TO PERPETRATE A CRIME MEANS TO COMMIT ITS ACTUS REUS WITH THE REQUISITE MENS REA

Conduct v. Circumstance Rape (Act of sex v. absence of

consent)
Result crime murder (x stabbed victim v. the death was
caused by xs conduct)

PAGE 3

ACTUS REUS

Every Criminal Prosecution must

be proof of the actus reus.

Actus Reus = Conduct + Circumstances

Can include an omission (A failure to act/ Omission
can create criminal liability)

PAGE 2

External and Physical Elements

of a crime

This occurs when:

1. A breach of duty to Act in a particular manner.

1 Haughton v. Smith [1975] AC
2 Mitchel & Anor v. Glasgow City Council

[2009]

[An omission does not ordinarily attribute criminal liability. It only does when
there is some additional feature transforming a mere omission into a breach
of legal duty to take reasonable steps to try and safe guard the person from harm
or injury may arise due to the accused playing a causative link in the train of
events leading to this, a duty then arises to minimize or avert risk. Sometimes its
a relationship between the victim and accused or a relationship between the
defendant and the place where risks arises, sometimes its the assumption by the
defendant of responsibility for the person at risk or injury.]

2. Actus reus of an offence is defined as including an omission

Actus Reus of offence legislated to

include omission

R v. Dytham [1979] Common Law Duty on Police Officer

DPP v. Bartley Criminal Court [1997] if a public

Section 19(1) of the Criminal Justice Act 2001 a

to perform a duty and fails to intervene

official does so without lawful excuse
duty not to with hold information 1) to prevent the commission
of a crime, 2) failing to give information regarding apprehension
of a suspect

Where omissions dont create a duty Withholding Life Support

Airedale NHS Trust v. Bland [1993] Discontinuing life support allows a patient to die
as a result of a pre-existing condition. Lawful as long as he does not commit such a breach of a
duty to patient.
Re: Ward of Court [1995] Discontinuing life support allows a patient to die as a result
of a pre-existing condition. Lawful as long as he does not commit such a breach of a duty to
patient.

OMISSION LIABILITY
1)
2)
3)
4)

Blood or Familiar Relations

Parents and Children R v. Gibbons & Anor [1918] withholding food and neglect
Spouses DPP v. OBrien [1998]- There lies a duty to a man cohabiting with his wife and mother of his children
Siblings R v. Stone and Anor [1977] Duty arose due to sibling relationship. [See also voluntary assumption of
risk]

5) Siblings R v. Evans [2009] Duty arose due to sibling relationship regarding heroin overdose where sister knew
she was overdosing.

6) Voluntary Assumption of Responsibility - R v. Stone and Anor [1977] Duty arose as they had given
7)
8)

sister food and looked after her but then neglected her and she then dies, they assumed the risk for her.
See Also R v. Nicholls She looked after grandchild who dies as a result of her neglect
Contract R v. Pitwood [1902] Duty arose as the an employee had a contractual duty to open and close a gate,
cart went through gate after he forgot to close it and people were killed.
Creation of Danger R v. Miller [1983] - Fell asleep and left a cigarette burning which caused damage to
property he awoke saw mattress was smoking and then did nothing about it.

Factual Causation
Causation is not necessary in conduct
offences Where the accused conduct
caused a result
R v. Nette [2001] distinguishes factual
causation and legal causation
Factual Causation is But for test and
includes the medical, mechanical or
physical elements of the crime

CAUSATION

Legal Causation
In order to attribute legal causation there
needs to have contributed to the result in
more than a mere factual way.
R v. Maybin (2012) - Two people punched a
victim and it was undetermined which blow
caused the death

Break in the chain of causation -Novus Actus Interveniens (Must be voluntary conduct/ Extreme
Negligence)
Medical Intervention
Withdrawal of life support
1) R v. Steel [1981] The withdrawal of life support does not break the chain of causation provided doctor is competent
and careful .
2) DPP v. Dunne [2014] - As long as decision to switch off life support is lawful and proper it does not break the
chain of causation
Medical Negligence (Must be extremely negligent in order to qualify)
1) R v. Jordan [1956] death resulting from any normal treatment employed to treat an injury flowing from a felonious
act may be regarded as having been caused by the felony.
2) R v. Smith [1959] Court found that the treatment was wrong but that the wound created during the felony was an
operating and substantial cause of the death and thus it did not break the chain of causation. The second cause must be
so overwhelming for it to break the chain of causation.
3) R v. McKechnie (1991) Only an extraordinary and unusual decision by doctors would break the chain of
causation.
Non - Medical Negligence (Is the intervening Act so powerful)
1) AG v. McGrath [1960] Third party intervention does not break the chain if it formed part of the normal link.
2) R v. Pagett [1983] - Using your GF as a shield against bullets does not break the chain of causation, as the conduct was
involuntary, they acted in self defense and in the discharge of a lawful duty.
3) Impress v. Rees [1971] So powerful a force that the conduct of the defendant was not the cause but a surrounding
circumstance
4) Environmental Agency v. Empress Co. Only a circumstance that can be considered as extraordinary would break the
chain in causation.
5) In murder Smithers v. Queen [1978] Approved in R v. Maybin Was the accuseds conduct a significant
contributing cause to the deceaseds death (2 tests to consider (Reasonable foreseeability) and (intentional,
independent act) ( should the accused be punished for his actions or is it punishing the morally innocent)
Natural Events (Event occurring in the ordinary course of nature wont break chain of causation)
1) R v. Hallet [1969] A tide coming in caused the victim to drown after he was assaulted not an extraordinary
operation of natural forces)
Victims Conduct
Negligence of Victim1) AG v. Gallagher [1972] Negligence of victim does not break the chain of causation provided the accuseds act is one
of the causes which contributed in a real or substantial way to the death. (Real contribution test)
2) In DPP v. Davis [2001] (Approved in DPP v. Dunne) Contribution to the death in more than a minimal way the
chain is not broken.
Neglecting an injury
1) R v. Flynn [1867] Neglecting an injury and failing to seek medical attention does not break the chain of causation.
Refusing Medical Treatment (R v. Blaue) Egg-Shell Skull Rule in criminal cases)
1) R v. Holland (1841) followed (R v. Blaue) The refusal of treatment does not break the chain of causation.
Escaping Attack
1) R v. Roberts (1972) Woman jumped from her bfs moving car to escape victims reaction reasonably foreseeable.
Victims Own Voluntary Act
1) R v. Kennedy (2008) Supply of drugs freely and voluntarily administered broke the chain of causation.

Conduct and Circumstances

require proof of corresponding
mens rea.
In order for mens rea there must
be proof that conduct was
1) Voluntary Conduct or
2) Reckless Conduct or
3) Intentional
Transferred mens rea that intention was
Transferred to different victim.
i.e. intended to shoot X but shot Y.

Mens Rea Guilty Mind

Page 5

Hyam v. DPP although a particular result is not his

aim or purpose, a person intends to cause it if he
foresees it as a highly probable consequence of his
actions. Here, the appellant must have foreseen death
or grievous bodily harm as a highly probable
consequence of her actions. Accordingly, she intended
to kill or to cause grievous bodily harm.

Recklessness A person acts recklessly if (1) he takes a risk (2) taking a risk is unjustified, (3) he is aware of the risk.
( taking an unjustified risk of causing that result, which he is aware of)
Recklessness is a subjective in the accuseds awareness of the risk. A person is objectively reckless if he takes an unjustified risk
of which he is unaware, but of which he should have been aware.
People (DPP) v. Murray [1977]- Spotted off duty Garda after a robbery, he gave chase at which stage he was on duty. He was
apprehending the husband. Wife shot him The question in their conviction of murder was there an onus on proving he was an
on duty Garda. Court held person acts recklessly with respect to s material element of a crime to be reckless when he
consciously disregards a substantial and unjustifiable risk that a material element exists or will result from his conduct.
To be reckless requires a conscious taking of risk.
People (DPP) v. Cagney[2008]- Test for recklessness is Subjective irrespective of the crime. An Accused is reckless if he would
foresee the the risk that his conduct would bring about the relevant result.
People DPP v. Clifford [2008] Recklessness in respect of rape [i.e reckless as to whether there was consent or not] test as
held in Murray.
Law in England and Wales
Subjective Test for recklessness in England and Wales was established in cases like R v. Cunningham [1951], and R v.
Mowatt
Test changed in R v. Cadwell [1982]- included elements of both subjective and objective variety Deciding to ignore risk of
harmful consequences resulting from ones acts that one has recognized as existing and failing to give any thought to whether or
not any there are any such risks in the circumstances where if it were given it would be obvious.
Intention sometimes it is necessary to prove that the accused intended the result.
R v. Moloney [1985] person may intend to achieve something without desiring to do so.
R v. Lewis a person may intend to achieve something without having a motive for doing so. Proved absence of a motive is an
important fact in favour of the accused conversely proved motive is may be an important factual ingredient. See also (Clifford v.
DPP).
A person may have intended to achieve something without premeditating it. Intention can be formed on the spot.
R v. Walker and Anor [1989] - A person intends to achieve something if it is his aim or purpose. (Direct purposive intention sees
(DPP v. Murray) (Not only did he foresee but willed the consequences of his actions)
DPP v. Douglas and Anor [1985] Unless accused has expressed intent, it can only be ascertained from a consideration of his
actions and surrounding circumstances.
The recklessness principle the more reckless a person is as to whether or not he causes a particular result , the more likely
he intended such a result.
An accused is presumed to have intended the natural and probable consequences of his actions
Its a rebuttable presumption which prosecution must prove has not been so rebutted beyond reasonable doubt see DPP v.
McBride [1997]
Hyam v. DPP [1975] Circumstances which give rise to intention even if it is not the intention or purpose Accused set fire
to a house with intention to scare people died a person intends a result if the consequences of it are highly probable
House of lords in R v. Maloney [1985] departed from this strict approach and held there was a difference between intent and
foreseeability but that intent may be inferred from certain foresight. In R v. Hancock v. Shankland reverted to the position the
greater the probability of a consequence the more likely it is that the consequence was foreseen, and if the consequence was
foreseen the greater the probability it was intended.
R v. Nederick [1986] - jury can infer intention when they feel sure that death or serious injury was a virtual certainty of the
accuseds conduct and the accused appreciated it.
R v. Woollin [1998] Test ( 1) A result is intended when its the actors purpose (2) a result is intended although not the
purpose when the result is virtually certain consequence of the act, the actor is aware it is a virtual certainty of the act.
Clifford v. Dpp [2008] court endorsed indirect/oblique intention to mean the closer the conduct comes to inevitably
causing the consequence the more likely the court will accept it is the intention and the more obscure the consequence the less
likely the court will infer an intention.

Strict Liability

Minister of Justice v. Dolney [2008] Consent is not

a Defense to Assault causing Harm in terms of
Section 3
Assault causing harm is a strict liability offence.

The general rule requires conduct, circumstances and result to coincide with mens rea. The conduct must always be voluntary.
Stricy liability offences do not require the corresponding proof of mens rea. If the actus reas has been proved the accused is
guilty of the offence.
Whitehouse v. Lemon Gay News [1979] - Blasphemy is a crime of strict liability.
Corway v. Independent Newspapers [2000] - Whitehouse not followed in Ireland.
Gibson v. Sylviere [1991] Outraging public decency- strict liability no need to prove recklessness or intention. Only voluntary
display.
Kelly v. ONeil [2000] criminal contempt was previously strict liability held mens rea would be necessary now.
Legislation is the most common place where an offence is one of strict liability where it is silent it is presumed it carries both
(DPP v. Murray[1977])
The presence of mens rea as an ingredient of crime is a rebuttable presumption. Sherras v. De Rutzen [1895]
People DPP v. Ebbs [2011] Absence of mens rea an important feature and the absence of it
THE OBJECT OF THE LEGISLATION Madam v. Dublin United Tramways [1929] overloading of train did not
have to prove intention to overload or recklessness strict liability as the intention of legislation was to protect
public.(intention considered in sentencing) (this case also only attracted a result which did not carry the stigma of a
criminal conviction)
Maguire v. Shannon Regional Fisheries [1994] Strict liability to offence of pollution would create greater vigilance on
societies part.
Shannon v. Regional Fisheries knowingly discharged sewerage into river as funding was not forthcoming court said it was
undesirable for such offences to be strict but this case mens rea existed anyways. ( a fine of 25000-00 or 5 years imprisonment
are clearly not trivial or not strictly criminal they clearly are)
THE MORE SERIOUS THE OFFENCE THE LESS LIKELY IT WILL BE ONE OF STRICT LIABILITY
See- Sweet v. Presely [1970] scandal to imprison someone for a serious crime who was not blameworthy.
R v. Brown [2013] court held that where a crime carries serious punishment or stigma there is a need for a requisite mens
rea.
THE INTENTION OF THE LEGISLATION Court will decide what Oirachtas intended and consider the legislation as a whole together with other wording within the
legislation. If other sections include mens rea and the one under consideration does not then it will be an offence of strict
liability.
CC v. Ireland and Others S(1) 1 of the Criminal Law Amendment Act 1935 is inconsistent with the Constitution - a man
who engages in sex with a girl under 15 years old should not attract an approach which is one of strict liability The court held
one year after deciding CC v. Ireland that the Act was inconsistent with the Constitution in respect of Article 40 (The right to
liberty and fair treatment of their good name) Therefore the consequence was that there is little chance an offence under strict
liability which carries a serious penalty will pass constitutional scrutiny.
In B(a minor) v. DPP [2000] court it necessary to consider the reasonable and honest belief test to determine girls age (
committing act of indecency) upheld in R v. K [2002]
The useful definition in Gammon v. Attorney General (Hong Kong) 1985 1) Presumption that mens rea is required before a
person is guilty of a crime, 2) presumption is strong where offence is truly criminal 3) Applies to statutory offences and can be
displaced only if it clearly or is necessary to give effect to the statute.4) can only be displaced when it is for an issue of social
concern or public safety 5) Even where a statute is concerned with such an issue the the presumption of mens rea stands unless it
can be shown that the creation of strict liability will be effective to the promotion of the statute by encouraging greater vigilance
to the commission of a prohibited act.

Accomplices

Criminal liability may extend to those that assist in

or participate in a crime

Innocent Agent - a different person commits the actus reus of

the crime without intention or any willingness to do so.
A person is an innocent agent if he 1)lacks requisite mens rea
2)has a defense 3)lacks criminal responsibility.
R v. Cogan and Leak [1976] man procured a person to have
non consensual sex with his wife did not know she wasnt
willing husband guilty of committing offence other man only
committed actus reus.
R v. Bourne[1952] coerced his wife to have sex with a dog
wife not guilty innocent agent.
Children Under 12 years may be innocent agents Children
under 10 are completely innocent agents.

Accessories and their criminal liability is governed by Section 7(1) of the Criminal Law Act 1997 or
s22 Petty sessions (Ireland) Act 1851
Any person who procures, aides, abets or counsels the commission of an indictable offence is liable as a
principal offender. (guilty of an offence of murder as an accessory)
The Actus Reus which must be proved:
Aids- A person aids the commission of an offence if he assist in its commission wide variety of form
i.e. lookout, providing murder weapon.
Abets Incite, instigate or encourage similar to Counsel in fact the same only that abets may be at
the time of the crime where as counsel may be prior to its commission.
The SMALLEST ENCOURAGEMENT constitutes abetting or counseling R v. Giannetto [1997]
THERE must be a causative link between encouragement or incitement and the commission of
the offence.
Generally Speaking the mere presence at a scene where a crime is committed will not be sufficient to
demonstrate a causative link R v. Coney [1882] If however someone is merely present and their
presence is not accidental it will be for the jury to decide whether such presence can be attributed to
some causative link.
In AG v. Ryan (1966)- mere presence did suffice as there was a causative link between commission of
the offence and Ryans presence i.e. he was the leader of the gang. Knowingly lend him support in his
enterprise i.e. the man slaughter is sufficient to mean he is abetting Meaning that if he is present and he
knows his presence will assist in the commission of the crime it will suffice. See in this regard R v.
Charkson [1971] heard a rape did not participate or encourage were found not guilty not sufficient
that the accused derived assistance from their presence but that they intended their presence to assist.
In DPP v. Joran and Ano [2006] The encouragement need not be express and can be implied but
mere presence cannot be successful to secure a conviction.
DPP v. Boyle [2010] upheld accused must encourage or incite mere presence does not suffice.
Procures procure an offence when you for example place alcohol in another persons drink causing
them to commit the offence of drink driving.

COMMON DESIGN - PAGE 7

Accessory After the Fact
Section 7(2) of 1997 Act 1)a person has committed an arrestable
offence 2) any other person who knowing or believing him to have
committed such an offence or of some other arrestable offence
3) does without reasonable excuse act with intent to impede his
apprehension or prosecution shall be guilty of an offence
Must be proved that all three factors were present.
It does not have to be proved that X knew the exact crime Y
committed it is enough to prove that he believed Y had committed
some arrestable offence.
Concealing an arrestable offence for reward
Section 8 of the 1997 Act x says to y if he catches him breaking
into house give me 20k and I wont tell anyone unlawful if he
says I wont tell anyone if you giver me money for window- not
unlawful reasonable compensation fine.
Withholding Information Section 19 of the 1997 Act guilty
of offense if they have info that could prevent crime or have info
that prevents
Note also Section 2 and 3 of Criminal Justice Act 2012 a crime
to withhold info for crimes against children and vulnerable
people.

Common Design Cont.

Common Design An agreement between two or more persons to commit a crime (only applies if
something went wrong)
R v. Stewart and Schofield [1995] Is there a difference between being guilty as an accessory or parties
to the common design? Court said it is not the same thing.
A person who is a mere accessory is only a secondary party to the commission of the crime although he
may be charged as a principal offender. Where the crime is joint design the allegation is that the
defendant participated in the criminal act of another.
R v. Gnango [2012] man shot a person who was not intended victim whilst in a gun-fight. Court could
not decide whether the party who did not fire the shot was a party tyo common design or a mere
accessory.
Any offense involving an agreement may be considered as a crime by means of common design.
R v. Anderson and Morris [ 1966] Parties who embark in criminal enterprise jointly may be liable for
consequence which are unusual. i.e. X and Y rob a bank. X shoots Z. Y is liable.
DPP v. Murray [1977] going beyond the scope of the common design need to determine what the
agreement is and was and the communication between the parties. i.e. recklessly shoot Garda. If you
go beyond common design may not be liable.
AG v. Ryan [1966] mere contemplation sufficient not only an agreement (where accused realized if his
men carried gun and met rival - gun likely to be used and outcome would be to injure)
DPP v. Eccles [1986] - overcoming resistance of Garda force would be used meant that firearms and
shooting Garda would be part of common design.
DPP v. Cumberton - accused arranged for party to be a particular place on a particular day accused
maintained he was going to get a good hiding not going to be killed ( however cause of intention to cause
serious harm part of common design) responsible for the outcome of what may be reasonably
contemplated within the scope of the plan.
R v. Powell and R v. English [1999] may be liable for the act which he contemplates may be carried
out by the other in the course of an enterprise even if not expressly or tacitly agreed.
R v. Powell and R v. English [1999] ought to be in the manner the accused foresaw death was by
knife not club and so murder conviction quashed.
However the consideration in Powell and English not favored in Ireland I.e. DPP v. Doohan [2002]
hired hit man to cause serious injury to him hit man shot and killed him with gun the method did not
exceed scope. All that is necessary is an agreement to cause serious injury is all that is necessary,

Abandonment of Common Design

X, Y and Z are going to rob a bank. that morning, X decides not to
go and the others do it without him May be guilty as an accessory
or under doctrine of common design but he may be able to use the
defence that he abandoned/withdrew from the common design
R v. Whitehouse [1940] for defense - Must be the absence of
exceptional circumstances, something more than mere mental
change of intention and physical change of place by those
associated who wish to dissociate themselves from the
consequences attendant upon their willing assistance up to the
moment of the actual commission of the crime. Accused must
have indicated intention to withdraw in a timely fashion (what
constitutes timely communication will depend on facts of case) if
communication is impossible, the guarda should be informed.
R v. Jansen and Ward [1980] sometimes positive act required
such as telling police.
People v. Ryan [1966] need to communicate withdrawal of
common design not satisfactory to tell parties not associated
with the common design.
R v. Gauthier[2013] 1) there was intention to withdraw
from unlawful purpose 2) timely communication of
withdrawal 3) communication served unequivocal notice 4)
took steps reasonable to the accused to neutralize or cancel
out participation

MURDER

Homicide

Section 4, Criminal Justice Act, 1964 - Where a person kills another unlawfully the killing is not murder unless the accused
intended to kill or cause serious injury to some person whether the person was actually killed or not
To secure a conviction for murder it must be proved that 1) The accused conducts caused the victims death actus reus 2) The
accused intended to kill or seriously injure some person mens rea The killing was unlawful (absence of any defense)
R v. Gnango [2012] It does not have to be proved that the accused intended to kill or seriously injure the victim doctrine of
transferred malice
DPP v. McBride [1997] - prosecution must prove beyond all reasonable doubt that the accused intended the natural and probable
consequences of his actions and does not have to prove that he intended to kill specific victim i.e. if I intend to shoot and kill y but
kill x then I am guilty transferred malice.
Punishment - Mandatory sentence of life imprisonment
Murder under s 3 of 1990 Act -on duty guard or prison officer, foreign head of state etc., murders involving the furtherance of
aims of certain illegal organizations [previously carried death penalty this has been abolished]
MANSLAUGHTER - Competent alternative to murder (Sec. 5 of Offences against the person Act 1861 - Maximum punishment life imprisonment mandatory
in murder)
Two Types of Manslaughter - Voluntary and Involuntary Manslaughter
Voluntary Manslaughter Is the unlawful and intentional killing of a person where at the time of the killing the following facts are present: 1) Whilst acting in self
defense the accused exercised more force than should be reasonably exercised although no more than he honestly believed necessary 2)He had lost sudden, temporary
and total control of himself as a result of having been provoked See provocation 3) responsibility for his conduct diminished.
Involuntary Manslaughter means Accused did not intend to kill or cause serious injury to deceased.
Assault Manslaughter- R v. Holzer [1968] 1) Accused assaulted deceased, 2) Accused caused deceaseds death 3) At the time of the assault the accused intended to
cause less than serious injury but more than trivial or negligible injury.
Criminal and Dangerous Act Manslaughter - R v. Kennedy [2008] 1) Accused committed an unlawful act 2) Such act was a crime R v. Crosbie and Anor [1966] 3)
The accuseds act was a significant cause to the deceaseds death. 4) The accuseds act was objectively dangerous R. v. Larkin [1943] ( Where a person engaged in
some form of criminal act and the act is dangerous i.e. likely to injure another person, and quite inadvertently causes death he is guilty of manslaughter)
DPP v. Horgan [2007] unlawful and dangerous act manslaughter arises where 1) act causing death constitutes a criminal offense and poses a risk of bodily
harm to another 2) the act is one which an ordinary reasonable person would consider dangerous and likely to cause bodily harm 3) dangerous is to be judged
objectively. See Also Attorney Generals Reference [1997] man stabbed woman in womb baby died 121 days later.
Criminal Negligent Manslaughter - People AG v. Dunleavy [1948] requirement that criminally negligent conduct can be considered to be manslaughter but
negligence of a high degree Dunleavy vehicular manslaughter driving wring side of road at night with no lights killed cyclist negligence must be high and
conviction not upheld.
DPP v. Callagh [1999] rust at funfair question what duty of care was owed question of degree of care owed i.e. negligence.
Joel v. DPP [2012] death of another is caused where there is a very high degree of negligence caused the death in the circumstances in question any reasonable
person would have seen that the risk was so serious which was unjustifiably taken with the life of another.
Dangerous Driving If x knocks down y and kills him while driving criminal negligent manslaughter if cannot prove criminal negligence sill may be guilty under
Section 53 of the Road Traffic Act 1961 People v. Quinlan [1963] driving in a manner of a prudent motorist , having consideration to all circumstances, would
clearly recognize as involving a serious and direct risk to the public - 10 years
Infanticide Mother who is imbalanced kills her child under 12- Section 1(3) of the Infanticide Act 1949 - and amended by S22 of the Criminal Law Act 2006. ( what
reduces the crime from murder to infanticide is the imbalanced mind)
Destruction of unborn life - Article 40.3.3. means a person may be guilty of murder or manslaughter if it kills the unborn child see also Roche v. Roche [2010]
SUICIDE Flemming v. Ireland Offence contrary to Section 2(2) of the1993 Act - precludes assisted suicide as upheld in Flemming. However if you commit actus
reus of offence with mens rea of murder may be guilty of murder.

Non Fatal Offences

Against the Person

NON-FATAL OFFENCES AGAINST THE PERSONS governed predominately by Non Fatal Offences Against the Persons Act 1997 NB this act
will be provided during exam so question will come up from this chapter.
ASSAULT (fine or six months imprisonment) Section (2)(1) Actus Reus A person who without lawful excuse voluntarily 1) directly applies
force to or causes impact on the body of another, 2) causes another to believe on reasonable grounds that he or she is likely immediately to be
subjected to force or impact without the consent of the other. (slightest touch constitutes force) applying force directly or indirectly- heat, light,
electric current, noise. See DPP v. K (a minor) -Boy went to toilet had acid poured it into a dryer next person using it was hurt boy liable.
R v. Ireland [1998] - proposition that a gesture may amount to assault but words can never suffice is unrealistic as a thing said is a thing done. A thing said
could cause an apprehension of immediate personal violence. In this case a court said a person who suggested to a woman come with me or ill stab you is
assault as are silent phone calls depending on the facts. It depends on the impact of the person accosting a person requires immediate apprehension of
imminent danger.
Without lawful excuse Sec. 18 of the 1997 Act. lawful excuse means with a defense 1) self defense defend person or property 2) prevent a crime,
effect or assist with a lawful arrest conduct reasonable in circumstances as he honestly believed them to be.
Must be proved that accused did not consent to assault certain times assault is consented to in an implied way - Consent Collins v. Wilcock
[1984] - i.e. at a party or in a supermarket consent to jostling or a handshake would not be an assault as persons are aware in society by attending such
places there might be some contact. Sec. 2 of 1997 Act Implied consent
Mens Rea of Assault is intention or recklessness.
Assault causing harm Sec. 3(1) (12 months/or 5 years on indictment plus unlimited fine) prove- 1) assaulted another person and 2) the assault caused
harm to that person.
must be unbroken chain of causation between assault and the harm.
In assault causing harm consent is not a defense to crime and consent will not negate criminal liability- See R v. Brown and Others [1994] Sadomasochistic ritual of beating and bodily harm in UK same as Assault causing harm House of Lords said consent did not negate criminal liability.
Consent is valid in lawful activity like a doctor operating on you, sporting activity etc. - law has an obligation to restrict society harming themselves and
others. Activity involved a real danger and corruption of young men and in this case was good luck rather than good judgment that prevented serious injury.
Applied in R v. Emmett [1999]
Laskey v. UK [1997] Did not breach article 8 right to privacy.
R v. Wilson [1996] distinguished hot knife on buttocks no more dangerous than tattooing.
Assault causing harm strict liability offence - Law Reform v. Dolney [2008] consent not a defense and no need to prove mens rea of intention or
recklessness!
Causing Serious Harm (Sec 4(1)) 1997 Act (life imprisonment/ undefined fine) a person who intentionally or recklessly causes serious harm to
another is guilty of an offense. 1)Accused caused the harm 2) serious harm was intentionally or recklessly caused. Injury does not have to be permanent to
constitute serious harm. DPP v. Kirwan [2005] an injury does not require proof of an injury with protracted or long term consequences. (Serious
harm does not include harm of the mind which is the case of harm) Section 1 defines serious harm. Treatment of injury may transform harm into
serious harm. No protracted impairment of the body is necessary.
Threat to Kill or cause serious harm Section 5 (12 months / 10 years on indictment)
Coercion (Section 9 (1) (12 months/5 years) engaging in certain specified conduct for the purpose of forcing another to 1) do something that he has a
lawful right not to do 2 not to do something he has a lawful right not to do. No need to prove he achieved purpose to convict.
Harassment / Stalking (12 months/ 7 years) (Section 10 (1)) persistently watching, following pestering, besetting, or communicating. DPP v. Lynch
[2010] (masturbation watching children on separate occasions still persistent) requires mens rea to act intentionally or recklessly and seriously
interferes with the others peace or privacy or causes alarm , distress or harm. That these acts are such that a reasonable person viewed objectively would
realize that the acts would seriously interfere with the others peace or privacy, cause alarm, distress or harm.
Demands for debt and payment - Section 11 (1) of the 1997 Act (Class C Fine) the demand by reason of their frequency are calculated to subject the
detor or his family member to be alarmed, distressed, or humiliated, or he falsely misrepresents there are criminal proceedings pending for non payment, or
he misrepresents he has some lawful right to enforce such debts.

Non Fatal Offences

Against the Person

NON-FATAL OFFENCES AGAINST THE PERSONS

Poisoning - Section 12 (1) of the 1997 Act (12 months/ 3 years) intentionally or recklessly administers to or causes another to take a substance which they
know to be capable of interfering substantially with the others body functions. (Sleep or unconsciousness is satisfactory) consider date rape drugs
2 offences 1) administering poison (R v. Gillard (1988) sprayed poison in face) 2) causing a poison to be taken by another person.
Mens Rea of poisoning the administration of poison was intentional or reckless, that the accused knew the victim did not consent and that the accused knew that
the substance was a poison.
Endangerment Section 13 of the 1997 Act (12 months/ 7 years)- a person who intentionally or recklessly engages in conduct, which creates a substantial
risk of death or serious harm to another. (Serious harm defined in S 1 of the Act) DPP v. Cagney [2008] may be unconstitutional as it may be foul of
doctrine of vagueness. (Art. 38.1) ( Doctrine confirmed in AG v Cunnigham [1932] // King v. AG [1981])
Endangering Traffic Section 14 (1) more specific 12 months / 7 years. Intentionally places or throws dangerous obstruction onto railway, road street etc.
or affects machinery etc and is aware that injury to person or damage to property may be caused or is reckless in this regard.
False Imprisonment Section 15 of the 1997 Act. (12 months/life) - Taking or detaining or causing someone to be taken or detained or otherwise restricting the
personal liberty of someone without consent.
Bird v. Jones [1845] Surrounding person on three sides does not amount to false imprisonment total restraint of the liberty of another. (Not law as S15 of the
Act does not require this)
Kane v. Govoner of Mountjoy Prison [1988] following a person around and keeping them under surveillance may amount to false imprisonment. must be
specific justification for it. (this case was not imprisonment as they had a right to do so).
False imprisonment may be momentarily Dullaghan v. Hilton and King [1957] (consent dealt with in Sec. 15(2).
Child abduction means child under 16 years.
Applies only to parent ,guardian etc must be appointed by court or an actual guardian.
Removal of children from persons entitled to lawful control S17 of the Act.
SEXUAL OFFENCES S2(1) Criminal law (rape)act 1981
Gender specific mans penis penetrating a vagina who at the time of the intercourse does not consent to it
-at that time he knows she does not consent to it or is reckless about the consent
Sexual intercourse= penetration of vagina by penis. Penetration of mouth or anus by a penis is not sexual intercourse
-the slightest penetration is intercourse (The People (AG) v. Dermody [1956] - the complainant said the accuseds penis entered her vagina a wee bit) -a woman
can revoke her consent at any stage during sexual intercourse, if she does so and the man continues to have sex with her = rape ( it is a contuning act)) Kaitamaki
v R [1985]
DPP v. Morgan [1976] THE MORGAN PRINCIPAL Honest belief that there was consent even if such belief is unreasonable. (however in this case
they were convicted)
The more unreasonable a belief is the less likely it is honestly held. (Section (2)(2) 1981 RAPE ACT applicable to all crimes involving consent.
Sexual Assault- Common law offence =- involves the accused assaulted the alleged victim and the victim did not consent accompanied by circumstances
of indecency and the accused intended the assault to be indecent. R v. Court defines Assault usually any intentional touching of another without the
consent of that person and without lawful excuse. There must be an element of something sexual in nature. Person does not need to be awake or conscious. i.e.
was there a basis that a jury could conclude that it was so irresistible that there was some act of indecency. Must have intended it to be sexual! R v. Bernier
[1998] intend an assault to be indecent without sexual gratification playing with patients balls for his amusement is indecent assault.
Aggravated sexual assault
3(1)-using or threat of serious violence -is such to cause injury, humiliation or degradation of a grave nature to the person assaulted. It does not have to be proved
that a reasonable person would have been gravely humiliated or degraded.
Rape under Section 4- 1990 Act
-penetration (however slight) of an anus or mouth by a penis
Or
-the penetration (however slight) of a vagina by any object held or manipulated by another person
Only the above acts are included under section 4, this DOES NOT INCLUDE digital penetration of a vagina/anus or penetration of anus by an object

Non Fatal Offences

Against the Person

NON-FATAL OFFENCES AGAINST THE PERSONS

Rape under Section 4- 1990 Act
-penetration (however slight) of an anus or mouth by a penis
Or
-the penetration (however slight) of a vagina by any object held or manipulated by another person
Only the above acts are included under section 4, this DOES NOT INCLUDE digital penetration of a vagina/anus or penetration of anus by an object
Section 9 of the 1990 Act Lack of resistance does not mean that consent is present.
Section 14 of the Criminal Law Amendment Act 1935- only applies to three sexual assaults (which is consent not a defense for child under 15)
Capacity
R v Camplin [1845] a person can be so intoxicated to be incapable of consenting to sex. Immaturity, age, mental impairment may negate consent.
A person who is asleep or unconscious cannot consent - R v. JA [2011]
A threat of force does negate consent
A threat by a garda to report a crime does not Rv. Kirby /Neither does a threat to false imprisonment.
Fraud (Fraud as to identity) R v. Elbekkay [1995] (X procures consent by impersonating a husband) Same as attending party climbing into bed
with another mans wife she has sex with you because she believes it to be her husband this is rape. DPP v. C [2001]
Fraud as to nature of transaction i.e. a medical procedure See R v. Flattery [1877] Also R v.Williams [1923]
Hegerty v. Shine state of venial consent does not vitiate consent.
In Papadimitropoulos v. R [1957] false marriage did not negate consent.
R v. Linekar not paying for sex after a promise did not vitiate consent.
Essential element of intercourse is known
DPP v. C [2001] Haggerty would not be followed today as court held all knowledge and understanding of the facts material to the act being
consented to are necessary for consent to be voluntary.
PG v. Ireland Mistake as to age is a valid defense to mistake of someones age in all sexual assaults.
Sexual offences against children
Criminal law (sexual offences) Act 2006
Defines Sexual act- intercourse/buggery between those not married to each other
-an act in s3(1) or criminal law(rape) (amendment) act 1990 (aggravated sexual assault)
-an act described in s4(1) of criminal law (rape) amendment act 1990
Person in authority = parent, step-parent, guardian, grandparent, uncle, aunt, someone who is in loco parentis or responsible for education, welfare or
supervision of child. It shall be a defense for defendant to prove that he or she honestly believed that the child was 15 at the time of the offence
The more unreasonable a belief is the less likely it is honestly held
Section (3) Child under 17 Years same rules apply . Section 5 exempts a girl being prosecuted for sexual intercourse
Sexual offences against mentally impaired
Criminal law (sexual offences) act 1993
5(1)-an offence for a person to have or attempt buggery or sexual intercourse with a person who is mentally impaired OTHER than a person to whom he
is married or reasonably believes he is married to. Sec. 5(2) governs a gender specific offence a male person who commits or attempts an act of gross
indecency with another male who is mentally impaired will be guilty of an offence
Mentally impaired = suffering from a disorder through mental handicap or mental illness which is of such a degree or nature that it renders them
incapable of living an independent life or of guarding against serious exploitation
It shall be a defence against 5(1) and 5(2) to show that the accused (at time of offence) did not know and had no reason to suspect that the person was
mentally impaired
(Remember a person can be so mentally impaired that they are incapable of consent, so rape could also be a possible charge in some cases)
Incest
Ss1 and 2 Punishment of Incest Act 1908 - Close blood relations engage in intercourseS1 offence for a male person to have sex with someone he knows
is his granddaughter, daughter, sister or mother S2 an offence for a woman over 17 to consent to sex with a male she knows to be her grandfather,
father, brother or son Brother and sister also refer to half-brother and half sister.

Offence Against
Property

OFFENCES AGAINST PROPERTY CRIMINAL JUSTICE (THEFT AND FRAUD OFFENCES ACT 2001)
Theft : 4(1) dishonestly appropriating property without owners consent and with intention of depriving its owner of it
It must be proved owner did not consent. (Actus reusof theft is non-consensual appropriation of someone elses property - conduct taking property,
circumstances no consent mens rea dishonestly i.e. intentionally or recklessly) Dishonesty means without a claim of right made in good faith..
Property means money or any other property including things in action and may be tangible or intangible (R v. Morris) possession means to have control
over it. mens rea requires evidence that the accused deprived either temporarily or permanently. Secondly that it was dishonest. Dishonest means without a
claim made in good faith. Proving he did not honestly believe that he was entitled to do what he did. The more unreasonable a belief the less likely it is
going to be held. Exceptions picking mushrooms or fungus for self consumption- bona fida purchaser land cannot be stolen. Cant steal wild animals
unless you kill them.
Robbery: is Theft aggravated by the use or threat of force. Theft transformed to robbery if one of following is proved
1) the accused used force on the person 2) the accused put any person in fear of being immediately subjected to force 3) the accused attempted to put any
person in fear of being immediately subjected to force. ( Slightest touch constitutes robbery see R v. Dawson stole wallet but jostled him)
Resistance not necessary R v. Coulden. Breaking into a car and stealing a handbag scaring someone may be robbery DPP v. Mangan.
Threat or force must have been used at time of or during theft else no robbery. It must also be used for the purpose to enable the theft.
Making a gain or loss by deceptions Section (6) 1 of 2001 Act - Could be constitutionally challenged under doctrine of vagueness. Induces someone to act
or not to act. Must prove accused acted dishonestly.
Obtaining service by deception Section 7.
Making off without payment Section 8 of the Act.
Burglary Section 12 of the 2001 Act. Entering any building or part of a building as a trespasser with intention to commit an arrestable offence.
Rv. Collins Effective and substantial entry. R v. Brown effective i.e. breaking window and leaning in to get goods effectiveness. Rv.Ryan got stuck
burglary upheld. Building means any temporary inhabited item moveable or immovable. Including vehicle and vessel. See Section 12(2) of the Act.
Trespass enter without permission. Permission to enter can be limited to a particular purpose. (enters a property as a trespasser to commit an arrestable
offence , when a person enters building and commits an arrestable offence whilst inside.
Aggravated burglary 13(1) Burglary (must be armed at moment of entry in terms of the first type of burglary or at the time of the commission of the offence
in the second type.) + firearm, imitation firearm, weapon of offence , explosive The accused must have been armed at moment of entry to be guilty of first
type of burglary (this type is committed at moment of entry)The second type is committed after entry when the arrestable offence is committed or attempted.
To be aggravated burglary the offender would have to have been armed at that time. R v. Murray [1972]. Must possess item using your hand is not
sufficient to constitute an imitation. R v. Bentham [2005]
Handling and possessing stolen property Section 17(1) Guilty if , other than in the course of stealing, you know property is stolen or are reckless as to
whether it was stolen, dishonestly receives or arranges to receive it OR undertakes or assists in its retention, removal, disposal for the benefit of another
person or arranges to do so. Must take place otherwise than in the course of stealing it thief not guilty of handling stolen property. To secure a conviction
someone other than the person handling it must have stolen it. DPP v. Fowler DPP v ONeil. Property must in fact be stolen. If x steals a car and sells it to
y for 10 euros and then uses the 10 euros to buy cd the cd is stolen property. Mens rea intention or recklessness.
Forgery and using a false instrumentSect25(1) Actus reus is making a false instrument, it does not need to be proved that the accused ever used it.
Instrument = any document of formal or informal character including maps, plans, graphs, photographs, plan etc etc. Non exhaustive list of documents in
statute It is false if it purports 1) to have been made by a person who did not make 2) to have been made on authority of someone who did not authorize 3)to
have been altered by a person who did no alter it 4) to have been altered on authority of someone who did not authorise an alteration. 4) to have been made or
altered in circumstances in which it was not in fact made or altered 6)to have been made or altered by an existing person where that person does not exist .It is
not a defense to forgery that the instrument was already false by the time the accused altered it. Damaging Property 2(1) Intending to damage someone elses
property or being reckless as to whether or not it is damaged Property = real or personal including money, animals, data Lawful excuse if at the time of the
act the person believed that the owner of the property would have consented to the damage if they had known about the damage and the circumstances OR If
you damage property in order to protect yourself or someone else, your property or someone elses property It is immaterial if a belief is justified or not if it is
honestly held.
Damaging Property- Section 2(1) without lawful excuse damage property of another, reckless or intends to cause damage.
Damaging property endangering life2(2) Offence to damage property INCLUDING YOUR OWN without lawful excuse if you intend to damage
property or are reckless about it AND you intend the damage to endanger the life of another or you are reckless as t whether or not the life of another would
be endangered It does not have to be proved that anothers life was endangered.
Damaging property with an intention to defraud2(3)Proof that the accused was aware of a risk of defrauding does not suffice to secure a conviction . It
must be proved that their purpose was to defraud. Recklessness defined in section 2(6)

DEFENSES:
.

Defense Strict Liability Reasonable Care

MAdam v. Dublin Tramway Reaoanble Care not a defense
in strict liability offences
McGuire v. Shannon Fisheries only considered at
sentencing.

Defenses

The People (DPP) v. Kelly, the onus on the prosecution is not only to prove its case beyond reasonable doubt
but also to negative beyond reasonable doubt any defence raised by the accused
The general rule does not apply in respect of the defences of insane automatism (insanity), diminished responsibility,
and unconstitutionality. If an accused raises any of these defences he bears the burden of proving it on the balance of
probability.
In the scenario outlined, the 9 year old boy, if charged with an offence in respect of his conduct, would be acquitted on
the ground that he was under 12 years of age. Nevertheless, as s 18(3) of the 1997 Act makes clear, X would be able
to raise s 18(1)(d) and (e) of the 1997 Act in his defence.
Force must be Reasonable in the Circumstances as the Accused Honestly Believes them to be.
S 18(1) of the 1997 Act further provides that non-fatal force used by a person for any of the specified purposes must
be reasonable in the circumstances, as he believes them to be
The application of this test is a 2 step process.
First, it must be asked: what were the circumstances as the accused believed them to be? The circumstances as they
existed in fact are irrelivant.
Secondly, it must be asked: was the non-fatal force used reasonable in those circumstances, ie, the circumstances as
the accused believed them to be?
Consider the following scenario:
X has been threatened with death by members of a notorious criminal gang. He has started to carry a knife on his
person solely for the purpose of protecting himself should the need to do so arise. One day, as he is walking on the
street, he is approached by Y. Believing that Y is a member of a criminal gang and the he, X, is about to be shot or
knifed, X produces his knife and stabs Y, who sustains a non-fatal injury. It subsequently transpires that Y was
approaching X to ask for directions. He was not a member of a criminal gang.
There is a special provision governing the use of non-fatal force against a guard, namely s 18(6) of the 1997 act:
a person who believes circumstances to exist which would justify or excuse the use of force under that subsection has
no defence if he... knows that the force is used against a member of the Garda Siochana.
Section 18 of the 1997 Act does not apply to a person who sets out to create a situation in which it will become
necessary for him to use non-fatal force.

SELF DEFENSE CONTINUED

Duress
A threat emanating from another person necessitated my conduct, which, but for the necessity, would have been a crime.
Type of threat only a threat of death or serious personal violence against a person can constitute duress. So, a threat merely to damage property or ruin someones reputation
does not constitute duress in criminal law.
The Immediacy Requirement The threat must be one of immediate death or serious personal violence.
If the accused had resisted the threat and had not committed the crime, would the threat have been executed immediately or almost immediately after the accuseds resistance.
If the answer is yes, then the immediacy requirement is satisfied.
A person who is threatened with immediate death or serious personal violence is expected to display reasonable firmness in the face of it. As Murnaghan J said in The People (AG)
v. Whelan, the threat must of immediate death or serious personal violence must be so great as to overbear the ordinary power of human resistance.
Obligation to counteract the threatA person who is subjected to duress is obliged to avail of an opportunity that is reasonably open to him to counteract the threat. Practically
speaking, this obligation means that the protection of the guards should be obtained if there is a reasonable opportunity to do so.
Generally speaking, if such an opportunity is not taken, the defence of duress will not be available. Clearly, the more immediate a threat is, the less likely it is that there is such a
opportunity.
Self-Induced Duress
X vonuntarily joins a criminal gang. Some years later, he indicates to his comrades that he wants to leave the organisation. They tell him that, if he does leave it, he will be killed.
X continues to participate in the organisations criminal activities and now stands charged with various offences.
The court of Criminal Appeal was confronted with a similar scenario in R. V. Fitzpatrick. The case is authority for the proposition that if a person voluntarily exposes himself to a
situation in which it is likely that he will be subjected to duress, he may not rely on the threat as a defence to any criminal charge.
Types of Duress
There are two types of duress. Dures by threats and Duress of circumstance.. Both types of duress involve a threat emanating from a person.
Consider the following scenario which is an example of duress by threat:X says to Y, Y, I will kill you unless you rob the bank. Consequently, Y robs the bank and is charged
with robbery.
Consider the following scenario which is an example of duress by circumstance:
X says to Y, Y, I will kill you unless you give me 10,000 by the weekend. Consequently Y robs a bank and is charged with robbery.
Note: Duress is a threat emanating from another person
N.o.C. Not from another person but from a certain set of circumstances a person finds themself in.
Necessity of Circumstances
If necessity of circumstances is successfully raised as a defence, the accused is entitled to and acquital.
Where necessity of circumstances is raised as a defence to a criminal charge, the accused is arguing as follows:A threat emanating from the particular circumstances in which I
found myself necessitated my conduct, which, but for the necessity, would have been a crime.
Case: R v. Dudley and StephensBrooke LJ identified the three necessary requirements for the application of the doctrine of necessity as being:(i) The act is needed to avoid
inevitable and irrepereble evil(ii) No more should be done than is reasonably necessary for the purpose to be achieved
(iii) The evil inflicted must not be disproportionate to the evil avoided.
In Re A (Children) (Conjoined Twins: Surgical Seperation) demonstrates that necessity of circumstances can, albeit in exceptional circumstances, be a defence to a charge of
murder.

The general rule regarding the onus and standard of proof applies to the defence of provocation. There is no onus on the accused to prove it on the balance of probability or
otherwise. Rather, the prosecution bears the onus of disproving it beyond reasonable doubt.
Provocation is a defence to a charge of murder only, and operates to reduce the homicide to (voluntary) manslaughter.
Provocation is conduct that causes a person to lose self-control.
In most cases the provocation relied upon will be a single incident, eg, an argument. However, cases can involve cumulative provocation. This is where the accused was
subjected to provocation over a period of time. In such cases the jury will be instructed to have regard to the while picture. The final provocative incident will not be looked at
in isolation - R v. Thornton (1992).
The Test for Provocation
In R v. Duffy (1949), Devlin J defined provocation as some act, or series of acts, done by the dead man to the accused which would cause in an reasonable person, and
actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him for the moment not master of his
mind.
In The People (DPP) v. MacEoin (1978), Kenny J for the Court of Criminal Appeal said that n order to defeat the defence of provocation, the prosecution would have to
prove, beyond a reasonable doubt, either that:
(i) the accused was not provoked to such an extent that, having regard to his temperament, character and circumstances, he lost control of himself at the time of the wrongful
act.
(ii) the force used by the accused was unreasonable and excessive having regad to the provocation.
Loss of Self-Control
The loss of self-control must be sudden, temporary, total and operating at the time at which the person provoked commits a crime.
The requirement of the loss of self-control being sudden does not mean that such loss has to occur immediately after the provocation.
In determining whether or not the accused was so provoked as to have lost his self-control at the time of the killing, regard must be had to his temperament, character and
circumstances.
The People (DPP) v. Davis (2001) Hardiman J:
There is a minimal degree of self-control which each member of society is entitled to expect from his fellow members
The Force used by the Accused
In The people (DPP) v. Mac Eoin (1978), the Court of Criminal Appeal said if the prosecution can prove beyond reasonable doubt that the force used was unreasonable and
excessive having regard to the provocation, the defence of provocation fails
Since The people (DPP) v. Mac Eoin (1978), the Court of Criminal Appeal has been at pains to stress that this limb of the test is entirely subjective also.
Delayed Reaction
The significance of an interval between the provocative conduct and the reaction of the defendant to it was explained by the Court of Criminal Appeal in R v. Ahluwalia
(1992).
The Court of Appeal accepted, such an interval may wholly undermine the defence of provocation; that, however, depends entirely on the facts of individual cases and isnt a
principle of law.
Self-Induced Provocation
An accused person may not rely on provocation if he was responsible for it. As the Court of Criminal Appeal explained n The People (DPP) v. Kelly (2000) the reaction
must be genuine in the sense that the accused did not delibritly set up the situation which he now invokes as provocation.
Automatism General Observations

I involuntarily engaged in conduct, which, but for the involuntariness, would have been a crime.
A person engages in involuntary conduct if (i) he does not know the nature and quality of his conduct, ie, if he does not know what he is or is not doing, or (ii) he has no
control over his conduct
Conduct can be involuntary for a variety of reasons.
f it is involuntary due to a defect of reason caused by a mental disorder, the defence of insane automatism (insanity) applies.
If it is involuntary for any other reason, the appropriate defiance is non-insane automatism.
Insane Automatism
The criminal law on the defense of insanity is governed by s 5(1), Criminal Law (Insanity) Act, 2006. This Act simply placed the rule in common law on a legislative footing.
The McNaghten Rules
According to the McNaghten Rules, a person is insane if at the time of committing the (alleged) offence, (he is) laboring under such a defect of reason from disease of the
mind either (i) as not to know the nature and quality of his act, or (ii) if he did not know that his act was wrong. According to the McNaghten Rules, proving the defense of
insanity entails proving that:
(a) the accused was suffering from a disease of the mind at the time of the alleged offence
(b) such disease caused a defect of reason.
Disease of the mind
In R v. Kemp [1957], the accused suffered from arteriosclerosis. This condition causes arterial walls to thicken and harden. This thickening and hardening can result in blood
congestion in the brain. This congestion can cause a state of automatism. When he attacked his wife with a hammer, Kemp was in a state of automatism.
In Bratty v. AG for Northern Ireland [1963], the accuseds epilepsy was regard as a disease of the mind. Lord Denning observed, any mental disorder that manifests itself in
violence and is prone to recur is a disease of the mind.
In R v. Hennessy [1989], the accuseds hyperglycemia (high blood sugar level) was regarded as a disease of the mind. Having failed to take his insulin, Hennessy entered a
hyperglycemic state, and, whilst in that state drove someone elses car while disqualified.
From these authorities, the following definitions of disease of the mind may be distilled:
1) Any condition that impairs the mental facilities of reason, memory and understanding 2) Any mental disorder that manifests itself in violence and is prone to recur.3)Any
disease that causes the mind to malfunction.
In R v. Burgess [1990], the accuseds somnambulism (sleepwalking) was regarded as a disease of the mind. There was evidence to the effect that somnambulism is a
pathological condition, susceptible to medical treatment.
Defect of Reason
It is not sufficient merely to prove that the accused was suffering from a disease of the mind at the time of the alleged offence. It must be further proved that the disease
caused a defect of reason.
(i) The accused did not know the nature and quality of his conduct.
X lights a bin on fire. The fire spreads, causing substantial damage to property. However, the evidence proves that, due to a disease of the mind, X believed that he was
lighting a fire in his hearth. X is charged with Arson.
Here, X would be entitled to an aquittal.
Y, sets a bin on fire. The fire spreads, causing substantial damage to property. Y knew that he was setting a bin on fire. However, the evidence proves that, due to a disease of
the mind, Y failed to appreciate the risk of the fire spreading. Y is charged with arson.

The court of Appeal was confronted with this scenario in R v. Dickie [1984]. The fact that he did not appreciate the risk inherent in his conduct was irrelevant. R v. Dickie
stands as the authority for the proposition that a person can know the nature and quality of his conduct even if he does not appreciate its consequences.
(ii) The Accused did know the nature and quality of his conduct but did know that it was wrong.
In The People (AG) v. Hayes, Henchy J equated wrong with both immorality and illegality. Accordingly, if a person knows that his conduct is either immoral or illegal,
he knows that it is wrong, and the defence of insanity would not be available to him.
R v. Windle [1952] I suppose Ill be hanged for this The accused knew that his conduct was contrary to law.
Doyle v. Wicklow County Council [1974]
The third type of defect of reason arises where a person does know hat he is doing and that it is wrong, but is unable to refrain from acting.
The impulse must be irresistible, not merely unresisted.
The 2006 Act
Mental disorder is dfined in s 1 of the 2006 Act as including mental illness, mental disability, demintia or any disease of the mind, but does not include intoxication.
Previously, where the defence of insanity was successfully raised, the accused would have been found guilty but insane.
he new special verdict is not guilty by reason of insanity.
Diminished Responsibility
Diminished responsibility is a defence to a charge of murder only, and operates to reduce the homicide to (voluntary) manslaughter. This is so, even if the accused intended to
kill or cause serious injury to some person.
If there is evidence of diminished responsibility in a trial other than one for murder, it goes to mitigation of punishment only.
Non Insane Automatism
If the mind is caused to malfunction by an external factor, the appropriate defense to raise is non-insane automatism.
If non-insane automatism is successfully raised as a defense, the accused is entitled to an acquittal. He will not be transferred to the Central Mental Hospital in Dundrum.
Consider the following scenario:
As X is driving, his left hand is stung by a bee. As a result, he jerks the steering wheel to his right and knocks down and kills a pedestrian. X is charged with dangerous
driving causing death.
Accordingly, the appropriate defence for X to raise would be Non-Insane Automatism.
The first named accused in R v. Quick & Anor [1973] was a diabetic. Having taken his insulin, he failed to eat properly and consumed alcohol. This caused hypoglycemia
(low blood-sugar levels). Whilst in a hypoglycemic state, Quick attacked another person.
R v. Quick & Anor [1973] is to be contrasted with R v. Hennessy [1989]
In R v. Hennessy Lord Lane LCJ accepted that stress, anxiety and depression can be the result of the operation of external factors. However, they are not external
factors of the kind capable in law of causing or contributing to a state of [non-insane] automatism.
Crimes of Specific Intent
A crime is one of specific intent if the prosecution must prove an intention on the part of the accused. Murder is a crime of specific intent, as it requires proof of an intention
to kill or cause serious injury to some person. Similarly, theft is a crime of specific intent, as it requires proof of an intention to deprive an owner of his property.
The Dutch Courage scenario
Consider the following scenario:

X forms and intention to kill his wife. He lacks the courage to go through with the killing. He consumes a bottle of whiskey in order to give himself Dutch Courage to go
through with it. Whilst intoxicated, X kills his wife. His intoxication was such that, at the time of the killing, X did not intend to kill or seriously injure anyone.
The House of Lords was confronted with this scenario in AG for Northern Ireland v. Gallagher [1961]. Upholding his conviction for murder, Lord Denning said:
The wickedness of his mind before he got drunk was enough to condemn him, coupled with the act which he intended to do and did do.
Crimes of Basic Intent
A crime is one of basic intent if the Prosecution does not have to prove an intention on the part of the accused.
This offence does not require proof of an intention on the part of the accused. So, a person could be guilty of a crime of basic intent if he merely recklessly damaged
property and thereby recklessly endangered life.
The authorities demonstrate that self-induced intoxication is not a defence to a crime of basic intent.
In R v. Caldwell [1982], Lord Diplock, citing DPP v. Majewski [1976] as authority for the proposition, remarked self-induced intoxication is no defence to a crime in which
recklessness is enough to constitute the necessary mens rea.
Innocent Intoxication
There is no superior court judgment on the status of innocent intoxication as a defense to a criminal charge. However, in its report on intoxication the LRC recommended
innocent intoxication should always afford a defense on the lines indicated in the judgment in R v. Kingston.
Effect of successfully raising intoxication as a defense
If self-induced intoxication is successfully raised as a defense to a charge of murder, it merely operates to reduce the homicide to manslaughter.
If self-inducted intoxication is successfully raised as a defense to a crime of specific intent (other than murder), it entitles the accused to an acquittal unless the accused got
himself intoxicated for the purpose of giving himself Dutch Courage to commit the crime.
If innocent intoxication is successfully raised as a defense to a crime of specific or basic intent, it entitles the accused to an acquittal.

Chapter 8 - Offences against the public order

Criminal justice (public order) act, 1994

Intoxication in a public place:
Any drug including alcohol s4(4)
offence to be intoxicated in public to such an extent that it would give rise to reasonable apprehension that he might endanger himself
or someone in vicinity s4(1)
Offensive conduct in a public place
having regard to all the circumstances, conduct that is likely to cause serious offence or serious
annoyance to any person who is , or is reasonably expected to be, aware of such behaviour

s5(1) makes it an offence for a person to engage in offensive conduct between 12 midnight and 7 am or at any other time having being
asked to stop by a guard

Threatening, abusive or insulting behaviour in a public place

s6(1) says it is an offence to do the above with an intent to breach the peace or being reckless about breaching the peace

the definition of threatening , abusive , insulting behaviour not defined but must amount to more than 'offensive conduct'

Intention to breach peace must be proved

That the peace was breached does not have to be proved

Obscene displays in a public place

s7(1) offence to distribute or display things in public place that are threatening, abusive, insulting or obscene with intention to breach
peace or being reckless as regards the breach of peace


- used against anti abortion campaigners using photos of aborted foetuses

R v Hicklin = test for obscenity = whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds
are open to such immoral influences and into whose hands a publication may fall

Must be proved they intended to breach peace (or was reckless) but does not have to be proved that an actual breach of the peace
occurred

Affray

s16(1)
- must be at least 2 people using or threatening to use violence against each other(Reid v DPP,Kirwan v DPP)
-a threat cannot be made by words alone
-at least one of these people must be using or threatening to use unlawful violence
-the conduct of those persons taken together must be such as would cause a reasonable person present to fear for his or someone else's
safety
- the person cannot be convicted of affray unless the person intends to use or threaten to use violence or is aware that his conduct may
be violent or threaten violence



Violent disorder

s 15(1)
-must be 3 or more people threatening to use unlawful violence
- it is immaterial whether or not the people use or threaten to use unlawful violence at the same time
-the conduct must be such that a reasonable person would fear for his or anothers safety
-each person who threatens or uses violence can be guilty

-a person cant be convicted unless they intended to use or threaten violence or is aware his conduct may be violent or threaten violence

Riot

14(1)
-at least 12 people using or threatening unlawful violence for a common purpose
-immaterial whether or not the 12 or more people use or threaten violence simultaneously at any place
-the conduct of the people taken together must be such as would cause a reasonable person at that place to fear for his or someone else's
person ( this reasonable person does not have to be present or be likely to be present)
-each person involved can be guilty











Criminal Law Chapter 9 Inchoate Offences

Incitement A person (the incitor) may be guilty of incitement if he tries to coerce, encourage, or persuade another person to commit
a crime.
Race Relations Board v. Applin 1973-

The actus reus of incitement is the conduct that constitutes the attempt to coerce, encourage, or persuade another person to commit a
crime. R v. Smith and Anor.

It does not have to be proved that the person who was incited (the incitee) committed the crime incited. If he did commit it, he would
be guilty of that offence as perpetrator. The incitor would also be guilty of it, but as an accomplice.

It does not even have to be proved that the incitee agreed to commit the crime incited. If he did agree, both he and the incitor would be
guilty of conspiracy.

Consider the following scenario:

One Monday, X says to Y, Y, I will give you 10,000 if you rape Z. On Tuesday, Y telephones X saying, X, Ive thought about your
proposal. Ok, Ill do it. On Wednesday, Y rapes Z.

Here, X committed incitement (to commit rape) on Monday. On Tuesday, both X and Y became guilty of conspiracy. On Wednesday, both
X and Y became guilty of rape. Y is guilty of rape as a perpetrator. X is guilty of rape as an accomplice.

Expression of Desire

In The People (AG) v Capaldi (1949), the accused had been convicted of incitement to commit an offence contrary to s 58, Offences
Against the Person Act 1861.
- Pregnant girlfriend case

Appealling his conviction the accused argued that he had merely expressed a desire that his girlfriend have an abortion and that a mere
expression of desire does not constitute incitement. The Court of Criminal Appeal accepted, obiter, that a mere expression of desire does
not constitute incitement.

A person would not be guilty of incitement if it was already occurring to the incitee to commit the crime incited.

Communication

Whilst it does not have to be proved that the incitor succeeded in coercing, encouraging or persuading the incitee to commit the crime
incited or even that he succeeded in obtaining the incitees assignment to commit the crime incited or even that he succeeded in
obtaining the incitees agreement to commit the crime incited, it does have to be proved that the incitor succeeded in communicated
with the incitee.

Consider the following scenario:

X sends a letter to Y, in which he writes, Y, I will give you 10,000 if you rape Z. The Gardai intercept the letter before it reaches
Y.

Here, X is not guilty of incitment to commit rape. That is not to say that X would not be guilty of any offence. He would be guilty of
attempted incitement to commit rape.

Soliciting to Commit Murder

Section 4 of the Offences Against the Person Act 1861 makes it an offence to solicit, encourage, persuade or endeavour to persuade or
propose to any person to murder any other person.
Incitement to Hatred

Incitement to hatred is governed by the Prohibition of Incitment to Hatred Act 1989.

According to s1(1) of the 1989 Act, hatred means hatred against a group of persons in the state or elsewhere on account of their race,
colour, nationality, religion, ethnic or national origins, membership of the travelling community or sexual orientation.

Accordingly, it is not an offence to incite hatred against one person.

Conspiracy


According to Barry J in R v. Parnell (1881), a conspiracy is an agreement between at least two people to commit a wrongful act with a
view to injure another even though the act, if done by one, would amount to no more than a civil wrong.

The wrongful act will usually be a crime, but, as Barry Js remarks make clear, it does not have to be.

Consider the following scenario:


X publishes a leaflet that contains a false allegation that Z is a paedophile.

Here, X has committed the civil wrong of defamation.

Now, consider the following scenario:

X and Y publish a leaflet that contains a false allegation that Z is a paedophile.

Here, not only have X and Y committed the civil wrong of defamation, they have also committed a crime, viz, conspiracy to defame Z.

Spouses

At common law, a husband and wife cannot conspire with each other
- R v. Robinson (1746)
They are regarded as a single entity, and one cannot conspire with oneself.

Where one of the Conspirators Cannot be Guilty of the Crime

Consider the following scenario:

X is a woman who is not pregnant. Believing that she is pregnant she agrees with Y to procure an abortion.


Is X guilty of conspiracy to procure an abortion?

In R v. Whitechurch (1890), the court answered this question in the affirmative. This case suggests that a person can be guilty of
conspiring to commit an offence even though he is not capable in law of committing that offence.

Impossibility

Consider the following scenario:

X and Y agree to kill Z. Unbeknownst to X and Y, Z is already dead.

Here, it would in fact be impossible for X and Y to kill Z. The question arises: would such factual impossibility provide X and Y with a
charge of conspiracy to commit murder?

In DPP v. Nock & Anor (1978), the accused admitted that they had intended to extract cocaine from a particular batch of white powder.
Unbeknownst to them, it was, in fact, impossible to extract cocaine from the powder. The House of Lords held that such impossibility
provided the accused with a defence to a charge of conspiracy. Emphasis was placed on the specificity of the accuseds agreement. Had
they, for example, agreed to enter into a general cocaine-producing business together, a conviction for conspiracy could have been
sustained.

Conspiracy to Corrupt Public Morals

- AG (SPUC) v. Open Door Counselling (1988).

- Knuller v. DPP (1973) Lord Simon said the words corrupt public morals suggest conduct which a jury might find to be
destructive of the very fabric of society

Attempt

Actus Reus The actus reus of an attempt is proximate conduct. This means that it must be proved that the accused had gone beyond
merely preparing for the substantive offence and that he had taken steps towards its commission.

It is not an offence for X merely to intend to commit a crime. As Haugh J explained, for the Court of Criminal Appeal, in The People (AG) v.
Thornton (1952), a mere desire to commit a crime, or desire followed by an intention to do so, is not sufficient to prove an attempt.

Abandonment

Consider the following scenario:

X intends to kill Y. Late one night, he breaks into Ys house, creeps upstairs, and goes into Ys bedroom. Y is lying peacefully in his
bed. X stands beside Ys bed with an axe raised above his head. Suddenly, X has a change of heart and decides not to kill Y.

Here, X is guilty of attempted murder. His conduct was sufficiently proximate. At the time of such conduct he intended to kill Y.
Accordingly, all the ingredients of attempted murder are present.

Impossibility

Consider the following scenario:

X intends to kill Y. He breaks into Ys house, creeps upstairs, and goes into Ys bedroom. Y is lying peacefully in his bed. X
proceeds to decapitate Y. However, the post-mortem establishes that Y was already dead.

Here, it was in fact, impossible for X to kill Y. Would such impossibility provide him with a defence to a charge of attempted murder? In
The People (AG) v. Sullivan (1964), Walsh J said, the ultimate impossibility of achieving or carrying out the crime attempted is not a
defence to a charge of attempt.

Punishment S3 Criminal Justice Act 1990 is 20 years imprisonment