CRIMINAL LAW: DEFINITION AND AMBIT 1.1 A search for definition (i) The harmful nature of the prohibited event (ii) Punishment (iii) Convictions 1.2 Ambit (i) Criminalisation ex ante (ii) Ex post: censure (iii) Ex post: sanction 1.3 The structure of a criminal offence (i) Defences: a separate element 2 THE RULE OF LAW AND THE EUROPEAN CONVENTION 2.1 No conviction without criminalisation 2.2 Retrospective crimes 2.3 Fair warning(i) Use of evaluative concepts 2.4 Fair labelling 2.5 The European Convention on Human Rights (i) The Human Rights Act 1998the framework (ii) The interpretation of Convention rights (iii) The ECHR and the substantive criminal law 3 INTERPRETATION AND PROOF 3.1 Statutory interpretation (i) The sources of the criminal law (ii) The interpretation of criminal statutes (iii) Interpretation and development of common law offences 3.2 The burden of proving actus reus and mens rea (i) Exceptions (ii) The golden thread: somewhat frayed? 4 THE ACTUS REUS 4.1 The behaviour element (i) Behaviour and omissions (ii) Crimes with no (explicit) behaviour element 4.2 Consequences: the need for causation (i) The rule of thumb (ii) Causation in law (iii) Intervening causes (iv) Omissions 4.3 The requirement of voluntariness (i) Involuntary behaviour (ii) Omissions, states of affairs, and possession (iii) Involuntariness: responsibility by antecedent fault 5 MENS REA 5.1 Intention (i) Ways of speaking about intention (in its core sense) (ii) A formal definition of intention in its core sense (iii) Foresight of consequences is not enough (iv) Virtually certain consequences: the second category of intention (v) Intention and circumstances (vi) Multiple intentions (vii) With intent or ulterior intent crimes (viii) Conditional intent (ix) No presumption of intention 5.2 Recklessness (i) The need for foresight (ii) Recklessness as an actus reus term (iii) Recklessness and circumstances (iv) Intoxication and the presumption of recklessness 5.3 Why distinguish intention from recklessness? 5.4 Knowledge (i) Wilful blindness 5.5 Negligence (i) The test for negligence (ii) Abnormal defendantsdoes the reasonable man share any of their characteristics? (iii) Negligence with respect to behaviour rather than consequences or circumstances (iv) The place of negligence 5.6 Other mens rea states (i) With a view to (ii) Wilfulness (iii) Malice (iv) Possession 5.7 Transferred mens rea (i) Incompatible or remote transfers where the offence elements are satisfied? 5.8 Concurrence (i) Circumventing the concurrence requirement 6 STRICT AND CONSTRUCTIVE LIABILITY 6.1 Recognition of strict liability in a statutory offence (i) The initial presumption (ii) Overriding the presumption: subject matter of the offence (iii) Severity of punishment (iv) Implying mens rea from statutory language (v) The ability of others to affect D's liability? 6.2 The availability of common law defences (i) Exception for situational offences 6.3 The justification of strict liability (i) The argument for sometimes dispensing with mens rea (ii) The argument for always requiring mens rea (iii) The argument for strict liability (iv) The argument against strict liability 6.4 Middle ground: strict liability in the Commonwealth 6.5 The correspondence principle, constructive liability, and moral luck (i) Moral luck 7 SECONDARY PARTICIPATION 7.1 The possibility of derivative liability 7.2 Modes of participation 7.3 The principal (i) Innocent agents (ii) Law Commission proposals 7.4 Secondary parties who assist or encourage crime (i) The conduct element (ii) The need for a connection (iii) Omissions (iv) Mens rea for participation by assistance or encouragement 7.5 Secondary parties pursuant to joint unlawful enterprise (i) Joint embarkation on crime A (ii) Foresight of crime B (iii) An incident of the joint enterprise and not fundamentally different (iv) Conviction for a different offence with overlapping actus reus? (v) The rationale of joint enterprise liability 7.6 General principles applying to all secondary parties (i) Liability is normally dependent on commission of the offence (ii) Exceptions: secondary liability without the primary offence (iii) Conviction for different offences with the same actus reus (iv) Limitations on secondary liability (v) Secondary liability and inchoate offences (vi) Withdrawal 7.7 Do we need complicity? (i) Law Commission proposals (ii) A causation analysis? 8 VICARIOUS AND CORPORATE LIABILITY 8.1 Vicarious Liability (i) Express legislation (ii) Delegation (iii) When the act of an employee/agent is that of the employer/principal (iv) Anomalous cases of liability for an employee's act (v) Summary (vi) Reform 8.2 Corporate liability (i) The justification of corporate liability (ii) Crimes of strict liability (iii) Crimes of mens rea (iv) Summary: the current law (v) Reform: new conceptions of corporate action and responsibility 9 THE INCHOATE OFFENCES 9.1 Incitement 9.2 Encouraging and assisting a crime (i) Actus reus (ii) Mens rea (iii) Defences 9.3 Conspiracy (i) Statutory conspiracydefinition and ambit (ii) The agreement (iii) The course of conduct (iv) The mens rea of conspiracy (v) D's co-conspirators: some limitations (vi) Conspiracies involving the commission of more than one offence (vii) Conspiracyan unnecessary offence? 9.4 Attempt (i) Actus reus: the requirement of proximity (ii) The scope of the actus reus of attempt (iii) The mens rea of attempt (iv) Voluntary withdrawal (v) Liability for attempt and commission of the full offence (vi) Attempt, luck, and punishment (vii) Reform of the law of attempt 9.5 Impossibility and inchoate offences (i) The principle of an impossibility defence (ii) Impossibility at common law (iii) Impossibility in attempt, statutory conspiracy, encouragement, and assistance 9.6 Jurisdiction and inchoate offences 10 HOMICIDE 10.1 Death and liability 10.2 Homicide defined (i) Human beings (ii) Causation in homicide (iii) Acts, omissions, and homicide (iv) Abolition of the year and a day rule (v) The Queen's Peace 10.3 Murder (i) The mental element in murder (ii) The ambit of murderan evaluation 10.4 Manslaughter (i) Introduction (ii) Voluntary manslaughter 10.5 Loss of self-control (i) Provocation (ii) A critique of provocation (iii) The statutory defence of loss of control (iv) Relationship with diminished responsibility 10.6 Involuntary manslaughter (i) Constructive manslaughter (ii) Manslaughter by gross negligence (iii) Corporate manslaughter (iv) Reckless manslaughter 10.7 Reform of the law of homicide 10.8 Causing the death of a child or vulnerable adult 10.9 Suicide, encouraging or assisting suicide, and suicide pacts (i) Suicide (ii) Encouraging or assisting suicide (iii) Suicide pacts 11 NON-FATAL OFFENCES AGAINST THE PERSON 11.1 Assault and battery 11.2 Assault (i) The actus reus (ii) The mens rea for assault 11.3 Battery (i) Actus reus (ii) Hostility (iii) Mens rea 11.4 Assault occasioning actual bodily harm (i) Actus reus (ii) Mens rea 11.5 Maliciously wounds or inflicts grievous bodily harm (i) Actus reus (ii) Mens rea 11.6 Wounding with intent (i) Actus reus (ii) Mens rea 11.7 Transmitting diseases and infection (i) Cases where harm was intended (ii) Cases where the harm was knowingly risked (iii) Administering noxious things 11.8 Harassment (i) Harassment of another (ii) Persuasive harassment of others (iii) Causing fear of violence 11.9 Racial and religious aggravation 11.10 Reforming the law of violence 12 THE PRINCIPAL SEXUAL OFFENCES 12.1 Non-consensual sexual offences 12.2 Rape 12.3 Assault by penetration 12.4 Sexual assault 12.5 Causing a person to engage in sexual activity without consent 12.6 Sexual conduct or activity (i) Activity by its nature sexual (ii) Activity ambiguous by nature 12.7 Consent (i) Conclusive presumptions about non-consent: section 76 12.8 Mens rea in non-consensual sexual offences; mistaken belief in consent 12.9 Proof of non-consent, and the defendant's mens rea as to this (i) Section 75 and the evidential presumptions (ii) Consent and reasonable belief apart from evidential and conclusive presumptions 12.10 Intoxication 12.11 Consensual sexual offences 12.12 Child sex offences(i) Offences involving children under 13 (ii) Offences involving children under 16 12.13 Abuse of trust 12.14 Familial child sex offences 12.15 Sex with an adult relative 12.16 Jurisdiction 13 THEFT 13.1 Property, rights, and justice 13.2 The definition of theft 13.3 Property (i) What counts as property?(ii) The exceptions in section 4(2)(4) 13.4 Belonging to another (I)the basics (i) What interests are protected by section 5? (ii) Theft by an owner under section 5(1) (iii) Theft by an absolute owner? When D's interest is better than V's (iv) Has D become an absolute owner? (v) Abandonment and loss: is finding theft? 13.5 Belonging to another (II): extensions in the Act and in equity (i) The growth of the constructive trust (ii) Theft of an interest protected by section 5(2): trust property (iii) Theft of an interest protected by section 5(3): property received on account (iv) Theft of an interest protected by section 5(4): where there is an obligation to make restitution 13.6 Appropriation (i) Some examples of appropriation (ii) Restrictions on the scope of appropriation?(iii) Theft by keeping or omission (iv) Multiple and continuing appropriations (v) Bona fide purchasers (vi) Bank accounts 13.7 Intention permanently to deprive (i) The core definition (ii) Section 6: extensions and special cases 13.8 Dishonesty (i) Belief that he has the right to deprive: section 2(1)(a) (ii) Belief that the other would consent: section 2(1)(b) (iii) Belief that the owner cannot be found: section 2(1)(c) (iv) The general test for dishonesty 13.9 Jurisdiction over Theft Act offences 14 RELATED OFFENCES 14.1 Handling stolen goods (i) Handling (ii) Stolen goods (iii) Knowledge or belief (iv) Dishonesty (v) Concurrence of actus reus and mens rea (vi) Handling versus theft 14.2 Laundering (i) Acquisition, etc., versus handling (ii) The scope of the acquisition offence 14.3 Robbery (i) Theft (ii) Use or threat of force (iii) Immediately before or at the time of the theft (iv) In order to commit theft (v) Assault with intent to rob 14.4 Burglary (i) Entry (ii) As a trespasser (iii) A building or part of a building (iv) With intent to commit, or committing, the ulterior offence (v) The rationale of burglary (vi) A case for reform 14.5 Criminal damage (i) Destroys or damages (ii) Property (iii) Belonging to another (iv) Intentional or reckless damage (v) Intention or recklessness whether the property belongs to another (vi) Without lawful excuse (vii) Criminal damagea distinctive wrong 14.6 Aggravated criminal damage and arson (i) Arson 14.7 Preliminary offences 15 FRAUD 15.1 Statutory fraudgeneral 15.2 Common elements: dishonesty, and intent to make a gain or cause a loss (i) Intent to make a gain or cause a loss (ii) Dishonesty 15.3 Fraud by false representation: section 2 (i) The actus reus (ii) Mens rea 15.4 Fraud by failing to disclose information: section 3 15.5 Fraud by abuse of position 15.6 Possessing, making and supplying articles for use in frauds 15.7 Dishonestly obtaining services 15.8 Making off without payment 15.9 Conspiracy to defraud (i) Agreement with another person (ii) By fraudulent means (iii) The object of the conspiracy (iv) Mens rea (v) Conspiracy to defraud, statutory fraud, and clarity of law 15.10 Specific offences of fraud 15.11 Forgery and false accounting 16 THE MORAL LIMITS OF CRIMINALISATION 16.1 The Harm Principle (i) What counts as a harm? (ii) Seriousness (iii) Harms as wrongs (iv) Balancing requirements. (v) Remote harms 16.2 The Offence Principle (i) Offensive conduct as a wrong (ii) A communicative and conventional wrong 16.3 Legal Moralism 16.4 Paternalism 16.5 Negative grounds for intervention: regulatory alternatives (i) Tax (ii) Tort law (iii) Other mechanisms (iv) Contra: some advantages of using the criminal law 16.6 Negative grounds for intervention: the rule of law (i) Rule of law constraints on criminalization (ii) The individuation of offences 16.7 Negative grounds for intervention: practical constraints (i) What side-effects will criminalisation have? (ii) Pragmatics of the criminal justice system 16.8 Anti-Social Behaviour Orders 17 DEFENCES: AN OVERVIEW 17.1 Failure of proof versus substantive defences 17.2 Justification and excuse 17.3 The defences to be consideredan outline scheme 18 FAILURE OF PROOF: MISTAKE AND INTOXICATION 18.1 Mistake of fact, mens rea, and the decision in Morgan (i) Subjective mens rea and mistake (ii) Application of Morgan to definitional elements (iii) Mistake of fact and defences (iv) The rule in Tolson (v) Mistake of fact and mistake as to an applicable standard 18.2 Ignorance and mistake of law (i) Construing offences and mistake or ignorance of law (ii) Mistake or ignorance of law, abuse of process, and the right to fair trial (iii) Ignorance of law and Article 7 of the ECHR 18.3 Intoxication (i) Voluntary intoxication and crimes of specific intent (ii) Voluntary intoxication and crimes of basic intent (iii) Mistake, accident, and intoxication (iv) Intoxication arising from drugs taken for therapeutic reasons (v) Involuntary intoxication (vi) Intoxication and mental condition defences (vii) Intoxication, negligence, and strict liability (viii) Reform 19 MENTAL CONDITION DEFENCES 19.1 Insanity(i) Mental condition of defendant prior to trial (ii) The M'Naghten Rules (iii) The defence of insanity and the ECHR (iv) Reform of insanity law 19.2 Diminished responsibility (i) The burden of proof (ii) Substantial impairment of responsibility (iii) External factors (iv) Diminished responsibility in practice (v) Diminished responsibility: the new version 19.3 Infanticide 19.4 Infancy (i) Children below the age of 10 years (ii) Children between the age of 10 and 14 years 20 DEFENCES OF CIRCUMSTANTIAL PRESSURE 20.1 Duress (i) Duress by threat (ii) Duress of circumstances (iii) Mistaken duress (iv) A rationale of duress 20.2 Coercion 20.3 Superior orders 20.4 Entrapment 20.5 Impossibility 21 PERMISSIBLE CONDUCT 21.1 Consent (i) Consent: offence or defence? (ii) The definition of consent (iii) Factors that may vitiate consent (iv) The limits of consent (v) The limits of consentcritique 21.2 Self-defence and the prevention of crime (i) Force (ii) Reasonable forcea question of fact (iii) Force as a necessary means (iv) Force and proportionality (v) Pre-emptive force (vi) Force and non-criminal threats (vii) The defence of others (viii) Fatal force and Article 2 of the ECHR 21.3 Necessity (i) Recognition of a necessity defence in modern case law (ii) The rationale and ambit of necessity (iii) Conclusion (iv) Necessity and parliamentary sovereignty 21.4 Chastisement 22 DEFENCES AND BLAME: SOME OBSERVATIONS 22.1 Some things defences cannot do (i) Justifications and divergent values (ii) Limiting excuses (iii) Responsibility for one's character: free will and incapacity (iv) Summary 22.2 Some things the defences fail to do (i) Irresponsibility defences (ii) When conformity with law cannot reasonably be expected 22.3 Defence doctrine and judicial creativity Bibliography Index
