Law For The Accused

National Crime Agency - defence

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Criminal Case Defences

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The obvious defence is that you did not commit the act which is said to be a crime. A person can only be guilty of a criminal offence on the evidence. The prosecution have to produce evidence that is admissible to bring a case against you. They have to prove you intended to commit the act.

Every offence has its own defences.

The golden rules for the defence are:-

- A person can only be guilty of a charge on admissible evidence.

- All crimes require the prosecution to prove their case beyond a reasonable doubt.

- Everyone is entitled to a fair trial.

- The defendant does not have to give evidence, he can remain silent.

- A crime is only committed if it is proved that the defendant did the act and intended to do it

- Mistake of fact is a defence if no crime was intended.

- The prosecution have to , the defence have to prove nothing.

- The defence is in the wording of the charge or indictment

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Specific words in law as to state of mind for crimes

Archbold 2011 says

"With Intent To"

(a) When a judge is directing a jury upon the mental element necessary in a crime of specific intent (such as murder), he should avoid any elaboration or paraphrase of what is meant by intent, and leave it to the jury's good sense to decide whether the accused acted with the necessary intent.

(b) Foresight of the consequences which it must be proved that the accused intended (in murder, death or really serious bodily injury), is no more than evidence of the existence of the intent; it must be considered, and its weight assessed, together with all the evidence in the case. Foresight of consequences may be a fact from which the jury may think it right to infer the necessary intent.

(c) The probability of the result is an important matter for the jury to consider and can be critical in their determining whether the result was intended. It will only be necessary to direct the jury by reference to foresight of consequences if the judge is convinced that, on the facts and having regard to the way the case has been presented to the jury in evidence and argument, some further explanation is necessary to avoid misunderstanding.

(d) Where, exceptionally, it is insufficient to give the jury the simple direction that it is for them to decide whether the defendant intended to kill or do serious bodily harm, they should be told that they are not entitled to find the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant's actions and that the defendant appreciated that such was the case; they should always be told that the decision is theirs to be made on a consideration of the whole of the evidence.

(e) In appropriate cases, it will be necessary to explain to the jury that intent is something quite different from motive or desire.

If, in a case falling within paragraph (d), there is evidence that the defendant was under the influence of alcohol at the relevant time, the judge should deal with the question of the effect of the defendant's consumption of alcohol by telling the jury that this is relevant to the question whether the defendant appreciated that his actions were virtually certain to have the specified result: R. v. Hayes (Dennis Francis)[2003]

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Proof of criminal intent

´a jury decides on intent´

Criminal Justice Act 1967, s.8

A court or jury, in determining whether a person has committed an offence,

(a) shall not be bound in law to infer that he intended or foresaw a result of his actions by reason only of its being a natural and probable result of those actions; but

(b) shall decide whether he did intend or foresee that result by reference to all the evidence drawing such inferences from the evidence as appears proper in the circumstances.

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"Unlawfully"

This means without lawful justification or excuse, e.g. self-defence. Generations of judges have so directed juries upon a charge of murder and upon charges of statutory offences where the word occurs. It is submitted that the observation of Hodgson J. in Albert v. Lavin,72 that, "In defining a criminal offence the word 'unlawful' is tautologous and adds nothing to its essential ingredients", though following dicta in other cases, is misleading. It is, for example, an essential ingredient of the crime of murder that the killing, albeit accompanied by the necessary intent, was not, e.g. done

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"Maliciously"

This word frequently occurs as part of the definition of a statutory offence. It means an actual intention to do the particular kind of harm that was in fact done, or recklessness as to whether such harm should occur (i.e. the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it): it is neither limited to nor does it require any ill will towards the person injured: R. v. Cunningham[1957] The harm foreseen need not be of the same degree as that prohibited: R. v. Mowatt[1968]. Thus, on a charge of wounding, or inflicting grievous bodily harm, contrary to section 20 of the Offences against the Person Act 1861 ,it is enough that the accused foresaw that some physical harm to some person, albeit of a minor character, might result from his action: ibid.; R. v. Savage (Susan);DPP v. Parmenter[1992]

Where the word "maliciously" is combined with words requiring a specific intent, e.g. maliciously wounding with intent to cause grievous bodily harm, it will often be unnecessary to direct the jury as to the meaning of the word "maliciously", because it will be included in the words defining the specific intent. See post, 19-211, as to circumstances in which a separate direction on "maliciously" may be required.

Even where no specific intent is required, as in section 20 of the Offences against the Person Act 1861, it will often be unnecessary and perhaps confusing to direct the jury as to the meaning of the word "maliciously", e.g. where it is indisputable that the act, if done by the defendant, was done maliciously: see Mowatt ([1968] 1 Q.B. 421),

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"Knowingly"

Where this word is included in the definition of an offence it makes it plain that the doctrine of mens rea, criminal intention, applies to that offence. However, its absence is no indication that the doctrine does not apply: see, per Lord Reid in Sweet v. Parsley[1970] It follows, therefore, that the Crown has to prove knowledge on the part of the offender of all the material circumstances of the offence. For example, on a charge of "knowingly having in his possession an explosive substance", the Crown must prove that the accused knew both that he had it in his possession and that it was an explosive substance: R. v. Hallam [1957. The courts, however, have refused to apply this rule in relation to matters of exception from the definition of an offence

There is some authority for the view that in the criminal law "knowledge" includes "wilfully shutting one's eyes to the truth":

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"With Intent to Defraud" and "Fraudulently"

"To defraud" or to act "fraudulently" is dishonestly to prejudice or to take the risk of prejudicing another's right, knowing that you have no right to do so: Welham v. DPP[1961].

In general, fraudulent conspirators neither desire nor foresee loss or injury to another; the fraud consists in taking the risk of injuring another's right which the accused know they have no right to take.

It is not confined to a risk of possible injury resulting in economic loss, though most cases do involve this: Welham v. DPP ([1961] In Scott (Anthony Peter) v. Commissioner of Police of the Metropolis ([1975] where the intended victim of a conspiracy to defraud is a private individual, the risk must be of economic loss An allegation of conspiracy to defraud based on economic loss, means that it is necessary for the prosecution to prove that the victim had a right or interest which was capable of being prejudiced either by actual loss or by being put at risk: Adams v. R. ([1995]

Dishonestly to induce a person performing a public duty to act in a way which would be contrary to his duty if he had known the true position is to risk injury to the right of the state, or the public authority as the case may be, to have that duty properly performed and amounts to an intent to defraud.

"Deceit" is not an essential ingredient of fraud per se: Scott v. Metropolitan Police Comm. ([1975]

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"Causes"

The general rule applicable to a statutory offence of causing another person to do a prohibited act is that the offence is only committed if the accused contemplated or desired that the act would ensue and it was done on his express or implied authority or as a result of him exercising control or influence over the other person: Attorney General of Hong Kong v. Tse Hung-lit[1986]

Where a statute prohibits the causing of a particular result, the word "causes" imports neither knowledge nor negligence; it is to be given a common sense meaning: Alphacell Ltd v. Woodward[1972] .Whether the defendant caused the prohibited result is a question of fact, the determination of which is dependent on the application of common sense. Refinements such as causa causans, effective cause or novus actus are to be avoided: ibid. It is clear that the act of the defendant need not be the only operative cause, but "mere tacit standing by and looking on" are insufficient to amount to causing: ibid.; Price v. Cromack[1975]

Where the defendant produced a situation in which there was the potential for the prohibited result to occur (the escape of noxious liquid from a tank maintained by him into controlled waters), but its actual occurrence depended on the act of a third party or a natural event, the question for the court was whether or not the act or event was in the general run of things a matter of ordinary occurrence, even if it was not foreseeable that it would happen to that particular defendant or take that particular form; the defendant's liability would only be negatived if the act or event could be regarded as something extraordinary; the distinction was one of fact and degree, to which common sense and local knowledge had to be applied; vandalism and terrorism provided examples of acts on either side of the line: Environment Agency (formerly National Rivers Authority) v. Empress Car Co (Abertillery) Ltd[1999] As to a burst tyre being an event in the ordinary run of things, see Express Ltd (t/a Express Dairies Distribution) v. Environment Agency[2003].

There are many more specific words in laws about intent and most of those words have their ordinary meaning.

But see glossary of terms.

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Ignorance of the law

is no defence?

The fact that a defendant did not know what was criminal and what was not, or that he did not understand the relevant principles of the civil law, could not save him from conviction if what he did, coupled with his state of mind, satisfied the elements of the offence of which he was accused.

But, where the defence is that no dishonesty had been involved, it may be necessary to explain to the jury the clear distinction between a defendant's lack of knowledge of the law, and his appreciation that he was doing something which, by the ordinary standards of reasonable and honest people, was regarded as dishonest: R. v. Lightfoot,97.

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