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Principles of criminal liability: Intention and recklessness
Principles of Criminal Liability
(a)The meaning of intention
Intention constitutes the mens rea or mental element of the criminal act that is represented by the intention of the assailant. There are several ways of constructing this depending on the requirements for satisfaction of the crime. In general intention means that there requires foresight of the consequences as opposed to a direct desire for the specific outcome. In Moloney intention was constituted by first ascertaining whether the crime was a natural consequence of the act of the defendant and also, whether such a consequence was foreseen by the defendant. This was worked in the case of R v Hancock and Shankland where Lord Scarman declared that for a crime such as murder, mens rea could not be constituted from mere foresight but that specific intent to kill or inflict serious bodily harm was the only true construction. Further to this, in order to ascertain intention, the probability of the result occurring has to also be taken into consideration. This was all tied together in R v Niedrick where Lord Lane CJ stated that the greater the probability of an outcome, the more likely the consequence is foreseen, ergo, the greater the likelihood of the intent. This connection of the constituent steps to ascertain intent have been upheld in R v Woolin.
(b) and (c) The intention of John Kerr and the meaning of recklessness
It is crucial to understand that the question is asking whether there was an intention to endanger the life of Bess Monk. From a subjective point of view, it is clear from the interview that, despite John’s ambiguous answers, he states that the fall down the stairs was an accident. The determination of intention will be ascertained by the assessment method of recklessness as either subjective or objective. However before delving into this it is important to note that recklessness itself is having regard to the consequences of an act which the assailant either disregards or is unaware of.
The ‘subjective recklessness’ construction derives from the judgement in R v Cunningham where Byrne J stated that the word ‘maliciously’, which is also found in s 20 of the Offences Against the Person Act 1961 includes a foresight of the consequence that occurred or intended for it to occur. His intention was clearly therefore, only to push Miss Monk. He therefore did not intend to endanger her life in subjective terms.
If however mens rea were to be assessed as ‘objective recklessness’, as in R v Caldwell it will become clear that John ought to have reasonably known that the push would result in a fall down the stairs and, knowing that there was a glass window at that location, ought to have been aware of the risks, as was the summation of Lord Diplock in the above case. This was affirmed and expanded upon in R v Lawrence where Lord Diplock also stated that there is intent where no though is given to the imminent risk. John Kerr therefore acted with gross recklessness and the intention to endanger life is construable.
The question therefore is, which definition of recklessness and therefore, which construction of mens rea is adoptable in this case? The recent case law would show that the Cunningham construction is the one that is in better keeping with Human Rights Law, in particular Article 6(2) of the ECHR, which provides for the right to a free trial. The presumption of innocence therefore goes hand in hand with this. It would not be the job of John to prove his innocence by having to explain what went on in his head at the time of the act. He need only state that he did not intend to endanger life and it will be up to the prosecution to bring in prima facie proof of the contrary beyond all reasonable doubt.
Offences Against the Person Act 1861
S 20 of the Offences Against the Person Act states that assault occurs where there is the allegation of infliction of grievous bodily harm or a wounding. The actus reus is proven by the presence of an assault. Here, intention is established whereby the prosecution would have to prove either that the defendant intended or actually foresaw that the act would cause harm but this ability to foresee harm need only be of a minor character and not of the extent of the true outcome.
This therefore means that while John Kerr did push Bess Monk and must have foreseen some harm, the fact hat he did not foresee her crashing through the window is irrelevant and he is therefore guilty of the offence under s 20 of the 1861 Act.
Criminal Damage in accordance with s 1(1) of the Criminal Damage Act 1971 is where a person who, without lawful excuse, destroys or damages any property belonging to another thus intending to destroy or damage such property or being reckless as to whether such property would be destroyed or damaged. This actus reus is satisfied as John Kerr’s actions directly led to the destruction of a window that fits the profile of the property under s 1(1) of the 1971 Act.
The question now is whether this is Criminal Damage in the basic or aggravated form?
The damage in question is to the window and, from the facts, it will have to be established that John Kerr was reckless so as to formulate the adequate mens rea. In R v Steer it was contended that the aim of firing shots at a house with an automatic rifle constituted the recklessness as to the clear disregard for the endangerment to life under s 1(2) of the 1971 Act and that the destruction to the property was the cause of the danger to life.
John Kerr therefore has the essential mens rea of the aggravated form of Criminal Damage as he was reckless as to the endangerment of the life of Bess Monk and this was the cause of the broken glass.
Conspiracy is described under s 12 of the Criminal Justice Act 1987 as:
“If a person agrees with any other person or persons that a course of conduct shall be pursued; and (b) that course of conduct will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement of the agreement is carried out in accordance with their intentions, the fact that it will do so shall not preclude a charge of conspiracy to defraud being brought against any of them in respect of the agreement.”
The facts show that there is clear agreement as to the conduct engaged in. At the bowling alley the rolling of bowling bowls through the café area, coupled with abuse at the customers and communal laughing is the essence of mutual agreement and encouragement to behave in this way. The throwing of sweets at customers as a group is indicative of an agreement to act in a similar manner towards others and, as stated in the case of Director of Public Prosecutions v Doot there need not be writing to the effect of such an agreement.
Further to this the agreement is clearly with the fellow human conspirators due to the implied mutual consent through laughing and encouragement. The facts also appear to show that the upturning of the popcorn stand was a mutual agreement of action among the group. The fact that there is a group of four boys means that there are identifiable conspirators although case law does not even require that they be identified.
It is clear that each member of the group are guilty of conspiracy in accordance with s 12 of the Criminal Justice Act 1987.
Voluntary ingestion of drugs is decided under case law to not constitute a defence but may have an effect on the mens rea. This is clearly established in the case of Director of Public Prosecutions v Majewski. Here Lord Elwyn-Jones LC stated at p 499 that:
“the law is plain beyond all question that in cases falling short of insanity a condition of drunkenness at the time of committing an offence causing death can only, when it is available at all, have the effect of reducing the crime from murder to manslaughter.”
The judge also stated that, in relation to assault cases, the mens rea is unaffected as it had been established in cases such as R v Vienna that recklessness satisfies the mens rea for assault and this recklessness, per se, is unaffected by intoxication by comparison to the malicious intent that is required for murder.
The fact of drug taking therefore has no affect on this assault but, had Bess Monk died, the intoxication would have aided to reduce the mens rea to that which is satisfactory for manslaughter.
(a)All of these verbs are integral to the actus reus of accessory under s 8 of the Accessories and Abettors Act 1861 as well as s 36 of the Criminal Justice Act 1972.
Aiding means to help or assist in the commission of a crime. Abetting is the instigation or the encouragement of the commission of the offence. Counselling is the action of advising or encouraging of another and procuring is the nature of ‘causing to be committed’. This final verb is the most complicated of the four and will be explored in a little more detail below.
In Attorney-General’s Reference Lord Widgery CJ stated that:
“You cannot procure an offence unless there is a causal link between what you do and the commission of the offence, and here we are told that in consequence of the addition of this alcohol the driver, when he drove home, drove with an excess quantity of alcohol in his body.”
It was therefore clear that the offence in this case has been procured as the action of the offence was directly linked to the actions of the defendant.
The facts point to the criminal liability of Dave for abetting in the crime of burglary. Firstly, in accordance with the requirements of s 8 of the Accessories and Abettors Act 1861 the first requirement is satisfied as an offence was committed under s 9(1) of the Theft Act 1968 and there is also scope for the requisite ‘grievous bodily harm’ that is necessary for burglary under s 9(2) of the Act.
As regards the second part of either aiding, abetting, counselling or procuring, it is not necessary to examine all of these in detail. The actus reus is clearly there as there was agreement that Pete should steal money. With regard to the mens rea, there needs to be, in addition to the act furthering the commission of the crime, there needs to be intent to the furthering of the commission of the crime or knowledge of such an effect. This is established for Dave who had knowledge that the aggravation of the theft through violence would have the effect of furthering the commission of the crime.
In this instance, there remains the furthering of the commission of the crime through the act of aiding and abetting but, in contrast to the above, there is no intent or knowledge of furthering of the crime of aggravated burglary in accordance with s 10 of the Theft Act 1968 or even murder. This is especially true for the latter as Dave had absolutely no ‘malicious intent’ and his mens rea cannot be elevated beyond that of burglary.
Assignment 6:Offences Against Persons and Property
The nature of constructive manslaughter
This offence is the result of death that occurs as the outcome of another ‘unlawful act’ of which both the actus reus and the mens rea require to be proven. Further to this, the unlawful act must also pose a danger or harm.
(i)Mens re and actus reus of an unlawful act
In the case of R v Lamb the lack of knowledge with regard to the mechanism on a gun barrel resulted in the shot of bullet that killed the victim. The Court of Appeal found that the pulling of the trigger itself, minus the bullet, did not amount to an ‘unlawful act’ manslaughter. Further to this, the mens rea was also not established as no unlawful act with regard to the pulling of the trigger was intended.
(ii)The unlawful act must pose a danger or harm
It was held by Edmund Davies J in R v Church that unlawful act manslaughter must be constituted by an unlawful act that any sober or reasonable person would recognise as subjecting the victim to the risk of physical harm and that this harm need not be serious. This was upheld by Lord Hope of Craighead in Attorney-General’s Reference.
Given the above two essential elements of the constructive manslaughter, it is clear that Kim committed the unlawful act of battery, which is the application of unlawful, physical force was committed when she pushed Nadia. The mens rea was constituted as Kim clearly intended to apply this unlawful force.
The question however is whether the fact of Nadia’s disabilities actually broke the chain of causation? This cannot be so as it has long been established that you must take your victim as you find him. This is also upheld in the case of R v Dawson where it was held that shock could amount to the necessary threat of physical harm that would be needed to constitute the unlawful act. The fact that the defendant had a bad heart that resulted in the heart attack and subsequent death did not break the chain of causation. The same can be said for Nadia, who was disabled and consequently less accomplished in the art of staying upright when pushed.
Kim has therefore satisfied the requirements for committing unlawful act manslaughter.
The question now is whether the intention to commit the unlawful act that carries the objectively assessed threat of harm needs to actually be directed at the victim.
Lord Hope of Craighead stated in the case of Attorney-General’s Reference that:
“it is enough that the original unlawful act and dangerous act, to which the required mental state is related, and the eventual death of the victim are both part of the same sequence of events.”
This therefore means that the continued sequence of events that starts with an intended unlawful act, as defined above, and ends in a death, are enough to constitute unlawful act manslaughter. The case followed R v Mitchell which, incidentally, is in point with the current situation with Kim. This involved the appellant hitting a man who fell on an old lady who then died of a pulmonary embolism due to the injury of the broken leg that was sustained in the fall. For the reasons stated above, the Court of Appeal held that this amounted to constructive manslaughter and, in following the reasoning of this case and that of Attorney-General’s Reference.
Kim is therefore also guilty of constructive manslaughter in this case.
As stated above in (a), the case of R v Dawson conclusively establishes that shock also falls under the umbrella term of ‘physical harm’ of which there requires to be a risk that is recognised by a reasonable person in the intentional perpetration of the unlawful act. Further to this, as stated in (b) the unlawful act need not be directed at the victim but instead requires to only be part of the same sequence of events. In other words, the unlawful and dangerous act requires to have caused the death.
The problem in this scenario with Kim is that the battery itself did not directly cause the death. In case law, deaths that occurred to victims where the unlawful act was directed at someone else were nevertheless directly connected with the physical proceeds of the original unlawful act. This includes the throwing of a live being into water, pushing one person who then falls into another, causing shock that results in a heart attack and stabbing a pregnant woman whose baby is born live but dies of the injuries.
There is however case law that establishes the principle that where there is an intervening act, the original unlawful act cannot be deemed to have caused the death. This happened in R v Dalby where a man supplied another man with drugs who then voluntarily ingested them, thus causing death. At p 429 C in the judgement, Waller LJ stated that the death itself could not have been considered as inevitable. This is the same for the current case with Kim since the act of running into a window and severing an artery was not an inevitable result of Kim pushing Nadia.
Kim is therefore not guilty of constructive manslaughter against Toby.
Question 2 – explain more about the chain of causation
In the case of R v White, Bray J reveals that despite the fact that both the mens rea for murder exists, if the death is not caused by the defendant, but by some other wholly external factor, there can be no conviction for murder and only the actus reus for attempted murder is satisfied. In this case a woman was found dead next to a drink that had been laced with cyanide. However, the post-mortem revealed that she had not died of poisoning but had instead suffered a massive heart failure. The appellant’s conviction of attempted murder was dutifully upheld.
This case is in point with that of the current scenario with Sonia and by following the ratio decidendi of this case, she is therefore guilty of the attempted murder of Manjit only.
Lord Pearson stated in Mohan v R that where the facts clearly point to equal contribution to the act of grievous bodily harm which constituted a prearranged plan to strike the fatal blow, there can be no doubt that both possess the mens rea for murder:
“It is impossible on the facts of this case to contend that the fatal blow was outside the scope of the common intention. The two appellants were attacking he same man at the same time…”
In this case, the actual perpetrator of the fatal blow was not conclusive but this was held by the judge to be irrelevant as the clear act of equal aiding and abetting distributed blame among both appellants. This case can be distinguished from R v Lane where there had been no evidence to conclude who had struck the fatal blow or when. The clear requirement is therefore to establish who the attackers were, whether they possessed the mens rea to commit grievous bodily harm (which satisfies the mens rea for murder), and that they were acting with equal contribution to a pre-arranged plan. This is clearly the case for Byron and Greg who each stabbed Graham in separate parts of the body, thus inflicting grievous bodily harm.
By following Mohan v R it is clearly established that Byron and Greg are both guilty of the murder of Graham. The chain of causation is not broken as the joint acts of each therefore contribute to the equal contribution to the single act of murder.
The question to ask is whether, ‘but for’ (sina qua non) the action of the defendant, the death would not have occurred. An example of this question being asked is found in the early case of R v Hensler which involved the question of whether ‘but for’ the deception, would the victim have parted with his or her cash and this case also shows that this requirement is not a condition that fully satisfies the establishment of the crime.
It is also necessary to ascertain whether the act is the ‘legal or proximate cause’ of the death. Therefore if injuries sustained could not have been avoided regardless of the nature of the defendant’s driving, the legal or proximate cause of death cannot be that of the defendant’s driving.
In the current case the question to ask, therefore, is whether the poisoning was actually the legal or proximate cause of death. This would mean, did the poisoning affect the husband’s ability to drive that resulted in the accident? If this is the case, Hannah is guilty of murder. If this is not the case, Hannah would be guilty of attempted murder for the same reasons under part (a).
Indicent 1 – The Leisure Club Car Park
(a)Offences committed by Kath
Kath tried car doors. S 1 of the Criminal Attempts Act 1981 defines the offence of criminal attempt as the doing of an act that is more than mere preparation for the commission of the offence. This was discussed in R v Gullefer where the Court of Appeal concluded that it would be necessary to establish that the appellant had actually embarked on the offence. This is made more than clear for Kath by her act of trying car doors.
Kath smashed the window of the Varis. This constitutes Criminal Damage in accordance with s 1(1) of the Criminal Damage Act, which exactly describes the act committed by Kath and states that:
“A person who without lawful excuse destroys or damages 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.”
For completeness, damage is defined as reduction in the value or usefulness of the property, property is defined under s 10(1) of the 1971 Act and s 10(2) defines the notion of ‘belonging to another’. Kath knew that the Yaris was not hers and therefore cannot argue this as a defence to dismantle the otherwise satisfied mens rea.
Kath kept watch for Logan. S 8 of the Accessories and Abettors Act 1861 states that those who aid and abet, counsel or procure an indictable offence shall be tried as a principle offender. There are three requirements which are that, firstly, an offence has to have been committed, which in this case is theft by Logan. Secondly, the defendant acted in accordance with s 8 of the 1861 Act, which is also constituted by Kath keeping watch and is, in case law, also satisfied by passive encouragement and thirdly, that there was intent to further the commission of the offence.
(b)Offences committed by Logan
Logan tried car doors. Logan is therefore guilty of Criminal Attempt of theft for the same reasons as Kath.
Logan kept watch for Kath and he is therefore a principle offender of Criminal Damage for the same reasons as Kath is to be regarded as a principle offender of theft.
Logan levered open the boot of the Astra and, for the same reasons stated above, this also constitutes criminal damage as per s 1(1) of the Criminal Damage Act 1971.
Logan reached through the window of the Varis and removed the CD player. He also took the laptop and the DVD player. S 9(4) of the Theft Act 1968 creates the offence of burglary of a vehicle as they would do for the burglary of a building under ss 9(1), (2) and (3) of the 1968 Act. S 1(1) of the 1968 Act states that the two elements of mens rea are dishonesty and the intent to permanently deprive. Both of these are satisfied. The latter is clear from the summoning of the unidentified person to take the items away and the former, although somewhat frustrated by the finding in R v Ghosh is obvious given the violent mode of accessing the items. The actus reus is also satisfied, which is the appropriation of property which belongs to another.
(c)Offences committed by the unidentified man
The unidentified man took the stolen items away. It is unclear whether the unidentified man possesses the mens rea for Theft in accordance with 1(1) of the 1968 Act. Dishonesty is not proven given that he might not be aware of the fact that the goods are stolen. He has however almost satisfied the actus reus in accordance with ss 3, 4 and 5 of the 1968 Act. Here, the only difference between Logan and the unidentified man is the fact that the latter did not steal the goods but s 3(1) of the Act stipulates that appropriation includes coming by the property whether:
“(innocently or not), without stealing it…later assumption of a right to it by keeping or dealing with it as owner.”
While this action is crystal clear in Logan’s case, the unidentified man will not be deemed to have assumed a right to the property if he gives it back and therefore dis applies himself from the above definition of appropriation.
Incident 2 – The Muchcheapa Supermarket
(a)Offences committed by Kath
Kath swapped the labels on the frozen pizzas. This constitutes deception by obtaining a pecuniary advantage under s 16 of the Theft Act 1968. This advantage is the reduced price of the pizzas. All the elements of deception are present in that the causal link between the deception and the prohibited act is the operative aim of an unauthorised discount, which constitutes the deliberately untrue statement that is clearly constituted by dishonesty. As the pizzas were dropped, for the reasons set out above, the requirements for criminal attempt are satisfied as the crime was physically embarked upon.
Kath hid the bottles of Lambrusco wine behind a freezer. This too constitutes the criminal attempt of theft since, in addition to the reasons set out under (a), the act of hiding the bottles constitutes embarking on the physical act of theft
(b)Offences committed by Logan
Logan helped Kath with the wrongly priced pizzas and for the reasons specified under part (a), did aid and abet in accordance with s 8 of the 1861 Act and is therefore to be treated as a principle in the crime of deception.
Logan also intended to come back and steal the wine and, as Criminal Attempt is an indictable offence under s 1 of the 1981 Act, Logan, by aiding and abetting is therefore also a principle offender of attempted theft.
Incident 3 – The One for All Wine Bar
Logan assaulted Mac. The actus reus of assault is that the victim anticipated the immediate, unlawful application of force, which in this instance is irrefutable as Mac suffered a broken nose. Lord Ackner established in R v Savage, Director of Public Prosecutions v Parmenter that for a successful finding of guilt for the infliction of grievous bodily harm or a wounding, in accordance with s 20 of the 1861 Act, the prosecution would have to prove either that the defendant intended or actually foresaw that the act would cause harm but that this ability to foresee harm need only be of a minor character and not of the extent of the true outcome. Logan’s Act, due to the breaking of the skin that is akin to a broken nose and, perhaps with the cracked skull satisfies the requirements for wounding under s 20 of the 1861 Act. This is a favourable outcome as the confession that Logan ‘saw red’ brings into question the notion that this was a wounding with intent under s 18 of the 1961 Act, which is not satisfied by mere recklessness.
Logan is therefore guilty of assault by wounding in accordance with s 20 of the 1861 Act.
Assignment 7:Offences Against Public Order
Public order and associated offences that have been committed in this scenario
(a)Andreas and the friends began to taunt the bar staff with threats of violence and a wooden stave was thrown, hitting the door of the club.
It was established above in Assignment 6 that the actus reus of assault is satisfied when the victim anticipates immediate, unlawful application of force. This can be expanded upon in the case of Smith v Chief Superintendent of Woking Police Station where Kerr LJ surmised that terror of immediate violence can occur where the victim simply does not know what the assailant is going to do next. This is actually a less obvious incident than the current situation where there were actual threats of violence, which means that, not only was the fear for the bar staff visually real, it was also immediate and could happen at any time.
The fact that there was no violence at this point means that the actus reus for ‘occasioning actual bodily harm’ for assault in accordance with s 47 of the 1861 Act are satisfied.
The group are therefore guilty of assaulting the bar staff.
(b)Andreas holding Sue Shaw by her clothes and threatening her with a bottle
For the precise reasons set out above, this constitutes an assault under s 47 of the 1861 Act.
(c)Fights had started between Andreas and his group and the club’s security staff.
The nature of this fight as a struggle following restraint is unclear and more facts are required to ascertain whether this has amounted to battery as the use of unlawful physical force under s 47 of the 1861 Act or a more serious offence under s 20 or 18 of the same act.
(d)The assault of PC Hawes
There was no intent in this scenario as Andreas lost his footing when Sue took evasive action. In order to be guilty of occasioning actual bodily harm under s 47 it is essential that there is proof of an assault and that actual bodily harm was occasioned by it. In this case, the actual bodily harm was caused by a loss of balance as opposed to an assault and therefore, there has been no assault of a police officer in accordance with s 15 of the Police Act 1996.
(e)The assault of Inspector Anita Sahota (in civilian clothes)
For the same reasons set out above in part (a), Michelle is guilty of assault occasioning actual bodily harm under s 47 of the 1961 Act. The victim certainly anticipated an immediate, unlawful anticipation of force. Self-defence in the form of coming to the rescue of others is a defence to assault and reasonable force is permitted for the purpose of the prevention of a crime, which is set out in s 3(1) of the Criminal Law Act 1967. With regards to the error of not realising that Inspector Anita Sahota was a police woman in civilian clothes, it was held in the case of R v Williams that if the jury concludes that the defendant was in the belief that a crime was being committed and that force was necessary to prevent the crime, the prosecution have then not been able to prove their case. This negation of the mistake is however only valid where the mistake was a valid one. Since Inspector Sahota was in civilian clothes, the conclusion of a reasonable mistake can be made here.
However, was the force used, namely, the punch Sahota’s face by Michelle, at all reasonable? This is not entirely clear given the case law where it has been established that the use of a firearm to apprehend an assailant of theft who is running away is deemed to be wholly disproportionate. This would however suggest that the absence of a weapon and the sheer use of a fist alone is reasonable given that the Inspector was also using non weapon-related force. This therefore means that, despite the mistake as to the identity of the Police Officer, Michelle could raise the self-defence plea, which would acquit her of assault on account of the difficulty of the prosecution being able to prove otherwise.
(e)Public Order Act 1986 Offences - Riot, Violent Disorder, Affray
Riot, as defined under s 1 of the Public Order Act 1986 (POA) a very serious offence that consists of at least twelve people acting together must use or threaten to use unlawful violence in such as way that causes, or has the ability to cause, a riot.
Andreas with his five friends constitute only six people, which means that the actus reus for riot is not satisfied.
By contrast s 2 of the POA shows that the requirements for violent disorder are easier to satisfy. There only requires to be three people who do not need to be acting within the framework of a common purpose. The requirement is that the three perpetrators must utilise or threaten to use ‘unlawful violence’ to an extent that any reasonable and firm member of the public would ‘fear for his personal safety’. It was also established in R v Fleming that the offence will hold even if only one or two out of a group are held to have the necessary mens rea to fully constitute the crime.
A ‘person of reasonable firmness’ is defined is hypothetical terms, which means that the physical presence of other people is unnecessary, which is in contrast to the offence of breach of the peace. This is also an objective assessment and therefore excludes the actual reactions of those who are either easily frightened or are exceptionally brave. The fear must also be for the safety of oneself as opposed to any concern for others. Further to the actus reus, the offence is capable of being committed in either private or public places in accordance with s 2(4) of the POA.
With regard to the mens rea of violent disorder, is, in accordance with s 6(2) of the POA, the presence of intention or an awareness that the behaviour being executed is or could be considered as violent, or may merely threaten violence. This was established in the case of R v Hebron whereby the action of shaking the fist and shouting ‘Kill the Bill’ was held to be sufficient to constitute the crime.
The situation with Andreas and his five friends perfectly fulfils the requirements of the offence of violent disorder as fights did arise between all members of the group and the security guards but the offence was also satisfied with the giving of taunts to the bar staff, who would have all feared their safety as reasonably firm individuals. In addition the threats of violence were both clear and intentional.
Andreas and his five friends are guilty of violent disorder.
Affray carries The exact same requirements as violent disorder, except that there is no minimum number of participants. However the effect of joint behaviour requires to be considered where more than one person in involved.
The requisite violence or threats of violence require to be directed at someone and must be accompanied by threatening actions in accordance with s 3(3) of the POA but something akin to a shaking of the fist is satisfactory although violence directed at property is not enough as stated under s 8 of the POA.
The problem with this offence for the current case is that the only display of violence that actually accompanies the taunts is that of the throwing of the wooden stave that hit the club door. If it can be proven that the throw was intended to hit someone but missed, affray would be established. However, this does look like a mere act of violence against the premises, which is not enough under s 8 of the POA.
In any case, violent disorder is the far more suitable offence for this scenario as it the best of the POA offences to fit the facts.
(f)The Common Law - Breach of the peace
This Common Law offence is best described by Watkins LJ in R v Howell who states that:
“We are embolded to say that there is a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance.”
The difference between this offence and the POA offences is that each of the elements specified by Watkins LJ above are subjectively assessed. This therefore means that the imminence of harm that is feared is determined on a case by case basis as was confirmed in the case of Moss v McLachlan where Skinner J stated that there needs to be a ‘close proximity both in place and time’.
This stricter, subjective approach does not affect the current situation with Andreas and his gang, since the threat of violence was highly likely and the bar staff were clearly in fear of being assaulted.
Andreas and his gang are guilty of breach of the peace.
The nature of this demonstration by Leyton Biggs best fits the nature of a procession, which requires to be distinguished from a static assembly. The only description given is that of Lord Goddard in Flockhart v Robinson in which procession is said to be:
“not a mere body of persons: It is a body of persons moving along a route”
Public Processions are also covered under s 16 of the POA, whereby there is the requirement that they take place in a public place, which is defined as any highway and any place which, at the time of the procession is accessible to the public.
Leyton Biggs started his procession in the public place of the centre of town and then proceeded on the road to the University. He therefore should have given notice of this procession to the police in accordance with the requirement as it is set out under s 11 of the POA. In giving this notice, Leyton would have to demonstrate that the procession carries one of three purposes, which are to demonstrate support or opposition to the views of another person or institution, to publicise a cause or for memorial purposes.
Leyton would also have had to give this notice at least six clear days prior to the proposed date of the protest, which therefore excludes the day of notice and the day of the procession. The way in which notice is given is dealt with under ss 11(3)-(6) of the POA. Within this part of the Act it is stated that notice should have been delivered either by post or by hand and indicate the date of the proposed procession, which will include the start time, the intended route and Leyton’s name and address as he is the person who was organising the procession. The destination of delivery was to have been the police station whose jurisdiction covers the starting point of the procession.
Leyton’s failure to give notice amounts to a summary offence in accordance with s 11 of the POA. Where however an assembly goes ahead, the police do not have an immediate power to ban the assembly for want of such notice. The reason for this is that notice is not an application for permission to hold the assembly but is merely ‘notice’ for the sake of keeping the police informed so that they may set aside resources to ensure that any unrest is dealt with on the day of the procession.
The powers of the police on the day are the same as they would have been for a procession for which notice was given. There are two types of powers that the police possess which are, firstly, the power to impose conditions under s 12 of the POA. This power is held by the senior officer concerned with the procession. Secondly, the chief officer of police has the power to ban a procession in accordance with s 13 of the POA.
In the case of the former, where the procession is underway, s 12(1) of the POA allows for the imposition of conditions as and when he deems them necessary and may include changing the route or prohibiting the entering of specific public places. If there is failure to comply with any such conditions, the perpetrators, such as Leyton, would be guilty of the offence under s 12(6) of the POA. There is also the power of arrest without warrant where the police officer reasonably believes that a person is committing this offence by, for example, retaining the original route of the procession. This power also exists under s 25 of PACE 1984.
The power to ban a procession rests with the chief officer of police and in accordance with s 13 of the POA, the ban can only be made where there is concern that unless a ban is made, serious public disorder will occur. In London, such a banning order must be accompanied with consent from the Home Secretary. The issue with a procession that is already underway is however extremely difficult given that the order does require to be put into writing. Instead, the police will have the powers to initiate arrests of anyone they reasonably suspect of being guilty of any of the arrestable POA offences or breach of the peace, which are described above under question 1.
The powers of arrest without warrant are provided under s 24 of the PACE for arrestable offences where police may arrest anyone who is or was guilty or is committing or reasonably suspected of committing or about to commit or in the act of committing an arrestable offence.
The only common law established power of arrest is in fact in relation to breach of the peace. The case of R v Howell states that a police officer may arrest an individual who is causing a breach of the peace or whose behaviour leads the officer to reasonably believe that there is an imminent breach of the peace or where the breach has occurred and reoccurrence is also believed. The nature of the offence has been described above under question 1. In relation to a reasonable apprehension of an imminent breach of the peace, the Court of Appeal has emphasised in the case of Bibby v Chief Constable of Essex that the power to arrest in this case must be exercised in only exceptional circumstances where it is obviously necessary. This therefore means that the police cannot arrest a bailiff who is trying to take possession of goods to satisfy the debt and they also cannot arrest a man who is trying to re-enter his own home following a domestic dispute.
The court of appeal clarified the use of the police power of arrest where the actual breach of the peace has not taken place but is reasonably apprehended by the police officer. In the first place and, with the same vocabulary of the Court, the threat to the peace requires to be a justification of the removal of liberty. Secondly, the threat must directly derive from the person arrested. Thirdly, the conduct must interfere with the rights of others and fourthly, the natural consequence of the conduct has to be violence from a third party which must not be unreasonable. Finally, the conduct of the perpetrator of whom a reasonable breach of the peace is apprehended must be unreasonable.
The requirement that the conduct is unlawful was a new requirement for this common law offence and is a direct product of the Human Rights Act 1998, in particular, Articles 5 and 10 of the European Convention of Human Rights and Fundamental Freedoms (ECHR).
 R v Molony  1 AC 905
 supra note
  1 AC 455
  3 All ER 1
  3 WLR 382
  2 QB 396
  AC 341
  AC 510
 R v Sullivan  Crim LR 46
  2 All ER 833
  AC 807
 R v Phillips (1987) 86 Cr App R 18
  AC 443
  3 WLR 737
 (No 1 of 1975)
 See for example Thornton v Mitchell  1 All ER 339
  2 QB 981
  1 QB 59
 (No 3 of 1994)  3 All ER 936
 (1985) 81 Cr App R 150
 supra note 74
 at p 157
  QB 741
 Supra note 74
 (1985) 81 Cr All R 150
  1 WLR 425
  2 KB 124
 [1967 2 AC 187
 supra note 83 at p 195
 (1986) 82 Cr All R 5
 supra note 83
 [1861-73] All ER Rep Ext 1806
 R v Dalloway (1847) 2 Cox CC 273
  Crim KR 195
 Cox v Riley (1986) 83 Cr App R 54
 1971 Act, s 5(2), also R v Smith (David)  1 QB 354
 R v Allan and Others  1 QB 130
 s 1(1)(a), 1968 Act
 s 1(1)(b), 1968 Act
  1 QB 1053
 s 3, 1968 Act
 s 4, 1968 Act
 s 5, 1968 Act
  3 WLR 914
 This defines ‘wounding’ under s 18 of the 1861 Act. Moriarty v Brooks (1834) 6 C & P 684 per Lord Lyndhurst.
 (1983) 76 Cr App R 234
 R v Constanza  Crim LR 576
 (1983) 78 Cr All R 276
 R v Abdul Mahroof (1988) 88 Cr App R 317 and R v Fleming  Crim LR 658
 supra note
  Crim LR 839
 s 3(2) POA
 I V DPP  UKHL 10
  QB 416
 supra note at p 427
  ILI 77
  2 KB 498
 s 16(a) POA
 s 16(b) POA
 Broadworth v Chief Constable of Thames Valley Police  Crim LR 924
 s 24(5) PACE
 s 24(5)-(6) PACE
 s 24(7) PACE
 s 24(4) PACE
 supra note
 The Times, 24 April 2000
 Foulkes v Chief Constable for Merseyside  3 All ER 705
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