democratic House of Commons, so Parliament introduced the 1911 Act to restrict the power of the Lords to delay legislation. In this way, Parliament was able to legislate over its own procedures.
Any law that the Parliament of the day makes can be broken by successive Parliaments.
Ireland Act 1949
In 1800 Parliament passed the Union with Ireland Act, which stated that England and Ireland should, ‘from this day of January … and for ever after, be united into one kingdom.’ In 1949 Parliament granted Ireland its independence from England. This showed that a successive Parliament could change the previous law.
This raises the doctrine of implied repeal. If an Act of Parliament is inconsistent with an earlier statute, the later Act is taken to repeal the first.
Vauxhall Estate Ltd v. Liverpool Corporation (1932)
The corporation took the plaintiff’s property under a compulsory purchase order. In calculating the compensation, the corporation relied on the terms of the Housing Act 1925, whereas the plaintiff argued that the calculation should be based on the more generous terms of the Acquisition of Land (Assessment of Compensation) Act 1919.
It was held that the later Act should apply.
No one, not even the courts, can challenge Parliament, since the courts are only supposed to interpret Acts of Parliament.
British Railways Board v. Pickin (1974)
Pickin sought to challenge the British Railways Act 1968, arguing that the statute was invalid as there were irregularities in the procedure which had led to it being passed.
It was held that it was not for the court to examine how an Act of Parliament had come into force. If the statute had been passed by Parliament, the court was simply there to apply the provisions.
European Communities Act 1972, s. 2
General implementation of Treaties
(1) All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties … are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly.
The above shows that EU law is to be given effect without further intervention by Parliament.
In addition, s. 2(4) states that the provisions apply to ‘any enactment passed or to be passed’. This means that the Act bound Parliament to the EU law which existed at the time, and all EU laws passed in the future.
EU provisions implemented in the form of Regulations and Directives also have implications for parliamentary sovereignty. This is because EU Regulations are directly applicable, and do not require an Act of Parliament to come into force. This can be seen as an undermining of Parliamentary sovereignty.
R v. Secretary of State for Transport, ex parte Factortame Ltd (1991)
Spanish fishermen sought to avoid fishing quotas by registering their ships in the UK. The government introduced legislation to counter this, but the fishermen argued this was contrary to EU law.
It was held that, where there was conflict between EU and domestic law, courts must give effect to the EU provisions. The law of Parliament could be set aside.
Francovich v. Italy (1991)
The Italian state failed to implement an EU Directive which ensured that employees of insolvent companies would be paid wages owed to them.
It was held that, as the Italian state had failed in its obligation to implement the Directive, it must compensate individuals who had suffered loss as a consequence.
The first case shows that the courts recognise EU law over domestic law, and the second shows the sanctions imposed upon a state when a directive is not implemented.
Although the UK has, officially, an unwritten constitution. It is necessary to consider that there are several written sources, such as constitutional statutes, that form the constitution. So even though there may not be a single written document, there are still written sources to the UK constitution.
Additionally, over time, many special sources have been replaced by statutory powers in a bid to make them more accountable to Parliament and the courts.
In identifying which Acts of Parliament have a constitutional significance, we have to look at the effects of that particular statute. An Act that has an impact on the workings of the state or the relationship between the state and the individual is likely to be a constitutional statute.
It is essential, when discussing the role of common law in the context of the constitution, to understand that many times courts seek to restrict the powers of the state in order to protect the rights of individuals. This demonstrates the separation of powers.
It was held that the state had to act within legal authority. Therefore, if there was no statute or common law precedent which authorised the search, it would be illegal. The state was not above the law.
This cases sets out the relationship between Parliament and the courts. As stated by Lord Diplock, ‘Parliament makes the laws, the judiciary interpret them’.
The actions proposed amounted to a tax which had not been authorised by Parliament. The government could only levy taxes on the public where Parliament had expressly authorised them to do so.
Although Parliament is supreme, and courts must follow the will of Parliament, they are able to challenge wrongdoing on the part of the executive.
Common law and statute provide clarity and certainty as compared to special sources of the constitution.
Special sources of the constitution originate not from Parliament, but mainly in the history of England.
Some important powers within the constitution have their origins in the powers originally exercised by the monarch. Although Parliament is considered supreme, the executive can still exercise a number of powers without the consent of either the Legislature or the Judiciary. This absence of accountability makes such powers particularly useful to government.
‘the residue of discretionary or arbitrary authority … legally left in the Hands of the Crown … the remaining portion of the Crown’s original authority’ – Dicey (1885)
The ‘Crown’ does not necessarily mean just the monarch. It also means the government which acts in the name of the Crown.
Foreign Prerogatives:
Domestic Prerogatives:
The Queen also appoints ministers on the advice of the Prime Minister. While this may suggest that the Queen can ignore this ‘advice’, in practical terms, she is bound to appoint those chosen by the elected leader.
Prerogative powers may cause concern among those who would prefer all power to be accountable under Parliament. An important example is the use of prerogative power by the government to agree to an extradition treaty with the USA without approval of Parliament.
Finally, it must be known that it is not possible to create new prerogative powers, since prerogative powers are a residue of the original powers of the monarch.
BBC v. Johns (Inspector of Taxes) (1965)
The BBC attempted to argue that, because it had been established by Royal Charter, it was part of the Crown and therefore exempt from paying tax.
It was held that the BBC could not escape paying taxes this way. The historical exemption from taxation which applied to the Crown could not be extended to the Corporation. In a famous comment, Lord Diplock stated ‘it is 350 years and a civil war too late for the Queen’s court to broaden the prerogative’.
While prerogative powers cannot be made, it can be extended.
Malone v. Metropolitan Plice Commissioner (No. 2) (1979)
The plaintiff, and antiques dealer, was tried on charges of receiving stolen goods. During the trial it was revealed that his telephone had been tapped on the basis of a warrant issued by the Secretary of State. The plaintiff asserted that the Crown had no power, either under statute or comon law, to tap telephones.
It was held that because there was no express law against telephone tapping, the Secretary of State’s actions were lawful. There was also an acknowledgement that, because there had existed a historical prerogative power to intercept letters, there must also be power to intercept telephone calls.
Where a prerogative power and statutory power conflict, the statutory power will prevail. This is another expression of the doctrine of parliamentary sovereignty.
A-G v. De Keyser’s Royal Hotel Ltd (1920)
The hotel had been used by British troops in the First World War. After the war, the owners sought compensation from the British government under the Defence of the Realm Act 1914. The government argued that their actions did not fall under the Act as it fell under the prerogative power of defence, and thus compensation was not available.
It was held that where a statute had passed, it replaces the prerogative power.
The above case makes sense, since an Act has to receive the royal assent. In addition, it must be noted that the prerogative power does not disappear completely. It is merely avoided by the use of statute, and may return should the statute be repealed.
Originally, prerogative powers were seen as non-justiciable, which means the courts will recognise that a prerogative power applies but cannot enforce it. This made such powers largely unaccountable.
Gouriet v. Union of Post Office Workers (1978)
The union planned a strike in support of the anti-apartheid movement in South Africa. The A-G decided not to pursue legal action to prevent the strike. This led to accusations that he had misused his powers in order to protect the union.
It was held that this was a prerogative power which was vested in the A-G. Consequently, it was not open to the court to question how, or whether, the power was used.
This position changed with the recognition by the courts that prerogative powers were not beyond their jurisdiction. This would seem to be fair, since there should be separation of powers.
Council of Civil Service Unions v. Minister for the Civil Service (the GCHQ case) (1985)
The government altered, by means of prerogative power, the terms of the employment of workers to prohibit union membership for staff working at the secret Government Communications HQ. The union sought judicial review of the policy.
While the appeal failed, it was held that there was nothing in principle to prevent courts from considering the use of prerogative powers.
After the GCHQ case, the courts have considered prerogative powers. Some have been held to be open to judicial review, while others remain non-justiciable.
R v. Secretary of State for the Home Department, ex parte Northumbria Police Authority (1989)
The Secretary of State indicated that he would make available riot control equipment to police forces even against the wishes of the local police authority. Northumbria police authority challenged the policy, arguing that the Secretary of State has no power to supply such equipment against their wishes.
It was held that consent of the police authority was not required under the Police Act 1964. Furthermore, the Secretary of State retained the prerogative power to protect the peace of the realm, which remained unaffected by the passage of the Act.
R v. Secretary of State for Foreign and Commonwealth Affairs, ex parte Everett (1989)
The Secretary of State refused to issue a new passport to a British citizen living in Spain on the basis that he was subject to an arrest warrant in the UK. The applicant sought judicial review of the decision.
It was held that prerogative power to issue passports was subject to judicial review as it affected the rights of the individual and did not have foreign policy implications. However, the Secretary of State could refuse to issue the new passport as it was within his powers, provided that he communicated the reason for the refusal, together with the details of the warrant.
R v. Secretary of State for the Home Department, ex parte Bentley (1993)
The case concerned the refusal of the Secretary of State to exercise the prerogative of mercy to grant a posthumous pardon to Derek Bentley, who had been executed in 1953 for the murder of a policeman.
It was held that the court could review the prerogative of mercy in order to conclude that the original decision not to grant a pardon was flawed. The court, however, would not order a pardon, but invite the Secretary of State to reconsider the decision.
R v. Secretary of State for Foreign and Commonwealth Affairs, ex parte Rees-Mogg (1994)
The Prime Minister agreed the Maastricht Treaty with other European leaders but it still had to be ratified by Parliament. Faced with opposition from his own party, the Prime Minister threatened to ratify the treaty without a vote by means of prerogative power.
The application was judicial review would be refused. The power to ratify the treaty remained within the prerogative power of the Crown.
In the above case, it is worthwhile to note that although the Prime Minister threatened to use prerogative power to ratify the treaty, this proved unnecessary as his MPs, fearful of losing a vote of confidence, ultimately backed him and passed the vote in Parliament.
Constitutional conventions are customs or historical practices which determine what will happen in certain circumstances. As with Royal prerogative, conventions are not enforceable by the courts and are described as ‘non-legal’ rules.
Conventions and prerogative power frequently overlap. The best way to visualise the relationship between the two is that certain actions are authorised by prerogative power, whereas convention provides the custom or rule which dictates how the power shall be exercised.
There is nothing in law to enforce a convention. It is also said that the sanction for a convention that is not followed is ‘political’ rather than ‘legal’. Conventions may also change over time. This is particularly evident in relation to ministerial responsibility. The convention that ministers would resign if there were serious failings in their department has all but disappeared and this can be viewed in terms of a weakening of the political sanction.
A constitution is simply a system of rules. Organisations and clubs have constitutions to regulate the way members and leaders operate. Similarly, a country’s constitution is a framework of rules which dictate the way in which power is divided between the various institutions of state and the relationship between the state and individual (horizontal and vertical).
In some countries, the constitution is a piece of paper which sets out the system of rules. In this way, a constitution can be concrete, rather than abstract.
In a constitutional monarchy, the monarch acts as head of state. The government exercises power in the monarch’s name.
A constitutional republic elects a president as head of state. The president exercises power in the name of the state.
In a federal constitution, such as the USA, a central, federal government retains important powers, such as defence and national interests, whereas individual states have local powers and the authority to rule in various ways.
By contrast, the UK adopts a unitary constitution – all power resides in the central state institutions. Local councils exist, but can be altered or abolished by the central government at any time – Greater London Council abolished in 1985.
A written constitution is one where a physical document exists, stipulating the structure of government and the rights of the people. Almost every country apart from the UK has a written constitution. For the citizens of a country, the constitution is important because it prevents the state from abusing its powers and safeguards the rights of the individual.
A written constitution has to be strong to protect citizens’ rights. However, it shouldn’t be too strong because it may have to be changed to reflect changes in society. For example, the US constitution included the right to own slaves, which was later removed when the majority recognised this as unacceptable.
Many written constitutions are produced after a revolution:
There are, however, some countries besides the UK that have unwritten constitutions:
In UK, the constitution is unwritten, and there is no single document which sets out power relationships. Instead, there are various sources that combine to form the constitution.
One of the most important things about a written constitution, arguably, is that it provides, specifically, the protection of individual rights. In the USA, for example, the First Amendment – the right to freedom of speech. Such rights cannot be taken away by the state as and when it pleases.
Demands for a written constitution in the UK regularly appear in press and parliament. Producing such a document to codify the constitution, however, would be an enormous task which would definitely encounter opposition from those who value the flexibility of the existing system.
Prime Minister Gordon Brown has frequently indicated a desire for a written constitution but given the current economic crises facing the government, he may well conclude that there are more pressing problems to be addressed.
Essay questions on self-defence are quite common as this is a controversial area of law, particularly after the high-profile case of Tony Martin – Martin (Anthony) (2003), and the subsequent debate over the position of householders who attack intruders.
Criminal Justice and Immigration Act 2008, s. 76, provides a statutory basis for self-defence. However, it does not attempt to define self-defence, leaving it up to common law and Criminal Law Act 1967, s. 3(1).
The necessity of force is judged from the defendant’s perspective. As long as the defendant believed, himself, that the use of force was necessary, then this element of the defence is satisfied.
R v. Williams (Gladstone) (1987)
The defendant saw a man attack another. He intervened and punched the attacker. However, the attacker turned out to be trying to detain a man who had just committed a robbery.
The defendant must be judged on the facts as they believed them to be. If the defendant’s perception of events had been correct, self-defence would have been available to him, and he should not be deprived of a defence because he was mistaken.
Provided that the mistaken belief was honestly held, it is immaterial that the mistake was not reasonable.
This principle is reinforced by ss. 76(3), (4) and (7) of the CJIA 2008.
Mistaken belief is not available to persons with mental illness (Martin [Anthony] [2003]), or persons who is voluntarily intoxicated (O’ Grady [1987] and Criminal Justice and Immigration Act 2008, s. 76(5)).
In Bird (1985), the trial judge directed the jury that self-defence was only available if the defendant had first shown an unwillingness to fight. COA held that there were circumstances where a defendant might reasonably react immediately and without first retreating. It was up to the jury to decide the facts.
Beckford v. R (1988)
Lord Griffiths stated that ‘a man about to be attacked does not have to wait for his assailant to strike the first blow or fire the first shot; curcumstances may justify a pre-emptive strike‘.
In A-G’s Reference (No. 2 of 1983), it was held that a person may arm himself in anticipation of the need to defend himself or his property – this included making and storing fire bombs to protect against rioters.
The general rule is that force used must be no more than necessary – and proportionate to the threat. Although the test to determine whether the use of force was necessary is subjective in nature, the reasonableness of force used is determined objectively – by the jury.
Level of force used must be reasonable in response to the facts as the defendant believed them to be – Owino (1996)
A person defending himself cannot weigh to a nicety the exact measure of his necessary defensive actions – Palmer (1971)
This objective standard is necessary to safeguard society from unnecessary violence.
Self-defence justifies the force used to results in complete acquittal if used successfully. There is no halfway measure, for instance, where the use of force was necessary but the level of force used was excessive – Clegg (1995)
There is also no defence available to those following a superior’s orders, even for the armed forces, as one has a duty to obey lawful orders, and a duty to disobey unlawful orders.
There are two types of intoxication that the courts recognise:
Specific Intent Crimes – i.e. Murder, where proof of intention must be beyond reasonable doubt – intention only.
Voluntary intoxication may only help the defendant is the defendant was so intoxicated that he was incapable of forming the requisite intent. He cannot be liable for his specific intent crime, but may be liable for a different offence if there was a basic intent alternative – DPP v. Beard
If the defendant was intoxicated by still able to form the requisite intent, then his liability will be unaffected by his intoxication – Sheehan and Moore (1975)
A-G for N. Ireland v. Gallagher (1963)
It was held that a person who forms an intention to kill whilst sober and drinks to give himself Dutch courage to do the killing and who then goes on to kill whilst intoxicated cannot rely on intoxication to avoid liability.
Basic Intent Crimes – where mens rea requires intention or recklessness.
The defendant’s intoxication supplies the recklessness for the mens rea – DPP v. Majewski (1977)
R v. Hardie (1985)
The defendant took valium prescribed for his girlfriend after an argument, believing it would calm him down. Under its influence, he started a fire which spread through the flat.
This did not fall within voluntary intoxication thus the Majewski presumption of recklessness would not apply. Unlike recreational drugs and alcohol, which were known to cause unpredictable behaviour, valium was known for its sedative effects. Consumption of non-dangerous drugs would amount to involuntary intoxication unless the consumption itself was reckless.
R v. Kingston (1995)
Defendant was drugged unknowingly by men who wished to blackmail him. Defendant then committed an act of indecency with a young boy who had also ben drugged. The defendant then claimed that the drugs eroded his ability to resist the paedophilic urges he had managed to control whilst sober.
It was held that although the defendant’s will was weakened by drugs without his knowledge, he was still aware of his situation and knew his actions were wrong. As such, he had mens rea for the offence charged.
Involuntary intoxication itself is not sufficient to excuse a defendant from liability. The intoxication must have also prevented the defendant from forming mens rea, otherwise he remains liable.
The law on insanity and automatism is mostly outdated. Insanity is deemed to be caused by internal factors whereas automatism arises from external factors. Automatism leads to acquittal, whilst insanity results in a ’special verdict’ of ‘not guilty by reason of insanity’.
At the time of committing the act, the defendant was labouring under such a defect of reason, arising from a defect of mind, that he did no know the nature and quality of his act or, if he did know this, that he did not know that what he was doing was wrong – M’Naghten Rules (1843)
Application of M’ Naghten Rules which lead to establishment of insanity may not necessarily coincide with our everyday ideas of insanity. It is crucial to accept this as a consequence of judicial interpretation (especially in cases of diabetes and epilepsy).
Arises when defendant is incapable of exercising ordinary powers of reasoning.
R v. Clarke (1972)
Defendant charges with theft. She claimed she acted absent-mindedly whilst suffering from depression. Trial judge raised insanity, but it was held that ‘defect of reason’ required inability to exercise reason rather than a failure to do so at a time at which the exercise of reason was possible.
It is, thus, important to note that there must be an inability to reason, which may be evident by signs of irrational, strange or abnormal thoughts/behaviour, whereas a failure to reason would involve rational thinking and controlled behaviour.
R v. Sullivan (1984)
The defendant caused GBH during an epileptic fit.
HOL held that the nature of the disease, physical or psychological, was irrelevant provided it affected the ‘mental faculties of reason, memory and understanding’ at the time of the defence.
The judicial interpretation means that any disease that affects the way the mind reasons, remembers, or comprehends, is a ‘disease of the mind’ for the purposes of instanity and demonstrates a distinction between:
The problem with this kind of interpretation is that it creates a potential for everyday physical conditions to amount to insanity, since physical conditiond will almost always amount to an internal factor.
The nature refers to the characteristics of the act, while the quality means its consequences. Delusional motives will not suffice, since the defendant still knows the nature and quality of the act.
The defendant may still raise insanity in his defence if he does not know that his actions were legally wrong.
R v. Windle (1952)
The defendant was medically insane. He gave his suicidal wife an overdose. Upon arrest, he mentioned that he would hang for his actions.
The defendant’s comment showed that his was aware that his actions were illegal.
In the European Court of Human Rights, Winterwerp v. Netherland (1979), a person should only be detained (in contrary to Article 5 of the ECHR) on the basis of unsound mind if three criteria were satisfied:
An act which is done by the muscles without any control by the mind such as a spasm, a reflect action, or a convulsion; or an act doneby a person who is no conscious of what he he is doing such as an act done whilst suffering from concussion – Bratty v. A-G for N. Ireland (1963)
Thus, the requirements of automatism:
The defendant must suffer complete loss of control and/or consciousness rather than an eroded ability to exercise control or partially impaired consciousness.
Broome v. Perkins (1987)
Defendant sought to rely on automatism for charges arising from erratic driving whilst in hypoglycaemic shock.
Automatism requires a complete loss of control. The defendant maintained some control by steering and braking thus his movements were not entirely involuntary and automatism would not be available.
This distinguishes automatism from insanity. External causes such as blows to the head or the introduction of medication into the defendant’s system give rise to automatism.
Since automatism leads to acquittal in recognition of the defendan’ts inability to control his actions, it follows that self-induced automatism cannot be used to avoid liability because the defendant was responsible for his lack of control.
Fraud Act 2006, s. 1
(1) A person is guilty of fraud if he is in breach of any of the sections listed in subsection 2 which provide for different ways of committing the offence.
(2) These sections are -
(a) section 2 (fraud by false representation)
(b) section 3 (fraud by failing to disclose information) and,
(c) section 4 (fraud by abuse of position).
Fraud Act 2006, s. 2(1)
A person is in breach of this section if he (a) dishonestly makes a false representation and (b) intends by making that representation (i) to make a gain for himself or another or (ii) to cause loss to another or to expose another to a risk of loss.
Actus Reus
Mens Rea
Express = explicit, tending to be a positive action
Implied = the impression the defendant may have given based on any form of conduct.
Fraud Act 2006, s. 2(2)(a), a representation is false if it is untrue or misleading. A false representation may be implied by conduct, and it may be more difficult to establish due to different assumptions people may make about certain conduct.
There must be some intention to make a false representation. This is because there may be many situations where there could be misunderstandings that lead to a representation being falsely made.
Criminal law only imposes liability on those whose wrongful conduct is willed and volitional. A defendant who believes he is telling the truth cannot be liable for fraud under criminal law.
Dishonesty is established by reference to the two-stage Ghosh test:
Both objective and subjective components must be fulfilled in order for a defendant to be found as dishonest. Surreptitious behaviour may mean that the defendant considered his conduct dishonest.
Fraud Act 2006, s. 5(2)
‘Gain’ and ‘loss’ (a) extend only to gain or loss in money or other property (b) include any such gain or less whether temporary or permanent and ‘property’ means any property whether real or personal (including things in action and intangible property).
Fraud Act 2006, s. 5(3)
‘Gain’ includes gain by keeping what one has as well as a gain by getting what one does not have.
The intention to make gain or cause loss refers to what the defendant intended to do at the time that the false representation was made and not to what actually happened – in case the defendant was unsuccessful.
The ‘obtaining by deception’ offences in the Theft Act 1978 were repealed by the Fraud Act 2006.
In the old law, the offence would not be established if the defendant did not obtain any property. In the new law, under the Fraud Act 2006, he is liable at an earlier point in the fraudulent process, as the consequences of his actions are irrelevant.
Theft Act 1978, s. 3
A person who, knowing that payment on the spot for any goods supplied or service done is required or expected from him, dishonestly makes off without having paid as required or expected and with the intent to avoid payment of the amount due shall be guilty of an offence.
Actus Reus
Mens Rea
Making off without payment survived the repeal by the Fraud Act 2006, because under the Fraud Act 2006, s. 2, a defendant cannot be liable for fraud if he had made a represention that was true at first, but changed his mind later on, since the time at which the representation was made is the time at which it must be false.
Goods supplied or services provided: property/services retain the same meaning.
Making off from the spot where payment is expected/required: Usually obvious, but in Aziz (1993), this spot was held to be mobile in relation to taxi journeys. Making off does not necessitate a dramatic exit or deliverate stealth; any departure will suffice (although speed or stealth may be evidence of a guilty state of mind).
Without paying as required/expected: The defendant must make no offer of payment. An agreement to return later to pay defeats this offence – Vincent (2001).
Dishonesty: Ghosh test.
Knowledge that payment on the spot was required/expected: Closely linked to dishonesty. A genuine mistake as to whether payment is required is not dishonest.
Intention to avoid payment: Requires intention to avoid payment permanently. In Allen (1985), it was held that intention to temporarilty avoid payment will not suffice. A defendant who left but genuinely hoped to be able to pay at a later date was not liable.
Theft Act 1968, s. 8(1)
A person is guilty of robbery if he steals, and immediate before or at the time of doing so, and in order to doso, he uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force.
Actus Reus
Mens Rea
Level of force may be minimal – Dawson (1977)
Force may be applied to person or their property (e.g. grabbing a handbag without touching the owner) – Clouden (1987)
Fear of force will suffice, including menacing behaviour.
Force must be used to facilitate theft.
‘Any person’ literally refers to any person – the person need not be the owner of the property. (Bank employees are not owners of the money)
Use of force must precede or coincide with the theft. Force used after the theft is complete cannot have been instrumental in committing the theft.
However, there might be continuing appropriation.
R v. Hale (1979)
Defendant’s accomplice stole jewellery while defendant remained downstairs with the owner of the house. He tied her to a chair and threatened to harm her child if she called the police after they left. He argued that the force occurred after the theft so he could not be liable for robbery.
Appropriation is a continuing act that commences with the first assumption of the owner’s rights but which does not cease immediately (the duration of appropriation is a question of fact for the jury).
Even if after applying Hale, and the conclusion of no robbery, the defendant may still be liable for theft and a non-fatal offence.
Mens rea of robbery is the mens rea of theft with an intention to use force in order to steal.
Theft Act 1968, s. 9(1)
A person is guilty of burglary if -
(a) He enters any building or part of a building as a trespasser and with intent to commit any such offence as mentioned in subsection (2) below; or
(b) Having entered any building or part of a building as a trespasser he steals or attempts to steal … inflicts or attempts to inflict on any person therein grievous bodily harm.
Actus Reus
Mens Rea
Straightforward if whole body enters.
Partial entry using a part of his body – Brown (1985)
Use of an instrument or agent also considered entry.
Buildings are usually straightforward. However, two tricky situations:
R v. Collins (1973)
Defendant was mistakenly beckoned to enter victim’s room.
Trespass requires entry without permission so if the defendant believed he had permission to enter prior to any part of his body crossing the threshold then he would not be trespasser.
Permission to enter may be express or implied and may be limited to certain parts for specific purposes.
R v. Jones and Smith (1976)
Defendant entered his father’s house with a friend to steal. He had general permission to enter the house and argued that this meant that he was not a trespasser for the purposes of burglary.
Held that a person who enters a building for an unlawful purpose will be a trespasser irrespective of any express or implied permission to enter that had been extended to him.
Trespass alone is a civil tort.
Required in s. 9(1)(a) – ulterior intent to commit theft, GBH or criminal damage at the time that the defendant entered the building. If intent is not present upon entry, subsequent formation of ulterior intent will not amount to burglary.
Conditional intent will suffice: defendant planned to do X only if Y – A-G’s Reference (Nos 1 and 2 of 1979)
Required in s. 9(1)(b) – requires actual or attempted theft (all five elements) or elements of Offences Against the Person Act, s. 20, or the requirements for liability for attempting either offence (inchoate offence).
