General Structures of Offences against the person.
Actions against your person autonomy.
-Minor offences are a mix of common law and statutory. Most serious offences are statutory.
-Offences which do not need a sexual element are largely in Offences Against the Person Act 1861 à codified criminal offences (exclusively against people).
Offences which do not a sexual element are largely in Sexual Offences Act 2003.
-But SOA covers offences which are no so obviously against the person- e.g. offences against morality, such as incest and necrophilia; offences to protect the young, such as grooming; cruelty to animals, such as bestiality.
Assault
1) Assault proper
2) Assault encompassing assault and battery.
Assault Actus Reus = causing Victim to apprehend immediate unlawful personal violence (making the person fear violence i.e. they see your fist coming toward them).
Stephen v Myers, Tuberville v Savage, Ansell v Thomas
Assault Mens Rea = intention or Cunningham recklessness. Spratt, Jones.
à If victim does not realise they are about to be hit, they are not assaulted.
Battery
Personal violence implied in battery.
Battery AR= application of unlawful personal force. Pursell v Horn,
Walkden
Country wedding, aphrodisiac put into the wedding drink
Court said it was not battery.
-No force involved involved/ guests drank the poison.
Battery can be committed by omission. Fagan,
DPP v K
Boy put acid in blow-dryer. Another boy turned it on and had acid sprayed in his face.
Battery can be created by omission.
Battery MR= as assault/ Mens rea intended as the application of unlawful personal force.
Sexual Assaults
Old law of indecent assault- assault or battery in circumstances of indecency.
Indecent means sexual. Aggravated offence – you need to find assault or battery first.
-Required an assault or battery. Fairclough v Whipp.
-Either indecent of itself, or in circumstances of indecency.
-Beal v Kelly
Defendant had invited victim to touch his exposed genitals. When he refused, defendant pulled him forward.
-MR = as assault, plus knowledge of circumstances making it indecent.
Court
Defendant is a shop assistant. Pulled a 12 year old girl on his knee and smacked her buttocks. When asked why, he replied “buttock fettish”
Mens rea à assault and knowledge of circumstances makes it indecency.
Sexual Assault: the 2003 act
Assault by penetration (s.2).
Intentional vaginal or anal penetration with body or any other object;
Penetration is sexual (see s.78);
Victim does not consent, and Defendant does not reasonably believe that Victim was consenting.
-Consent, reasonableness, as per rape
à Lesser offence, assault by touching without penetration (s.3). Defendant used stick to lift victim’s shirt.
s.78 (1) some actions are intrinsically sexual regardless of the actions of the defendant.
s.78 (2) something that is non-sexual can be sexual depending on the circumstances.
-An excuse must be reasonable to serve as a defence.
Assault concerning Actual Bodily Harm
Simple offence, plus causing of actual bodily harm OAPA 1861 s.47.
“Bodily” harm can include psychiatric injury, so long as it went beyond simple distress.
Miller
Defendant had been charged with ABH (any hurt or injury calculated to interfere with health or comfort) afterwards, victim had mental breakdown.
Chan-Fook
-Wedding ring stolen. Defendant suspects victim and interrogated him/ locked him upstairs/ in escaping the victim fell out of a window and injured themselves.
Injuries included distress/ humiliation.
à Bodily injury can include mental injury, but being forced into an emotional state is not an injury.
Wounding and GBH under Section 20
Section 20 is the lesser of the two.
“Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm”. OAPA 1861 s.20
AR =wounding (Mcloughlin), or really serious harm (Saunders).
Does the AR require an assault? (Bairstow)
MR = intention or Cunningham recklessness as to some harm. Savage & Parmenter.
Mcloughlin
Fight on a railway, victim had serious graze.
Bairstow
Stalker/ woman left with emotional traumas. Inflict therefore covered under s.20.
Section 18
Much more serious à up to life imprisonment.
“by any means…wound or cause any grievous bodily harm…with intent to do some grievous bodily harm…” OAPA 1861 s. 18
AR= may be broader than s.20, including poisoning?
MR=intent.
You have to intend to wound to cause GBH. If they die you would have the Mens rea for murder.
Removal of former limits on liability in 20th-21 c. originally narrowed defined as nuns or virgins.
-vaginal only (therefore female victims only);
-age limits on offenders;
-marital rape exemption.
2003 Act extends liability to
penetration of the mouth;
unreasonable belief in consent alters the mens rea.
Some limits remain due to emphasis no penis.
Definition under 2003 Act
Intentionally penetrates
Vagina, anus, or mouth;
of another person,
with Defendant’s penis.
Victim does not consent.
D did not reasonably believe that B consented.
Rape: Actus Reus
Penetration by the penis or continuing penetration after consent is withdrawn.
Kaitamaki
Claimed woman had consented/ he was a burglar, she was a householder.
-Consent is where the victim “agrees by choice, and has the freedom and capacity to make that choice” (s.74).
-Absence of consent is presumed under s.75 if Defendant did relevant act knowingly and particular circumstances existed
e.g. use of violence, imprisonment, Victim was asleep or unconsciousness)
If prosecution prove that these circumstances existed…
à however, defence can rebut these presumptions.
Absence of consent is definitely presumed under s.76 if:
-D intentionally deceived the complainant as to the nature or purpose of the relevant act; or
-D intentionally induced the complainant to consent by impersonating a person known personally to the complainant (pretending to be someone famous will not covered by the provisions).
Mens Rea
D must intend to carry out the sexual act (no change).
Must not believe that victim consented, or if they had such belief, the belief was unreasonable.
Cf knowing or Cunningham reckless as to lack of consent Satnam
-Absence of reasonable consent presumed in particular circumstances (see earlier) if defendant knew about them.
Consent in Offences against the person
Generally, we can refuse to consent to physical contact even against our best interests
Re T
34 year old pregnant woman – Jehovah’s witness told she needed blood transfusion or she would die. She consulted with her Mother and chose not to have the transfusion. She had been co-erced by her Mother.
-Just the fact that we go into a tube station is part of consenting to normal incidents.
-Sometimes, we are assumed to consent to normal incidents of contemporary life.
Collins v Wilcock
-But sometimes even if we do consent, this will not prevent liability. Leach
Harms which cannot be consented to
-Cannot consent to death. Cuddy; R v DPP (Pretty)
Cuddy
Defendant and victim fought a dual in London. Victim died/ victim’s consent was no defence.
-Probably can always consent to harms below actual bodily harm or above (Ags Reference 6/1980); or trifling and transient harms accepted by society. Boyea
-Other harms can be restricted by reference to public policy.
Brown
Consensual gay sadomasochism/ no one ever required medical attention à police broke up the ring. Reached the House of Lords.
à Not about the sexual orientation of the defendants, about their sadomasochism.
In determining consent we have to use the same test for minor and major actions.
à Unpredictably dangerous/ activities getting more and more severe/ corrupting younger and younger men.
à Risk of Aids increased.
à This was more than indulgent sex.
à Injurious to participants and unpredictably dangerous.
According public policy would negate consent.
Contrast case can be found in Wilson
-Defendant had branded his initials into his wife’s buttocksà it was a consensual action, but GP reported it to the police.
à sexual activity between husband and wife is no matter for police investigation.
Consent to risk of harm as opposed to harm itself
Can consent to horseplay. Jones
Can consent to risky sexual activity
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Sligsby
Victim had consensual sex involving anal and vaginal penetration.
Afterwards he fisted her, but was wearing rings. She got an infection + died of septicaemia.
Did not batter her, so he could not be found guilty of manslaughter in this context.
So, the better informed you are, the less you can consent to, as you are consenting to the harm rather than the risk of harm. (Totally contrary to medical law à ‘the more you know, the more you can consent to’)
Offences against the person include sexual and non-sexual offences.
The least severe offences are assault (putting someone in fear of battery), and battery (unwanted physical contact). These can include both sexual and mental harms, as well as non-sexual physical contact.
Aggravated forms of assault include both more culpable mens rea elements and more severe harms. Rape is not treated as indecent grievous bodily harm, but as a specific offence with particular rules as to mens rea and actus reus.
Consent to physical contact will sometimes be limited to reference to public policy.
Wednesday, 14 October 2009
Criminal law lectures: Murder
-One of the homicides
-Distinguished by mens rea and punishment.
-Mens rea- malice aforethought.
-Punishment- mandatory
Unless the person actually dies it cannot be murder.
Voluntarily manslaughter à You killed someone, but special circumstances mean you should not be found a murderer.
Involuntarily manslaughter à You didn’t have the mens rea for killing someone.
- Unlawfully… (without a valid defence)
- Causing…
- The death…
- Of a living human being…
- But not just within a year and a day!
-Sine qua non causation means But for not ‘But for the conduct of the defendant, the consequence would not have happened’. This can become silly because you can date thinigs back as far as you want. Therefore the law imposes a filter.
à Legal causation
-Causing =accelerating
-General rules of causation applicable to all results crime, most often demonstrated by homicides.
Rules in Legal and Causation
-Culpable element must be a cause of the result, but need not be the main cause.
Dolloway – Defendant in charge of a horse and carriage. Knew the road very well as did the horse. Defendant did not have hands on the reigns. Horse sped down a hill and ran over a child running out onto the road. Dolloway charged with negligent killing à homicide.
Culpable element has to be the cause of death
-The courts very happy to rank causes in order of power, but even so weak causes will male you liable.
Hennigan- an accident à running someone over. If are only 20% responsible for the accident you are treated as a cause.
Benge- foreman of a railgang/ misread a timetable. Had a section of line up when a train came. Benge has to send a flagman 1000 yards up the track beforehand, but only sent him 450 yards. Train derailed. Benge charged with manslaughter. He tried to spread the blame, by blaming the flagman and the train driver. This was not a defence.
You will be held accountable for your liability. Multiple people could be charged with murder.
-Causation can be established by showing it was reasonably foreseeable.
-Intervening acts can break the chain of causation. (have to be voluntarily). You have to have a chain of causation, but a third party gets involved.
Malcherek- Woman on life support machine. After having been severely injured by the defendant. Doctors turned off machine. Did they kill her?
Malcherek- the defendant’s action were a substantial and operational factor in the death.
Pagett – hostage situation. Police surrounded the building. Pagett came out with the hostage as a human shield. Police opened fire and the hostage died. An intervening act has to be voluntary/ free, deliberate and informed. A reasonable act done in public duty is not a voluntary act.
Blaue – Jehovah’s witness who refused blood transfusion after being stabbed.
‘Thin skull’ rule. If you go around committing crimes, you take the victim as find them. It cannot break the chain of causation. The victim cannot break the chain of causation upon themselves.
3 instances doesn’t break the chain of causation;
1) Original injury still a substantial case.
2) Victim died of an event, foreseeable as likely in the normal course of events.
3) They died from a unforeseeable event, which flows from the victim’s characteristics.
Rules of Legal Causation
Application of rules to medical treatment.
In C20th if you injury someone enough so that they have to go to a doctor, you are responsible.
Jordan – Doctors said that the doctor treating the victim had given the wrong treatment. Palpably wrong treatment broke the chain of causation. Jordan walked free.
Smith- Riot in barracks, victim stabbed/ on the way to the doctor he was dropped several times. The treatment received was very poor at the doctors’. Smith hoped that Jordan would be used. It did not help.
Cheshire- Negligent treatment is so frequent to be not abnormal.
-Application of rules to mental suffering and shock where “no external act of violence was offered, whereof the common law can take notice, and secret things belong to God” (Hale). à killing someone by terror cannot be the rejecting basis for criminal liability. Writing in the context of supernatural consequences in common law (but a child of tender years can die of fright).
Actus Reus: the death
-What is death? à legal system resulting reaching for an irreversible definition.
-Conference of Royal Medical Colleges.
-Airedale NHS Trust v Bland à civil case: Bland in perpetual vegetative state
Death = brainstem death.
Living Beings
Now, every human is protected- no outlawry etc.
But when do we become human beings.
Actus Reus of a living being
-A foetus is not a human being. Current legal position
-Must have existence independent of the mother Poulton, Brain à defendant had strangled her child. Whole baby had to be expelled from mother’s body before it was considered a human being.
But liability can accrue for injuring a foetus that becomes a human being. Attorney General’s Reference (no.3 of 1994
Statutory liability for offence vs foetus
-The old rule was that no prosecution for a homicide could lie if death occurred later than a year and a day from injury. Dyson
-Rule was largely abolished in 1996, but a procedural limit imposed (for injuries more than 3 years old). Law reform (Year and a Day Rule) Act 1996 s.1-3
Mens Rea: Malice aforethought
“the ‘malice’ may have in it nothing really malicious and need never really be ‘aforethought’” (Kenny).
-Intention to kill-
Intention to cause grievous bodily harm. Cunningham à You can be found guilty of murder if someone dies. You wouldn’t have been guilty of attempted murder had they lived. Rule = Probably because its hard to determine whether someone meant to kill or not à but easier to prove you meant them GBH
(Separate from causing risk to life)
C.F. objective and constructive malice
The Punishment
-Mandatory life imprisonment
-Meand minimum period for punishment –the “minimum term”(Practice Statement 2002)
-The indefinite detention until no longer dangerous.
-Then released on licence, not free.
-Why a mandatory, fixed punishment à flags the uniqueness of the crime
Summary
-Murder is unlawfully killing a human being with malice aforethought.
-Killing means accelerating death, and must be a legal result of the defendants actions.
-A human being is any person who has been born.
Malice aforethought is intention to kill or cause grievous bodily harm.
-Distinguished by mens rea and punishment.
-Mens rea- malice aforethought.
-Punishment- mandatory
Unless the person actually dies it cannot be murder.
Voluntarily manslaughter à You killed someone, but special circumstances mean you should not be found a murderer.
Involuntarily manslaughter à You didn’t have the mens rea for killing someone.
- Unlawfully… (without a valid defence)
- Causing…
- The death…
- Of a living human being…
- But not just within a year and a day!
-Sine qua non causation means But for not ‘But for the conduct of the defendant, the consequence would not have happened’. This can become silly because you can date thinigs back as far as you want. Therefore the law imposes a filter.
à Legal causation
-Causing =accelerating
-General rules of causation applicable to all results crime, most often demonstrated by homicides.
Rules in Legal and Causation
-Culpable element must be a cause of the result, but need not be the main cause.
Dolloway – Defendant in charge of a horse and carriage. Knew the road very well as did the horse. Defendant did not have hands on the reigns. Horse sped down a hill and ran over a child running out onto the road. Dolloway charged with negligent killing à homicide.
Culpable element has to be the cause of death
-The courts very happy to rank causes in order of power, but even so weak causes will male you liable.
Hennigan- an accident à running someone over. If are only 20% responsible for the accident you are treated as a cause.
Benge- foreman of a railgang/ misread a timetable. Had a section of line up when a train came. Benge has to send a flagman 1000 yards up the track beforehand, but only sent him 450 yards. Train derailed. Benge charged with manslaughter. He tried to spread the blame, by blaming the flagman and the train driver. This was not a defence.
You will be held accountable for your liability. Multiple people could be charged with murder.
-Causation can be established by showing it was reasonably foreseeable.
-Intervening acts can break the chain of causation. (have to be voluntarily). You have to have a chain of causation, but a third party gets involved.
Malcherek- Woman on life support machine. After having been severely injured by the defendant. Doctors turned off machine. Did they kill her?
Malcherek- the defendant’s action were a substantial and operational factor in the death.
Pagett – hostage situation. Police surrounded the building. Pagett came out with the hostage as a human shield. Police opened fire and the hostage died. An intervening act has to be voluntary/ free, deliberate and informed. A reasonable act done in public duty is not a voluntary act.
Blaue – Jehovah’s witness who refused blood transfusion after being stabbed.
‘Thin skull’ rule. If you go around committing crimes, you take the victim as find them. It cannot break the chain of causation. The victim cannot break the chain of causation upon themselves.
3 instances doesn’t break the chain of causation;
1) Original injury still a substantial case.
2) Victim died of an event, foreseeable as likely in the normal course of events.
3) They died from a unforeseeable event, which flows from the victim’s characteristics.
Rules of Legal Causation
Application of rules to medical treatment.
In C20th if you injury someone enough so that they have to go to a doctor, you are responsible.
Jordan – Doctors said that the doctor treating the victim had given the wrong treatment. Palpably wrong treatment broke the chain of causation. Jordan walked free.
Smith- Riot in barracks, victim stabbed/ on the way to the doctor he was dropped several times. The treatment received was very poor at the doctors’. Smith hoped that Jordan would be used. It did not help.
Cheshire- Negligent treatment is so frequent to be not abnormal.
-Application of rules to mental suffering and shock where “no external act of violence was offered, whereof the common law can take notice, and secret things belong to God” (Hale). à killing someone by terror cannot be the rejecting basis for criminal liability. Writing in the context of supernatural consequences in common law (but a child of tender years can die of fright).
Actus Reus: the death
-What is death? à legal system resulting reaching for an irreversible definition.
-Conference of Royal Medical Colleges.
-Airedale NHS Trust v Bland à civil case: Bland in perpetual vegetative state
Death = brainstem death.
Living Beings
Now, every human is protected- no outlawry etc.
But when do we become human beings.
Actus Reus of a living being
-A foetus is not a human being. Current legal position
-Must have existence independent of the mother Poulton, Brain à defendant had strangled her child. Whole baby had to be expelled from mother’s body before it was considered a human being.
But liability can accrue for injuring a foetus that becomes a human being. Attorney General’s Reference (no.3 of 1994
Statutory liability for offence vs foetus
-The old rule was that no prosecution for a homicide could lie if death occurred later than a year and a day from injury. Dyson
-Rule was largely abolished in 1996, but a procedural limit imposed (for injuries more than 3 years old). Law reform (Year and a Day Rule) Act 1996 s.1-3
Mens Rea: Malice aforethought
“the ‘malice’ may have in it nothing really malicious and need never really be ‘aforethought’” (Kenny).
-Intention to kill-
Intention to cause grievous bodily harm. Cunningham à You can be found guilty of murder if someone dies. You wouldn’t have been guilty of attempted murder had they lived. Rule = Probably because its hard to determine whether someone meant to kill or not à but easier to prove you meant them GBH
(Separate from causing risk to life)
C.F. objective and constructive malice
The Punishment
-Mandatory life imprisonment
-Meand minimum period for punishment –the “minimum term”(Practice Statement 2002)
-The indefinite detention until no longer dangerous.
-Then released on licence, not free.
-Why a mandatory, fixed punishment à flags the uniqueness of the crime
Summary
-Murder is unlawfully killing a human being with malice aforethought.
-Killing means accelerating death, and must be a legal result of the defendants actions.
-A human being is any person who has been born.
Malice aforethought is intention to kill or cause grievous bodily harm.
Criminal law lectures: Mens Rea
Crime =actus rea + mens rea + no defence.
Any crime, except the quasi-crimes of strict liability, requires a culpable mental element - the mens rea.
-Crimes can require intention, recklessness, negligence, or (exceptionally) be of strict liability and require no mens rea.
-The defendants mistake can mean they have no mens rea.
Two defendants can perform the same actions, create the same actus reus, but only onw will be liable. The courts have to try to reconstruct the mental state of each defendant.
A person can be victim of an actus reus, but if the defendant lacks mens rea, there has been no crime. So you can be wounded without anyone committing the crime of wounding.
desire ------> Intention <----- foresight
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motive
Most serious statues require intention. You can intend something without desiring it.
Direct intent à you intended to do something.
Indirect intent à you don’t want the means, but you do it to achieve your ultimate end.
-A reasonable person (no insane) must intend the reasonable consequences of their actions DPP v Smith. Objective question about what should have going on in your head.
But the Criminal Law Act 1967 s.8 emphasised subjectivity. Where liability turns on whether he inended or foresaw something you should look at all the evidence. So did that mean that you intended what you actually forsaw? Hyam v DPP cf. Moloney. Certain consequences/ highly probably consequence. If you knew it was highly probable that your actions would kill, you are guilty or murder.
-Relationship remains complex. Hancock and Shankland, Nedrick, Walker and Hayles, Woolin, Matthews, R v MD.
Not enough to knew that harm will follow from your actions. You must forsee it as a moral certainty.
Virtual Certainty from subjective defendant’s perspective. How likely did the defendant think it was?
A mistake as to law will not affect liability. Bailey Ignorance of the law is no defence.
A mistake as to an issue, where that mistake is irrelevant, will not affect liability. Mistke as to the law or its application to you will not affect liability.
-A mistake so that the defendant did not have the relevant mens rea will result in no liability – even if the mistake is unreasonable. Tolson , DPP v Morgan à A person dressed up as a tree is shot with an air rifle, person dies. If you generally believe that person was a tree, you are not guilty of murder.
When the defendant makes a mistake, assess the liability as if the mistake was true.
Transferred Intention
An intention to injure one person will ground criminal liability if another is harmed. Latimer. If you take a punch at one person and they duck and you hit someone else, you are liable.
-But intention will not transfer across offences. Pembliton, McBride v Turnock.
Man got into fight outside a pub, threw a stone and it broke a window. Not guilty of damage to property because intention will not transfer across offences.
-So an intention to criminal damage is not an intention to kill, even if you mean to shoot a car and hit a person instead.
Defences will also transferà your self-defence claim will also transfer.
A mistake must drop down to the level of an excuse.
Justified = lawful + righteous
Excuse = you do not say what you did is right, but you should be excused punishment.
Recklessness
Balances social utility of desired result vs. social disutility of undesired result.
Social utility includes both benefit, and probability of benefit.
Social disutility includes both disbenefit and probability of disbenefit.
Consider ambulance driving vs. road racing.
Recklessness as unjustified risk taking. Was this an unjustified risk?
Cunningham Recklessness
Subjective risk taking. Along with intent, can form “malice”. Cunningham.
You see a risk and you do it anyway.
Statute term for malicious intention + recklessness
Not the state of mind of “not caring less”.
Not evil or inchoate culpability.
-Thus, not recklessness if no foresight of the risk.
Even if unreasonable not to have foreseen the risk. Takes into account incapacity to foresee risk. Stephenson (case of the schizophrenic/ reduced ability to see the risk.
Caldwell definition of Recklessness. If you saw a risk and took it anyway you were reckless. If you saw a risk and took it anyway you were reckless. Also if a reasonable person created an obvious risk and did nothing about it, you would be guilty of recklessness
Abolished, at least for major offences? R. v R and G.
R and G were two boys who set fire to a wheelie bin burnt down a whole supermarket. Refused version of Caldwell à given the boys reduced powers.
Lords rejected Caldwell entirely. Caldwell was wrong, produced injustice, criticised by academics à use Cunningham
Summary
Most crimes require some form of mens rea – a culpable mental state of the defendant. A mistake can be evidence that the defendant lacked this state.
Intention is not motive, desire, or foresight, but can be evidenced by all three.
Recklessness is conscious risk taking.
Any crime, except the quasi-crimes of strict liability, requires a culpable mental element - the mens rea.
-Crimes can require intention, recklessness, negligence, or (exceptionally) be of strict liability and require no mens rea.
-The defendants mistake can mean they have no mens rea.
Two defendants can perform the same actions, create the same actus reus, but only onw will be liable. The courts have to try to reconstruct the mental state of each defendant.
A person can be victim of an actus reus, but if the defendant lacks mens rea, there has been no crime. So you can be wounded without anyone committing the crime of wounding.
desire ------> Intention <----- foresight
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motive
Most serious statues require intention. You can intend something without desiring it.
Direct intent à you intended to do something.
Indirect intent à you don’t want the means, but you do it to achieve your ultimate end.
-A reasonable person (no insane) must intend the reasonable consequences of their actions DPP v Smith. Objective question about what should have going on in your head.
But the Criminal Law Act 1967 s.8 emphasised subjectivity. Where liability turns on whether he inended or foresaw something you should look at all the evidence. So did that mean that you intended what you actually forsaw? Hyam v DPP cf. Moloney. Certain consequences/ highly probably consequence. If you knew it was highly probable that your actions would kill, you are guilty or murder.
-Relationship remains complex. Hancock and Shankland, Nedrick, Walker and Hayles, Woolin, Matthews, R v MD.
Not enough to knew that harm will follow from your actions. You must forsee it as a moral certainty.
Virtual Certainty from subjective defendant’s perspective. How likely did the defendant think it was?
A mistake as to law will not affect liability. Bailey Ignorance of the law is no defence.
A mistake as to an issue, where that mistake is irrelevant, will not affect liability. Mistke as to the law or its application to you will not affect liability.
-A mistake so that the defendant did not have the relevant mens rea will result in no liability – even if the mistake is unreasonable. Tolson , DPP v Morgan à A person dressed up as a tree is shot with an air rifle, person dies. If you generally believe that person was a tree, you are not guilty of murder.
When the defendant makes a mistake, assess the liability as if the mistake was true.
Transferred Intention
An intention to injure one person will ground criminal liability if another is harmed. Latimer. If you take a punch at one person and they duck and you hit someone else, you are liable.
-But intention will not transfer across offences. Pembliton, McBride v Turnock.
Man got into fight outside a pub, threw a stone and it broke a window. Not guilty of damage to property because intention will not transfer across offences.
-So an intention to criminal damage is not an intention to kill, even if you mean to shoot a car and hit a person instead.
Defences will also transferà your self-defence claim will also transfer.
A mistake must drop down to the level of an excuse.
Justified = lawful + righteous
Excuse = you do not say what you did is right, but you should be excused punishment.
Recklessness
Balances social utility of desired result vs. social disutility of undesired result.
Social utility includes both benefit, and probability of benefit.
Social disutility includes both disbenefit and probability of disbenefit.
Consider ambulance driving vs. road racing.
Recklessness as unjustified risk taking. Was this an unjustified risk?
Cunningham Recklessness
Subjective risk taking. Along with intent, can form “malice”. Cunningham.
You see a risk and you do it anyway.
Statute term for malicious intention + recklessness
Not the state of mind of “not caring less”.
Not evil or inchoate culpability.
-Thus, not recklessness if no foresight of the risk.
Even if unreasonable not to have foreseen the risk. Takes into account incapacity to foresee risk. Stephenson (case of the schizophrenic/ reduced ability to see the risk.
Caldwell definition of Recklessness. If you saw a risk and took it anyway you were reckless. If you saw a risk and took it anyway you were reckless. Also if a reasonable person created an obvious risk and did nothing about it, you would be guilty of recklessness
Abolished, at least for major offences? R. v R and G.
R and G were two boys who set fire to a wheelie bin burnt down a whole supermarket. Refused version of Caldwell à given the boys reduced powers.
Lords rejected Caldwell entirely. Caldwell was wrong, produced injustice, criticised by academics à use Cunningham
Summary
Most crimes require some form of mens rea – a culpable mental state of the defendant. A mistake can be evidence that the defendant lacked this state.
Intention is not motive, desire, or foresight, but can be evidenced by all three.
Recklessness is conscious risk taking.
Criminal law lectures: Actus Reus
Actus reus - the guilty act
Mens rea - state of mind of the defendant
Actus reus – conduct
- result or consequence crimes (ie murder, ‘I shot someone, they died’)
- circumstances, ie theft/ you can only steel something if it already
belongs to someone else.
Absence of a valid defence à valid defence actus reus + mens rea (liable), but with a justification or excuse for the action, (ie I killed a man because he was attacking me)
-Actus Reus requires a willed act of the defendant
- state of affairs
Winzar v CC of Kent
An omission (ie failure to take action) will generally not ground liability.
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however, there are examples à RTA 1988 s. 6 Failure to give a breathalyser sample
when asked to by a police officer.
à P.C. Dytham failed to act to prevent a man being killed.
à Speck was an adult male. An eight year old girl put her
hand on his penis, during which time he became
sexually aroused. He remained passive throughout the
incident. He was found guilty of gross indecency for
failing to discourage her and prevent this event.
When faced with a particular crime, do omissions cover it?
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Failure to carry out a particular duty example: You must save your children or elderly parent if they are drowning in a puddle.
Gibbons and Proctor 1913 à Gibbons was the biological father of seven year old victim. Mother was no longer involved. Proctor lived with Gibbons and ran the household with money received from Gibbons. Proctor allowed the child to starve. Proctor found liable because mother had been excluded from the household/ therefore Proctor was regarded by the court to have taken on the ‘moral and legal’ responsibility to look after the child. She had become the ‘de facto’ mother. Gibbon was also found liable of failing to ensure that the person he had obligated to look after his child carried out her responsibilities.
Stone and Dobinson à If you take on duty of care (and exclude others) and fail to carry these out, you become guilty of manslaughter A lodger had become ill. The two defendants looked after her for a bit. Then they stopped. As she was bedridden and unable to get outside assistance, she died.
Pittwood case à Failure to carry out his contractual duty to close a gate when the train came and so people were killed. He was found guilty of homicide.
Fagan ran over a police man’s foot and made no attempt to remove the vehicle à classified as assault. Weight of the man transferred from the car to the policeman’s foot, therefore treated the same as a club being used as an assault weapon.
Miller –Bed mattress on fire after he dropped a cigarette butt/ failed to put it out/ would have been at no personal risk to intervene à therefore guilty of arson.
You require an actus reus and a mens rea
What do you do in a murder case if the actus reus has been and gone before a mens rea? Thabo Meli caseà Where you have a plan, the end result being to kill someone. If they die at the wrong place, you are still liable.
Church case àman lashed out, thought he had killed the person, panicked and tried to dispose of the body in the canal. She drowned.
Court found that he had the mens rea when he had struck her.
Courts don’t take if there is a coincidence between actus reus and mens rea, if there is clear moral culpability.
Actus Reus is very much about omissions
Mens rea = cluster of mental states.
Mens rea does not always have to cover the entire actus reus?
Example: Gay Christian poet wrote about Jesus. Blasphemy not because the
writer published it, but because it enraged Christians.
In some cases the mens rea is very small indeed;
-Prince Case at the beginning of the century. Man convicted of taking a girl under 16 out of the possession of her parents. Did not matter that he thought she was 18. Statute didn’t mention knowledge. []
[]
became the authority for ages, knowledge of case irrelevant in sexual offences
concerning age.
However, recently the Young Man’s defence has been incorporated into statute. If you are under 24, you are only guilt of sexual assault if you knew she was under 16.
Assumption that most crimes require a men rea –Liberal state.
Strict Liability offences are generally a bad thing
Having little or no mens rea in criminal law.
Arguments in favour of strict liability
-Victim’s groups often favour this
-Focus on the consequences
-Makes the law more certain and saves court time.
Arguments in favour of mens rea
-Moral culpability
-Consequences of being found guilty of criminal actions/ social stigma
-Acknowledges differences between an accident and a deliberate action.
“Big” Mens Rea
-autonomy
-moral culpability
-deterrent (if the person does not know they are committing an offence, how will the
deterrent work?)
Mens rea - state of mind of the defendant
Actus reus – conduct
- result or consequence crimes (ie murder, ‘I shot someone, they died’)
- circumstances, ie theft/ you can only steel something if it already
belongs to someone else.
Absence of a valid defence à valid defence actus reus + mens rea (liable), but with a justification or excuse for the action, (ie I killed a man because he was attacking me)
-Actus Reus requires a willed act of the defendant
- state of affairs
Winzar v CC of Kent
An omission (ie failure to take action) will generally not ground liability.
[]
however, there are examples à RTA 1988 s. 6 Failure to give a breathalyser sample
when asked to by a police officer.
à P.C. Dytham failed to act to prevent a man being killed.
à Speck was an adult male. An eight year old girl put her
hand on his penis, during which time he became
sexually aroused. He remained passive throughout the
incident. He was found guilty of gross indecency for
failing to discourage her and prevent this event.
When faced with a particular crime, do omissions cover it?
[]
Failure to carry out a particular duty example: You must save your children or elderly parent if they are drowning in a puddle.
Gibbons and Proctor 1913 à Gibbons was the biological father of seven year old victim. Mother was no longer involved. Proctor lived with Gibbons and ran the household with money received from Gibbons. Proctor allowed the child to starve. Proctor found liable because mother had been excluded from the household/ therefore Proctor was regarded by the court to have taken on the ‘moral and legal’ responsibility to look after the child. She had become the ‘de facto’ mother. Gibbon was also found liable of failing to ensure that the person he had obligated to look after his child carried out her responsibilities.
Stone and Dobinson à If you take on duty of care (and exclude others) and fail to carry these out, you become guilty of manslaughter A lodger had become ill. The two defendants looked after her for a bit. Then they stopped. As she was bedridden and unable to get outside assistance, she died.
Pittwood case à Failure to carry out his contractual duty to close a gate when the train came and so people were killed. He was found guilty of homicide.
Fagan ran over a police man’s foot and made no attempt to remove the vehicle à classified as assault. Weight of the man transferred from the car to the policeman’s foot, therefore treated the same as a club being used as an assault weapon.
Miller –Bed mattress on fire after he dropped a cigarette butt/ failed to put it out/ would have been at no personal risk to intervene à therefore guilty of arson.
You require an actus reus and a mens rea
What do you do in a murder case if the actus reus has been and gone before a mens rea? Thabo Meli caseà Where you have a plan, the end result being to kill someone. If they die at the wrong place, you are still liable.
Church case àman lashed out, thought he had killed the person, panicked and tried to dispose of the body in the canal. She drowned.
Court found that he had the mens rea when he had struck her.
Courts don’t take if there is a coincidence between actus reus and mens rea, if there is clear moral culpability.
Actus Reus is very much about omissions
Mens rea = cluster of mental states.
Mens rea does not always have to cover the entire actus reus?
Example: Gay Christian poet wrote about Jesus. Blasphemy not because the
writer published it, but because it enraged Christians.
In some cases the mens rea is very small indeed;
-Prince Case at the beginning of the century. Man convicted of taking a girl under 16 out of the possession of her parents. Did not matter that he thought she was 18. Statute didn’t mention knowledge. []
[]
became the authority for ages, knowledge of case irrelevant in sexual offences
concerning age.
However, recently the Young Man’s defence has been incorporated into statute. If you are under 24, you are only guilt of sexual assault if you knew she was under 16.
Assumption that most crimes require a men rea –Liberal state.
Strict Liability offences are generally a bad thing
Having little or no mens rea in criminal law.
Arguments in favour of strict liability
-Victim’s groups often favour this
-Focus on the consequences
-Makes the law more certain and saves court time.
Arguments in favour of mens rea
-Moral culpability
-Consequences of being found guilty of criminal actions/ social stigma
-Acknowledges differences between an accident and a deliberate action.
“Big” Mens Rea
-autonomy
-moral culpability
-deterrent (if the person does not know they are committing an offence, how will the
deterrent work?)
Criminal law lectures: Introduction
What is the Criminal Law?
-Criminal Law is the study of the legal rules which determine criminal liability
-About trying to decide whether someone has committed a crime.
Who can take a case to court?
-The state and not the victim
-Brown v Smith (civil case)
-R. v Smith (criminal case)
What happens in a criminal court?
-Jury v judge/ In a civil trial, a Judge makes the decision. In criminal cases, Juries make decisions on innocent/guilty – Judge merely directs the Jury on legal points and decides the punishment.
-Burden of proof: beyond reasonable doubt/ Civil case is based on a balance of probabilities.
Punishment
- Punishment not compensation.
- Criminal record.
What is a crime?
E.g. Murder, manslaughter, assaults, property offences (theft and deception), inchoate offences (attempt, conspiracy and incitement).
Criminal law is not about trying to work out the facts of the case and whether evidence can prove guilt.
-Ann stabs Beth intending to kill her. Beth dies.
-Cat stabs Beth intending to seriously injury her. Beth dies.
-Debs punches Beth in the face intending to give her a black eye. Debs hits harder than she expected. Beth dies
Is Ann worse than Debs and Cat?
Is Ann worse than Debs?
-Or does it make it no difference what they intended, Beth dies in every case.
The Criminal law is interested in
-Action (including the result)
-Mental state
Types of reasons that must be taken into account.
-Ann stabs Beth intending to kill her. Beth dies.
-Beth had cheated Ann out of £50,000 and Ann was just getting her own back.
-Ann has walked in on Beth in Bed with Eric, Ann’s husband.
-Beth was a serial killer trying to kill Ann.
-Defences
Structure of a crime. Three main elements:
-Act (includes result) ACTUS REUS
-Mental state MENS REA
-Defence (or lack of it)
Principles of the Criminal Law
-Structure of the Law
-Actus Reus (act plus result)
-Mens Rea (mental state)
-Defence (lack of)
Principles that underpin the criminal law. The principles the criminal law should aspire to achieve.
Criminal law is about measuring how blameworthy someone is.
Why do we need principles?
-Can’t just rely on intuition and instinct.
-Need principles to measure blameworthiness.
Use the principles to test the coherence of the criminal law and to criticise it.
Principle of Autonomy
-Humans are rational and choose how to act.
-Look at Murder scenarios.
-How would the principle of autonomy apportion blame?
Ann is responsible for death, choose to kill Beth
Debs did not choose to kill Beth, so will be less harshly treated by the law.
-Principle of autonomy explains why he law is interested in Mens Rea (mental state)
CHOICE
But how does the principle of autonomy apply to;
-Young children.
-The insane.
-Those under the influence of drink or drugs.
Interplay between principles of autonomy and welfare
Principle of Welfare
-The purpose of the criminal law is to protect society from harmful behaviour and dangerous.
-Principle of Welfare and:
The insane: Not held criminally responsible, but will secured in a Mental hospital until they are no longer deemed a threat to society.
Those under the influence of drink or of drugs: If Ann is drunk and kills Beth (did not know what she was doing), she should not be held criminally responsible.
-Mens Rea (mental state): Only those who choose to bring about harm should be held culpable BUT what about Debs?
-Correspondence Principle: Mens Rea and Actus Reus (result of the crime)
should correspond. (People should only be guilty for the action they choose to bring about).
-Constructive Crime: When the actus reus goes beyond the mens rea (their actions resulted in an outcome they had not intended).
-Criminal Law is the study of the legal rules which determine criminal liability
-About trying to decide whether someone has committed a crime.
Who can take a case to court?
-The state and not the victim
-Brown v Smith (civil case)
-R. v Smith (criminal case)
What happens in a criminal court?
-Jury v judge/ In a civil trial, a Judge makes the decision. In criminal cases, Juries make decisions on innocent/guilty – Judge merely directs the Jury on legal points and decides the punishment.
-Burden of proof: beyond reasonable doubt/ Civil case is based on a balance of probabilities.
Punishment
- Punishment not compensation.
- Criminal record.
What is a crime?
E.g. Murder, manslaughter, assaults, property offences (theft and deception), inchoate offences (attempt, conspiracy and incitement).
Criminal law is not about trying to work out the facts of the case and whether evidence can prove guilt.
-Ann stabs Beth intending to kill her. Beth dies.
-Cat stabs Beth intending to seriously injury her. Beth dies.
-Debs punches Beth in the face intending to give her a black eye. Debs hits harder than she expected. Beth dies
Is Ann worse than Debs and Cat?
Is Ann worse than Debs?
-Or does it make it no difference what they intended, Beth dies in every case.
The Criminal law is interested in
-Action (including the result)
-Mental state
Types of reasons that must be taken into account.
-Ann stabs Beth intending to kill her. Beth dies.
-Beth had cheated Ann out of £50,000 and Ann was just getting her own back.
-Ann has walked in on Beth in Bed with Eric, Ann’s husband.
-Beth was a serial killer trying to kill Ann.
-Defences
Structure of a crime. Three main elements:
-Act (includes result) ACTUS REUS
-Mental state MENS REA
-Defence (or lack of it)
Principles of the Criminal Law
-Structure of the Law
-Actus Reus (act plus result)
-Mens Rea (mental state)
-Defence (lack of)
Principles that underpin the criminal law. The principles the criminal law should aspire to achieve.
Criminal law is about measuring how blameworthy someone is.
Why do we need principles?
-Can’t just rely on intuition and instinct.
-Need principles to measure blameworthiness.
Use the principles to test the coherence of the criminal law and to criticise it.
Principle of Autonomy
-Humans are rational and choose how to act.
-Look at Murder scenarios.
-How would the principle of autonomy apportion blame?
Ann is responsible for death, choose to kill Beth
Debs did not choose to kill Beth, so will be less harshly treated by the law.
-Principle of autonomy explains why he law is interested in Mens Rea (mental state)
CHOICE
But how does the principle of autonomy apply to;
-Young children.
-The insane.
-Those under the influence of drink or drugs.
Interplay between principles of autonomy and welfare
Principle of Welfare
-The purpose of the criminal law is to protect society from harmful behaviour and dangerous.
-Principle of Welfare and:
The insane: Not held criminally responsible, but will secured in a Mental hospital until they are no longer deemed a threat to society.
Those under the influence of drink or of drugs: If Ann is drunk and kills Beth (did not know what she was doing), she should not be held criminally responsible.
-Mens Rea (mental state): Only those who choose to bring about harm should be held culpable BUT what about Debs?
-Correspondence Principle: Mens Rea and Actus Reus (result of the crime)
should correspond. (People should only be guilty for the action they choose to bring about).
-Constructive Crime: When the actus reus goes beyond the mens rea (their actions resulted in an outcome they had not intended).
Thursday, 8 October 2009
Contract law Lectures: Frustration
Nature of the Doctrine
Performance of the obligation has become either impossible or futile.
-Paradine v Jane (1647)
-Taylor v Caldwell (1863)
Two parties had entered into a contract for the hire of a music hall. Considerable expense to do this. Just before the first contract, the music hall was destroyed by fire. Owner of the hall could not perform his obligation. Other party sued to try to recover expenses and damages. ‘Your music hall, your obligation to provide and your risk.’
-Courts interested to see where the business risk lay. If no risk is allocated (unanticipated by the parties) then all obligations potentially ‘cancellable’.
Problem= recovery of expenses.
Davis v Fareham UDC (1956) à Revised explanation of frustration.
Building contractors had entered into a contract to build 78 homes in a fixed period of time. However, chronic shortage of labourers made this impossible. Building company had projected 8 months, it would actually take much longer (22 months). Building company had pitched this venture at a time of demobilisation and chronic manpower shortages. H of L said that this was not frustration. Builders could have built the houses on time had they been willing to pay much higher wages and bought up all the labour in the county. They had not properly assessed the risk of the undertaking.
Contracts are subject to an implied condition that will be excused if performance is impossible without the fault of the contract
Illustrations of Frustration
-Destruction of subject matter (Taylor v Caldwell)
-Personal incapacity (Condor v Barron Knights – One of the band members was ill. Band said they could not perform. Court said performance was not impossible, just more difficult).
-(persistent) illness/absence (Shepherd v Jerrom – Worker did not turn up for six months. Then he did. When he turned up, his employer said he no longer worked there anymore. Worker had been in prison for the previous six months, uncertainty had frustrated the relationship. ‘We didn’t dismiss, the contract collapsed around us’).
-non-occurrence of an event (Krell v Henry – Coronation of Edward VII. A group of people hired a flat overlooking the procession. A third of the price paid as an initial deposit. Two days before the procession was due, it was cancelled. Owner wanted deposit and balance for expenses incurred whilst preparing the flat.
£25 already paid/ frustrating event/ £50 still to pay
Consequence: Obligation to pay balance was discharged. Deposit was not recoverable and balance was not payable.
-supervening illegality (Denny Mott v James Fraser)
-industrial action (The Nema)
-the effects of war (Finelvet AG v Vinava Shipping)
Limitations on the Doctrine
The contract must not still have some surviving purpose-
Herne Bay Steam Co v Hutton (1903)
Review of the Fleet. King cancelled. Steam boat still there. Court said that the Contract had not been frustrated because the fleet tour could still be carried out.
Tsakiroglou v Noblee and Thorl (1962)
Journey through the Suez Canal from Sudan to Hamburg (regular route taken for shipping). Suez crisis led to the shutting down of the passage. H of L said contract was not frustrated. Could still be carried out using the Cape/ always part of the business risk.
Self-induced frustration
Maritime National Fish v Ocean Trawlers (1935)
Hiring of trawlers for fishing. Defendants had 5 trawlers and entered into a contract to supply them for use. However, the Gvt. Only gave them 3 licences. Plaintiffs who had been expecting 5 trawlers sued the defendants for breach of contract.
The defendants pleaded frustration. However, the Court said that this was self-induced frustration because they had entered into the contract before ensuring that they had adequate licence permits.
Events Foreseen and Provided for
Jackson v Union Marine Ins (1874)
Land
Contracts for the sale of land can be frustrated.
Amalgamated investment v J. Walker (1976)
Development potential of land had disappeared when land was declared listed. Contract – had it now become impossible à frustrating events need to occur before frustrating events arise.
National Carriers Ltd v Panalpina (1981)
Plaintiff leased a warehouse to the defendant for a year. In May 1979, the local authority closed the only access road to the warehouse because of the dangerous condition of the road. The closure was to last 18 months. Plaintiff claimed rent due. Defendant claimed that the lease was frustrated by the closure.
- H of L said denial of access to the warehouse was not sufficiently serious to frustrate the contract. Doctrine of frustration will apply to leases, but only in exceptions in circumstances.
The Effect of Frustration
a) at common law
- the contract is automatically terminated;
- only future obligations are discharged, those which arose prior to the event still survive…
Chandler v Webster (1904) 1 KB493
£25 deposit paid –led to many cases with unsatisfactory results.
At common law (cont)
Recovery of money paid will be allowed if there has been a total failure of consideration.
Fibrosa Spolka Lawson (1943)
However, there can be no recovery for which work done before the frustrating event but for which payment was not yet due.
Appleby v Myers
b) Law reform (frustrated Contracts) Act 1943
Section 1(2): money paid or payable prior to frustration.
Changes Chandler & Webster decision. Deposits can be recoverable.
Law Reform (Frustrated Contracts) Act 1943
Section 1(3): compensation for a valuable benefit.
If a party has obtained a valuable benefit, the other party can obtain compensation, to the extent that the court considers just in all the circumstances. The benefit must survive the frustrating event, however, otherwise there can be no recovery.
BP Exploration v Hunt (1982) 1 All E.R 925
Libyan oil industry nationalised/ ruined business deal/ Court tired to apportion the losses fairly.
Performance of the obligation has become either impossible or futile.
-Paradine v Jane (1647)
-Taylor v Caldwell (1863)
Two parties had entered into a contract for the hire of a music hall. Considerable expense to do this. Just before the first contract, the music hall was destroyed by fire. Owner of the hall could not perform his obligation. Other party sued to try to recover expenses and damages. ‘Your music hall, your obligation to provide and your risk.’
-Courts interested to see where the business risk lay. If no risk is allocated (unanticipated by the parties) then all obligations potentially ‘cancellable’.
Problem= recovery of expenses.
Davis v Fareham UDC (1956) à Revised explanation of frustration.
Building contractors had entered into a contract to build 78 homes in a fixed period of time. However, chronic shortage of labourers made this impossible. Building company had projected 8 months, it would actually take much longer (22 months). Building company had pitched this venture at a time of demobilisation and chronic manpower shortages. H of L said that this was not frustration. Builders could have built the houses on time had they been willing to pay much higher wages and bought up all the labour in the county. They had not properly assessed the risk of the undertaking.
Contracts are subject to an implied condition that will be excused if performance is impossible without the fault of the contract
Illustrations of Frustration
-Destruction of subject matter (Taylor v Caldwell)
-Personal incapacity (Condor v Barron Knights – One of the band members was ill. Band said they could not perform. Court said performance was not impossible, just more difficult).
-(persistent) illness/absence (Shepherd v Jerrom – Worker did not turn up for six months. Then he did. When he turned up, his employer said he no longer worked there anymore. Worker had been in prison for the previous six months, uncertainty had frustrated the relationship. ‘We didn’t dismiss, the contract collapsed around us’).
-non-occurrence of an event (Krell v Henry – Coronation of Edward VII. A group of people hired a flat overlooking the procession. A third of the price paid as an initial deposit. Two days before the procession was due, it was cancelled. Owner wanted deposit and balance for expenses incurred whilst preparing the flat.
£25 already paid/ frustrating event/ £50 still to pay
Consequence: Obligation to pay balance was discharged. Deposit was not recoverable and balance was not payable.
-supervening illegality (Denny Mott v James Fraser)
-industrial action (The Nema)
-the effects of war (Finelvet AG v Vinava Shipping)
Limitations on the Doctrine
The contract must not still have some surviving purpose-
Herne Bay Steam Co v Hutton (1903)
Review of the Fleet. King cancelled. Steam boat still there. Court said that the Contract had not been frustrated because the fleet tour could still be carried out.
Tsakiroglou v Noblee and Thorl (1962)
Journey through the Suez Canal from Sudan to Hamburg (regular route taken for shipping). Suez crisis led to the shutting down of the passage. H of L said contract was not frustrated. Could still be carried out using the Cape/ always part of the business risk.
Self-induced frustration
Maritime National Fish v Ocean Trawlers (1935)
Hiring of trawlers for fishing. Defendants had 5 trawlers and entered into a contract to supply them for use. However, the Gvt. Only gave them 3 licences. Plaintiffs who had been expecting 5 trawlers sued the defendants for breach of contract.
The defendants pleaded frustration. However, the Court said that this was self-induced frustration because they had entered into the contract before ensuring that they had adequate licence permits.
Events Foreseen and Provided for
Jackson v Union Marine Ins (1874)
Land
Contracts for the sale of land can be frustrated.
Amalgamated investment v J. Walker (1976)
Development potential of land had disappeared when land was declared listed. Contract – had it now become impossible à frustrating events need to occur before frustrating events arise.
National Carriers Ltd v Panalpina (1981)
Plaintiff leased a warehouse to the defendant for a year. In May 1979, the local authority closed the only access road to the warehouse because of the dangerous condition of the road. The closure was to last 18 months. Plaintiff claimed rent due. Defendant claimed that the lease was frustrated by the closure.
- H of L said denial of access to the warehouse was not sufficiently serious to frustrate the contract. Doctrine of frustration will apply to leases, but only in exceptions in circumstances.
The Effect of Frustration
a) at common law
- the contract is automatically terminated;
- only future obligations are discharged, those which arose prior to the event still survive…
Chandler v Webster (1904) 1 KB493
£25 deposit paid –led to many cases with unsatisfactory results.
At common law (cont)
Recovery of money paid will be allowed if there has been a total failure of consideration.
Fibrosa Spolka Lawson (1943)
However, there can be no recovery for which work done before the frustrating event but for which payment was not yet due.
Appleby v Myers
b) Law reform (frustrated Contracts) Act 1943
Section 1(2): money paid or payable prior to frustration.
Changes Chandler & Webster decision. Deposits can be recoverable.
Law Reform (Frustrated Contracts) Act 1943
Section 1(3): compensation for a valuable benefit.
If a party has obtained a valuable benefit, the other party can obtain compensation, to the extent that the court considers just in all the circumstances. The benefit must survive the frustrating event, however, otherwise there can be no recovery.
BP Exploration v Hunt (1982) 1 All E.R 925
Libyan oil industry nationalised/ ruined business deal/ Court tired to apportion the losses fairly.
Contract law Lectures: Mistake
Contract contaminated by a fundamental mistake.
Blame is not an appropriate reaction.
Apparent that one or both sides were completely misunderstanding the environment they were in.
Mistake to be fundamental ‘I never intended to make that contract’.
-In exceptional circumstances, court may declare contract void.
Some contamination at the time they made the agreement.
Confusion as to whether there are two strands of law operating in this area.
-Common law + Equity
(Read judgement of Lord Philips MR in Great Peace Shipping v Tsauliris Salvage 2002) a re-established Common law as the only means of dealing with contract law.
1) Common initial mistake
Mistake as to the existence of subject matter.
Couturier v Hastie (1856)
Two commercial traders negotiating for the sale of a large assignment of corn. Both believed that the corn was on a ship heading from Salonica to London. What they didn’t know was that well before they had made their agreement, the corn had rotted away and been dumped.
-Was it possible to make a binding agreement when the subject matter did not exist.
a Court declared the contract void.
This case concerned specific goods. Mistake affects the contract, but no the consequences of the agreement (i.e. sub-contracts following from the buyer’s sale). Where there is a contrast for specific goods, and those goods perish, the contract will be void.
McRae v Commonwealth Disposals (1951)
Defendant put out to tender the right to salvage a wrecked tanker. When the plaintiff sent an expedition to the start the operation, it turned out that the tanker + the reef were not there.
à Buyer had relied on defendant’s statement. Both parties believed that there was a tanker to be salvaged. Co-ordinates and bearing did not led to the tanker.
-The Court was concerned with the way the contract had been constructed.
Not a mistake, but a failed promise.
[]
One trigger is reliance (when people have gone to considerable expense to carry out an agreement)
Found to be in breach of contract.
Mistake as to quantity of subject matter
Bell v Lever Bros (1932) was the leading case.
Two directors of a company. Chairman of the company had fixed term of employment for five years.
Lever Bros. wanted to get rid of the Chairman and so offered him £30,000 compensation. He agreed and left the company.
-It was later discovered that the Chairman had been mismanaging funds through various shady dealings. They would have had the grounds to sack him without compensation.
[]
Lev. Bros tried to sue him for the £30,000
Mistake
H of L said that the contract had been binding. They were not confused as to what they were doing. Lou. Bros. got what they wanted (the Chairman had stepped down).
Therefore no mistake had occurred.
Leaf v International Galleries
Galleries sold painting to Leaf attributed to be a Constable. Market value much higher for a genuine work. Leaf bought it and 5 years later tried to sell it to Christies. Christies evaluated it and said it was a fake.
-Leaf tried to get his money back from International Galleries.
However, Galleries had not guaranteed it was a genuine. Leaf had made a mistake as to the value of the painting.
-Then Leaf tried to turn the case into the misrepresentation claim. Leaf lost the claim for an equitable remedy because it had been 5 years.
Great Peace Shipping v Tsauliris Salvage (2002)
Ship in the Indian Ocean and in distress.
Tsauliris contracted to go and rescue the ship and crew. Both parties believed the rescue ship was 35 miles away. But it was actually 410 miles away. Minimum payment required for 5 days work required.
-When Great Peace discovered how far the ship actually was for the vessel in distress they contracted another firm to get salvage vessel into the area.
- Part of the standard agreement with Tsauliris was a minimum 5 day hire period.
Great Peace told them not to bother. Tsauliris sued.
-Great Peace said that there had been a mistake.
Would have chosen a different company if they had had accurate information about where their ships were in the first place.
[]
Court said contract was void.
Great Peace then wanted an equitable remedy. H of L said no. If contract is not void, then it is valid à therefore no equitable solution.
Consensus mistake
Mutual Mistake
-Raffles v Wichelhaus (1864)
Two parties in Liverpool discussing sale of cotton.
125 bales of cotton sold during ex Peelis Bombay.
-By chance there were 2 ships from Bombay with the same name carrying the same cargo. But due to leave at different times.
-One party thought it was one ship the other party thought it was the other.
-When ship arrived, buyer did not get his cotton.
[]
Courts said that this was a consensus mistake. The contract was void because there had been no meeting of the minds between the two parties. Sub-contracts from the buyer’s viewpoint now ruined/ he could now be sued by those third parties.
Unilateral Mistake
Mistake as Identity
Original owner---------------------------------à‘Rogue’
contract?
Pass title?
The original owner will probably
say the contract between him and
the rogue was based on mistake.
Original owner acting in good faith
does not know that he is dealing with a
conman. Sells something in exchange
for a cheque (which turns out to be
worthless. Rogue then sells the goods to
third party and disappears.
Passes possession
Passes title
Innocent Third Party
Phillips v Brookes (1919)
Rogue impersonated someone. Gave a worthless cheque for £3000 + then sold the jewels to a pawnbroker for a few hundred before disappearing.
Both Phillips and Brookes have a claim to the property.
Phillips ------------------------------------à ‘Rogue’
(Jewellers) Title-contract?
Pearls + ring
Brookes Ltd
(pawnbroker)
(Side note: Signing a document means you have read and understood all of the above).
Blame is not an appropriate reaction.
Apparent that one or both sides were completely misunderstanding the environment they were in.
Mistake to be fundamental ‘I never intended to make that contract’.
-In exceptional circumstances, court may declare contract void.
Some contamination at the time they made the agreement.
Confusion as to whether there are two strands of law operating in this area.
-Common law + Equity
(Read judgement of Lord Philips MR in Great Peace Shipping v Tsauliris Salvage 2002) a re-established Common law as the only means of dealing with contract law.
1) Common initial mistake
Mistake as to the existence of subject matter.
Couturier v Hastie (1856)
Two commercial traders negotiating for the sale of a large assignment of corn. Both believed that the corn was on a ship heading from Salonica to London. What they didn’t know was that well before they had made their agreement, the corn had rotted away and been dumped.
-Was it possible to make a binding agreement when the subject matter did not exist.
a Court declared the contract void.
This case concerned specific goods. Mistake affects the contract, but no the consequences of the agreement (i.e. sub-contracts following from the buyer’s sale). Where there is a contrast for specific goods, and those goods perish, the contract will be void.
McRae v Commonwealth Disposals (1951)
Defendant put out to tender the right to salvage a wrecked tanker. When the plaintiff sent an expedition to the start the operation, it turned out that the tanker + the reef were not there.
à Buyer had relied on defendant’s statement. Both parties believed that there was a tanker to be salvaged. Co-ordinates and bearing did not led to the tanker.
-The Court was concerned with the way the contract had been constructed.
Not a mistake, but a failed promise.
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One trigger is reliance (when people have gone to considerable expense to carry out an agreement)
Found to be in breach of contract.
Mistake as to quantity of subject matter
Bell v Lever Bros (1932) was the leading case.
Two directors of a company. Chairman of the company had fixed term of employment for five years.
Lever Bros. wanted to get rid of the Chairman and so offered him £30,000 compensation. He agreed and left the company.
-It was later discovered that the Chairman had been mismanaging funds through various shady dealings. They would have had the grounds to sack him without compensation.
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Lev. Bros tried to sue him for the £30,000
Mistake
H of L said that the contract had been binding. They were not confused as to what they were doing. Lou. Bros. got what they wanted (the Chairman had stepped down).
Therefore no mistake had occurred.
Leaf v International Galleries
Galleries sold painting to Leaf attributed to be a Constable. Market value much higher for a genuine work. Leaf bought it and 5 years later tried to sell it to Christies. Christies evaluated it and said it was a fake.
-Leaf tried to get his money back from International Galleries.
However, Galleries had not guaranteed it was a genuine. Leaf had made a mistake as to the value of the painting.
-Then Leaf tried to turn the case into the misrepresentation claim. Leaf lost the claim for an equitable remedy because it had been 5 years.
Great Peace Shipping v Tsauliris Salvage (2002)
Ship in the Indian Ocean and in distress.
Tsauliris contracted to go and rescue the ship and crew. Both parties believed the rescue ship was 35 miles away. But it was actually 410 miles away. Minimum payment required for 5 days work required.
-When Great Peace discovered how far the ship actually was for the vessel in distress they contracted another firm to get salvage vessel into the area.
- Part of the standard agreement with Tsauliris was a minimum 5 day hire period.
Great Peace told them not to bother. Tsauliris sued.
-Great Peace said that there had been a mistake.
Would have chosen a different company if they had had accurate information about where their ships were in the first place.
[]
Court said contract was void.
Great Peace then wanted an equitable remedy. H of L said no. If contract is not void, then it is valid à therefore no equitable solution.
Consensus mistake
Mutual Mistake
-Raffles v Wichelhaus (1864)
Two parties in Liverpool discussing sale of cotton.
125 bales of cotton sold during ex Peelis Bombay.
-By chance there were 2 ships from Bombay with the same name carrying the same cargo. But due to leave at different times.
-One party thought it was one ship the other party thought it was the other.
-When ship arrived, buyer did not get his cotton.
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Courts said that this was a consensus mistake. The contract was void because there had been no meeting of the minds between the two parties. Sub-contracts from the buyer’s viewpoint now ruined/ he could now be sued by those third parties.
Unilateral Mistake
Mistake as Identity
Original owner---------------------------------à‘Rogue’
contract?
Pass title?
The original owner will probably
say the contract between him and
the rogue was based on mistake.
Original owner acting in good faith
does not know that he is dealing with a
conman. Sells something in exchange
for a cheque (which turns out to be
worthless. Rogue then sells the goods to
third party and disappears.
Passes possession
Passes title
Innocent Third Party
Phillips v Brookes (1919)
Rogue impersonated someone. Gave a worthless cheque for £3000 + then sold the jewels to a pawnbroker for a few hundred before disappearing.
Both Phillips and Brookes have a claim to the property.
Phillips ------------------------------------à ‘Rogue’
(Jewellers) Title-contract?
Pearls + ring
Brookes Ltd
(pawnbroker)
(Side note: Signing a document means you have read and understood all of the above).
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