Tutorials Resource Page
(last updated 2012) Dr.
Maris Köpcke Tinturé, Worcester College, University of Oxford
Disclaimer: these notes,
outlines and answers to common questions are
provided as rough guidelines only. They may be helpful to fill gaps,
clarify misunderstandings and understand the 'big picture' of certain
topics. The information on this page is not exhaustive: it does not get
anywhere near covering all you need to know in this subject. There is
also no guarantee that the information is wholly accurate: it
is an informal resource page, and mistakes may have creeped in (let me know if you spot
Remember there are also the lecture handouts available through Weblearn.
subjective: D was provoked to lose his
self-control (and the suddenness requirement)
loss of self-control: consider rasonable man, of D's
sex and age (Camplin, Holley)
gravity/sting of the provocation: consider any
characteristic of D, even disreputable ones (eg Morhall, who was a
glue-sniffer and was mocked about being a glue-sniffer)
What can be plead by someone suffering from battered
BWS is a medically recognized
condition, but doesn't amount to insanity. It's probably a borderline
case of a medically recognized condition. (And attitudes take a while
to radically change.)
Under the old law of diminished resp., it wasn't necessary to prove a
medically recognised condition, but it is necessary to do so under the
new law. In theory, this doesn't affect BWS, since it is a medically
recognized condition. However, in practice, given the new law on loss
of SC (which in many ways is more accessible to women suffering from
BWS than the old law on provocation), the most obvious option for women
with BWS will be loss of SC.
What are the
elements of constructive manslaughter?
Constructive manslaughter (AGR
Unlawful act (=criminal offence, with its own AR+MR;
but not a negligence or strict liability offence - Andrews)
Dangerous: = likely to cause some harm to somebody
test, but note the cases that qualify the
objectivity of the test (Watson,
person at the
scene, so not 100% objective; but Ball: D can't rely on
mistake) -> in short: likely to cause some harm to s.b. according to
what D could and should have known
Caused V's death
There is no other requirement. In particular, there is no extra MR
requirement. There is a MR, of course, which is the one of the criminal
offence under (1). But no extra MR (that's why it is sometimes said
that, in constructive ms, the consequence of death is a strict
Note, however, what is said in Newbury: that D had to
'intend to do
what he did'. Does this suggest that only intention, not recklessness,
will do for the MR of the offence in (1)?
Please don't break down this offence
into AR and MR; just follow these 3 elements.
What are the
elements of gross negligence manslaughter?
Elements of gross negligence
Duty of care (rules as in negligence tort) (Willoughby: for the jury to
decide always; Evans:
for the jury to decide only if it's in dispute)
Breach of the duty of care: standard expected of a reasonable
person, with the skill of D (as in Adomako): so, objective
Causation: did the breach of the DOC cause the death? Note: it
must be the negligence that caused the death; if the death would have
occurred anyway (=even if D had acted reasonably), no liability.
Gross: was the breach so bad as to deserve criminal liability
Note, incidentally, that this means that gross negligence ms doesn't
require subjective MR - it may well be that D wasn't aware of the risk
(because 2) is objective). However, if D was subjectively aware of the
risk, it's likely to weigh with the jury when they're deciding whether
the breach was so gross as to deserve criminal liability (under 4)).
Note also: Both Adomako
and Misra stress that
there must be a risk of death,
nothing less. To me, this isn't included in the 4 elements. I'd
regard it as an additional element.
Please don't break down this offence
into AR and MR; just follow these 4 elements.
What if V consents to battery, but ABH results?
Does the consent negate D’s liability?
Consider this scenario: D and V agree
that D will touch V; however, D’s touching accidentally causes ABH to
V. Can V’s consent to battery negate D’s liability for the unexpected
The law is unclear. On the one hand, V’s consent negates liability for
battery. On the other hand, consent doesn’t negate liability for ABH
(unless the case falls into an exceptional category).
3 possible answers can be envisaged at the moment (see further Herring
p. 378 of the 2010 ed.):
D is always liable. V's
consent to battery is irrelevant, because what was caused is ABH, and
consent is not a defence to ABH, regardless of D’s MR.
Legal basis: this reading seems supported by AGR 6/1980, when it says,
considering a case of consented ABH: '... it is an assault [read: s47]
if ABH is intended and/or caused'. 'And/or' suggests that it will be a
s47 assault even if D didn't intend or wasn't reckless as to the
causation of ABH. (Note that the 'and/or' wasn't relevant to the actual
decision in AGR 6/1980
because the parties appeared to intend to cause each other ABH during
D is only liable if he foresaw the ABH. In other
words: consent to battery ‘helps’ the defendant who didn’t foresee ABH.
Legal basis: This reading is supported by Slingsby (involving an
agreed battery - sex with penetration with D's hand - from which ABH or
worse resulted; D had not foreseen that his ring would cause injuries,
and that's why V's consent to battery helped him).
D is only liable if ABH was
(objective test). In other words: consent to battery ‘helps’ D when the
ABH was not reasonably foreseeably.
Legal basis: Supported by Boyea, but not in line, as
Herring notes, with the current subjective approach on mens rea in the
offences against the person.
While we await an authoritative ruling, (b) seems most adequate, don’t
Note: imagine a problem
question scenario where V consents to battery (sex) but ABH results,
and it is not clear from the facts whether or not V consented to ABH
(say, they agreed to have rough sex but none of them anticipated
bruises). You can distinguish two possibilities:
V consented to ABH:
you can consider whether the activity falls under any of the
exceptional categories where consent to ABH or worse is a defence (eg
is it more like Brown or like Wilson?)
you probably cannot apply Slingby, because if V consented that usually means D knew V consented and so D foresaw the harm
V did not consent to ABH:
you cannot consider exceptional categories (for there's no consent!)
you can try to apply Slingsby (if D didn't foresee the harm)
Appropriation: physical act requirement (Briggs),
and bank transfers
Bank transfers and appropriation:
There are always two steps: 'debit of V' - 'credit of D'
'Credit of D' can never amount to appropriation because the
credit is a new 'thing in action', hence it never belonged to another (Preddy)
'Debit of V':
if D himself gives instructions to the bank (eg by using V's card
details or issuing a [valid] cheque in V's name): can be theft
(appropriation – this is what Briggs
means by a 'physical act') (obviously it can also be fraud: false
representation to a machine - s2(5))
if D persuades V that she herself instructs the bank (what
actually happened in Briggs):
no theft (but possible fraud, if deception – don't confuse with
exploitation, eg Hinks)
A note regarding 'physical act' requirement (Briggs) and intangible
property: physical act doesn't mean 'touching'. For else no
intangible property (s3(1)) could ever be appropriated. It means
'assuming the rights of an owner' with relation to the property. In Briggs, D induced V to pay
money directly into the builders' b/a, so D didn't assume the rights of
an owner with respect to the money (as she would have had she directly
instructed the bank to make the transfer) (and moreover she didn't
receive it herself, but it went straight to the builders' b/a).