Q and A: Smart held a party during which he laced Tippsy's lemonade with a few drops of Boltons™ magnesium gel. Tippsy who is about 17 years old began to feel strange and so decided to leave the party. He drove part of the way home but then, as he started to have hallucinations, amnesia and geriatric hand cramping , he parked his car, got out, and started to...walk the remainder of the journey. As Tippsy approached his house he saw shifty. Tippsy was convinced that Shifty was about to mug him and so he hit him on the head with his umbrella. In fact, Shifty was waiting for his grlfriend and had no intention of 'mugging' Tippsy. Shifty had an extremely thin skull and died from the blow. Tippsy collapsed from the etfects of the drug and suffered damage to his kidneys tor which he required hospital some treatment. Advise Smart and Tippsy about their criminal liability. Click here.

 

Question 19

Smart held a party during which he laced Tippsy's lemonade

with a few drops of Boltons™ magnesium gel.      Tippsy was about 17 years old began to feel strange and so decided to leave the party. He drove part of the way home but then, as he started to have hallucinations, amnesia and geriatric hand cramping , he parked his car, got out, and started to...walk the remainder of the journey. As Tippsy approached his

house he saw shifty. Tippsy was convinced that Shifty was about 

to mug him and so he hit him on the head with his umbrella.  In fact,

Shifty was waiting for his grlfriend and had no intention of

'mugging' Tippsy.  

Shifty had an extremely thin skull and died from the blow.

Tippsy collapsed from the etfects of the drug and suffered

damage to his kidneys tor which he required hospital

some treatment.

Advise Smart and Tippsy about their criminal liability.

Answer plan

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This question raises issues concerning a number of offences

against the person, including poisoning offences, and an offence

contrary to the Road Traffic Act 1988. The legal treatment of a

(drunken) mistake relevant to an issue of defence is raised with

respect to Tippsy s liability. In general, when answering a question

which requires analysis ot the criminal liability of more than one

individual for-a number of different offences it is often sensible to

deal with all the issues of liability of relevance to one party before

turning to the next. In this case, however, the answer deals with an

analysis of Tippsy's liability for Shifty's death followed by an

examination of Smart's criminal liability for a number of non fatal

offences against the person and finally with an examination of the

issues of liability of both parties in respect of a possible driving

offence under the Road Traffic Act 1988. The RTA issues were

dealt with together at the end of the answer as the question of

Smart's liability and Tippsy's liability are interrelated.

The principal issues are the 'egg shell skull principle

self-defence and mistake: the rule in Williams (1983) and

Beckford (1988) administration of a 'noxious thing contrary to ss 23 and 24 of

the OAPA 1861 the mens rea requirement of s 23

s4(1) of the Road Traffic Act 1988: driving while unfit

Liability of one who 'procures' the commission of an offence

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Answer

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Tippsy- homicide

Tippsy committed the actus reus of unlawful homicide. That

killed Shifty. The fact that Shifty had a thin skull rendering nim

more vulnerable to fatal injury does not atfect the attributionof

the death to Tippsy. There is a principle in English law to t

effect that 'one must take one's victim as one finds him', Thie

means that a detendant whose actions are a cause of death may

not point to a peculiar vulnerability of the victim as the legal

cause (Martin (1832).  To determine whether Tippsy is guilty of either murder or

manslaughter his mens rea at the time of striking the blow must

be examined.

For murder the prosecution must prove that Tippsy either

intended unlawfully to kill or to cause grievous bodily harm

(Moloney (1985).

If it was his aim or objective to cause death or gbh then clearly

he intended death or gbh. If not, but it is proved that he was

aware that either death or gbh was virtually certain to result from

the blow to the head, then the jury may infer that he intended

death or gbh (Hancock & Shankland (1986); Nedrick (1986).

For constructive manslaughter the prosecution must prove

that Tippsy intentionally committed an unlawful act which was

dangerous and caused the death (Goodfellow (1986).

In this case the battery committed against Shifty would

amount to an unlawful act (see eg Larkin (1943)).

In addition, it would appear that the act of striking Shifty was

dangerous'. The requirement is satisfied on proof that all sober

and reasonable people would recognise that striking Shifty with

the umbrella was likely to subject him to the risk of some harm

(Church (1966); Goodfellow (1986). It is not necessary to show that

there was a risk of serious harm, nor is it necessary to prove that the

defendant was aware of any risk of harm (Lipman (1970)) (1).

There is some doubt as to the meaning of the requirement that

the unlawful act was performed 'intentionally'. In Newbury (1977)

the House of Lords held that the necessary mens rea for

constructive manslaughter was an 'intention to do the acts which

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Constitute the crime. 1his is ambiguous. It may mean that all they

required is proof that the detendant's actions were voluntary

In the case of Jennings (1990), however, the Court of Appeal

weeded on the basis that mens rea in the full sense is required,

In which case the prosecution would have to prove that Tippsy

intended or was reckless with respect to the application of

unlawful force (Spratt (1990).

It is not clear from the facts of the problem the degree of harm

intended by Tippsy, but, in any case, whether he is charged with

murder or manslaughter, it must be proved that he intended

unlawfully to kill or cause gbh or apply force.

It was decided in Williams (1984) and in Beckford (1988) that a

genuine belief in facts which, if true, would justify self-defence is

an excuse to a crime of personal violence because the belief

negatives the intent to act unlawfully. If the use of force would

have been lawful had Shifty, in fact, been about to attack Tippsy

then Tippsy has a 'defence to murder or manslaughter.

Although in O'Grady (1987) it was held that if the mistake was

made as a result of voluntary intoxication it cannot be relied upon,

the House of Lords in Kingston (1994) held that where the

intoxication is involuntary the defendant may rely on the absence

of the necessary mental element. (2)

The exclusionary rules regarding voluntary intoxication and

offences of basic intent are based on the principle of prior fault

The person who has made a mistake as a result of self-induced

intoxication is regarded as being to blame for his condition. The

individual who, as a result of involuntary intoxication makes a

legally relevant mistake, is not responsible for his condition. It is

fair, therefore, that he be allowed to rely on the mistake as a

defence (see Majewski (1977); Hardie (1984); Kingston (1994).

Thus, whether charged with murder or manslaughter, Tippsy

should be acquitted unless the prosecution prove that Tippsy did

not use such force as was reasonable in the circumstances as he

believed them to be (Abraham (1973); Shannon (1980); Stripp (1978);

Scarlett (1994).

It should be noted that force may be used to ward off an attack

which the defendant anticipated (Attorney-General's Reference No 2

of 1983 (1984).

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When it comes to assessing whether the force used Tippsy

was reasonable, the jury shoul be reminded that defending himself cannot be expected to 'weigh to a nicety' the exact measure of defensive action necessary. If Tippsy did

he honestly thought was necessary, then that is 'potent evidence a person

what that the force used was reasonable (Palmer vR (1971).

Smart- Aggravated assault ts: ss 18 and 20 of the Offences

against the Person Act 1861

Under s 20 of the Act it is an offence to 'unlawfully and

maliciously.. inflict grievous bodily harm upon any other person',

Under s 18 it is an offence 'unlawfully and maliciously to... cause

grievous bodily harm to any person by any means whatsoever

with intent to do grievous bodily harm'.

Grievous bodily harm' means 'serious bodily harm'. It is a

matter for the jury to decide whether the harm caused or inflicted

is grievous (DPP v Smith (1961); Saunders (1985)) (3).

However, even if the effects of the drug on Tippsy are

regarded by the jury as amounting to grievous bodily harm, there

can be no liability under s 20. This is because gbh is not 'inflicted'

for the purposes of s 20 unless force is applied violently to the

body of the victim. And there is no application of force where, as

in this case, a drug is administered (Hanson (1849).

For s 18 there is no such requirement. The section uses the

expression 'cause by any means whatsoever and thus covers a

broader range of circumstances than s20.

The mens rea requirement for s 18 is relatively high. The

prosecution must prove that Smart intended to cause gbh. Intention

in this context bears the same meaning as it does for murder and

the reader is referred to the discussion above (Purcell (1986).

Maliciously administering a noxious thing

By virtue of s 23 it is an offence to maliciously administer a poison

or other noxious thing to any person so as to endanger the life of

such person or to inflict upon him any gbh. The maximum

punishment is a term of imprisonment not exceeding five years.

By virtue of s 24 it is an offence to maliciously administer a

poison or other noxious thing with intent to injure, aggrieve or

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....annoy such person. The maximum punishment is a term of

imprisonment not exceeding five years.

In Harley (1830) it was held that an offence may be committed

here, as in this case, the nOxious thing is put in to a drink taken

by the victim.

The concept of a 'noxious thing' is wide enough to include

anything which 1s even only slightly harmful or which disturbs

either physiological or psychological function, bearing in mind

not only the quality and nature of the substance but also the 

quantity administered. In Marcus (1981) the Court of Appeal held

hat ordinary sleeping tablets administered in a normal dose

without the knowledge or the victim were noxious.

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For liability under s 23 the prosecution must prove, as an

element of the actus reus, that either life was endangered or gbh

and nature of the substance, but also the

was inflicted (4).

As far as the mens rea 1s concerned the authorities are not

absolutely clear.

In Cunningham (1957) it was held that the prosecution must

prove that the defendant either intended or foresaw that the

Particular kind of harm' might result and went on to take the risk

of it.

In Cato (1976) the Court of Appeal interpreted this to mean

that, although the prosecution had to prove that the defendant

intentionally or recklessly administered the thing knowing at

least that there was a risk that it would cause harm (ie that it was

'noxious'), it was not necessary to prove that the defendant

foresaw the risk that it would endanger life or cause gbh. The

crime is one of 'half mens rea'".

It would seem, however, that the Court of Appeal intended

that this restricted form of the mens rea applies only if the noxious

thing is applied directly (in Cato heroin was injected). And, thus, if

as in this case, the noxious thing is indirectly administered the

prosecution apparently must prove recklessness not only with

respect to the administration of the noxious thing but also with

respect to the risk of endangering life or causing gbh (5).

For s 24 the mens rea requirement is (i) intention or

recklessness (Cunningham-type defined as above) with respect to

the administration of a noxious thing and (ii) an intention to

injure, aggrieve or annoy.

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If Smart is charged with the offence under s 23 h

prosecution fail to prove he had the necessary mens rea he m

convicted of the offence under s 24 assuming, as the facts as  the facts 

imply that he had the mens rea for that offence (s 25 of the Offences

Against the Person Act 1861).

Road Traffic Act 1988

By virtue of s 4(1) of the RTA 1988 a person who drives a vehicle

while unfit through drink or drugs commits an offence. The

maximum punishment is six months imprisonment or a £5,000

fine or both. And, unless there are special reasons the offender

must be disqualified from driving for at least 12 months.

By s 4(5) of the Act a person is taken to be unfit to drive if his

ability to drive properly was impaired. Whether a driver's ability

was impaired is a question of fact.

Medical evidence may be submitted to demonstrate that

Tippsy was unfit before he parked the car and decided to walk.

Although the fact that his drink was laced does not absolve

him of liability, it may amount to a special reason allowing the

court, within its discretion, to refrain from imposing an order of

disqualification (Pugsley v Hunter (1973).

Smart, by virtue of the Accessories and Abettors Act 1861 s 8,

may be convicted of 'procuring' the commission of the offence

under s 4(1) of the RTA 1988.

In the Attorney-General's Reference No 1 of 1975 the Court of

Appeal held in a case involving similar facts to the present

problem that 'to procure means to produce by endeavour', This

implies that it is necessary to prove that the defendant intended to

bring about the principal offence.

It seems, however, that recklessness will suffice as far as the

circumstances of the offence are concerned (Carter v Richardson

(1976)). In other words, it must be proved that Smart knew that

Tippsy was going to drive and was aware that he was probably

unfit as a result of the administered drug (6).

1 The rule in Watson (1989) and Dawson (1985) to the effect that a

peculiar vulnerability of the victim is not relevant to the issue

Notes

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of dangerousness unless it would have been apparent to a

reasonable observer of the incident does not apply in this case.

The rule applies only where the act of the accused would not

otherwise be dangerous as defined.

Lord Mustill refered, with approval, to a number of Scottish

2

decisions which state that involuntary intoxication is a defence

if it results in an inability to form the necessary mens rea.

Elsewhere, however, he stated that 'the excuse of involuntary

intoxication. is superimposed on the ordinary law of intent

and that 'in the absence of intention the involuntary nature of

the intoxication would take a case such as the present outside

Majewski and enable the defendant to rely on the absence of

the necessary mental element. This latter approach is surely

the correct one. If D did not have the mens rea he should be

acquitted even though he was capable of forming it.

The Code for Crown Prosecutors, Offences Against the Person

3

(1994) states at para 2.15 that the prosecutor should regard

injuries resulting in lengthy treatment or incapacity should be

treated as amounting to grievous bodily harm.

4 Although the word 'inflict' is used in the section there clearly

can be no requirement of a direct application of force, cf s 20

see Wilson (above).

5 See Law Commission No 89 p 15.

6 In Blakely v DPP (1991) Lord Bingham understood 'procuring'

to involve intention or 'the willing acceptance of a

contemplated result'. This implies that advertent recklessness

With respect to the central conduct of the actus reus will

suttice. Such an interpretation is far removed from the

Ordinary meaning of 'to procure' and, it is submitted, ought

not to be followed.

From The Cavendish Q and A Series 2nd Edition.