By Anthony Edwards, TV Edwards, London


Doli incapax

In CPS v P 2007 EWHC 946 (Admin), the court considered whether the concept of doli incapax had been fully abolished, as most criminal lawyers had believed. The provisions of section 34 of the Crime & Disorder Act 1998 only provide that the presumption of doli incapax is abolished and the court considered that the defence itself may still be available where children, for instance because of learning difficulties, do not know the difference between right and wrong.



The fact that there is no presumption in favour of doli incapax does affect the position in the police station. Previously, young clients might have been advised to make no comment because the police would then have to prove that the children knew their conduct was seriously wrong. Today there is no such presumption and the issue may therefore be best raised at the police station stage. For those with learning difficulties it means there are now three possible approaches to criminal proceedings. There will be issues around fitness to plead, which may result in orders under section 37(3) of the Mental Health Act 1983. In the alternative, there may be arguments as to whether a fair trial is possible given the disabilities involved. Finally, there may be the full defence of doli incapax.



Violent and sexual offences

The provisions of section 5(1) of the Domestic Violence Crime & Victims Act 2004 are extremely complex. They provide a person (D) is guilty of an offence if:



(a) a child or vulnerable adult (V) dies as a result of the unlawful act of a person who (i) was a member of the same household as V, and (ii) had frequent contact with him;



(b) D was such a person at the time of that act;



(c) At that time there was a significant risk of serious physical harm being caused to V by the unlawful act of such a person; and



(d) Either D was the person whose act caused V's death or (i) D was, or ought to have been, aware of the risk mentioned in paragraph (c), (ii) D failed to take such steps as he could reasonably have been expected to take to protect V from the risk, (iii) the act occurred in circumstances of the kind that D foresaw or ought to have foreseen.



In R v Stephens & Mujuru 2008 Crim LR 54, the court held that in this context the word 'significant' was intended to bear its ordinary meaning. The decision is one of fact for the jury. The judge in this case was wrong to suggest that it meant 'more than minimal'. It is worthy of note that, in this case, one of the defendants was first interviewed as a witness without a caution being given. In that statement she admitted that the co-defendant had used violence in the past and thus brought herself within the provision.



In robbery cases it is the intention of the suspect, not the feelings of the complainant (who may not actually be in fear), that decides whether the offence of robbery is made out. (B v DPP 2007, The Times, 27 March.)



In crimes of malice or subjective recklessness under section 20 of the Offences Against the Persons Act 1861 there is no requirement that the risk be obvious and significant. The individual defendant must see the risk and unreasonably take it. He must intend to cause some harm or personally foresee the risk that his action might cause some harm and then go on unreasonably to take that risk. In R v Brady 2007 Crim LR 565, the defendant had sat on a low balcony after drinking and fell onto the complainant, causing catastrophic injury.



If through drink a complainant has temporarily lost her capacity to choose whether to have intercourse or not then there could be no consent in relation to the crime of rape. However, where the complainant had voluntarily drunk much alcohol but remained capable of choosing whether or not to have intercourse and agreed to do so there was no offence. The consent was not dependent on whether alcohol removed the complainant's inhibitions or whether there was later regret, or a poor recollection of events, or the conduct viewed later was irresponsible. (R v Bree 2007 Crim LR 900)



A failure to disclose HIV status does not vitiate consent to intercourse on the part of the complainant and thus make the offence one of rape, although the defendant would have no defence to an allegation of causing serious harm should the infection pass. (R v B 2007 1 CR APP R 29)



The irrebuttable presumptions in section 76 of the Sexual Offences Act 2003 that consent was absent and the defendant knew that consent was absent are limited to the relevant acts involved in the particular offence. The provisions apply where there is a deception as to the nature or purpose of the act, for instance a medical procedure or experiment requiring masturbation. However, they do not apply where the complainant had been deceived into the act, for example by a deception as to a person's qualifications or intention to pay or their fantasies or suicidal intentions. (R v Jheeta 2008 Crim LR 144)



The offence under section 8 of the Sexual Offences Act 2003 of causing or inciting a child under 13 to engage in sexual activity may be committed by making a proposal generally; here in graffiti on railway trains. (R v Jones 2007 Crim LR 979)



The offence of outraging public decency which can now be tried either way required that first the act was of such a lewd, obscene or disgusting nature as to outrage public decency, and secondly that the act took place in public or was capable of being seen by two or more persons. In R v Hamilton 2008 Crim LR 225, the Court of Appeal held there was a case to answer where a video camera in a public place was positioned to film underneath women's skirts even though the victims were wholly unaware that this was taking place.



Benefit fraud

There can be no successful prosecution for failing to provide details of a change of circumstances under section 111A of the Social Security Administration Act 1992, where that change did not reduce the amount of benefit to which the defendant would overall have been entitled. (R v Passmore 2007, The Times, 28 June)



Closure orders

For a closure order to be obtained under this legislation the applicant must show:



(1) The premises were used in connection with Class A drugs;



(2) The use of the premises was associated with disorder; and



(3) The order was necessary to prevent a nuisance.



Chief Constable of Cumbria v Wright 2007 1 WLR 1409 held that the disorder must be connected with drugs use, although it could be an indirect connection. It confirmed that there was no limit on the use of historic evidence, but necessity must still exist as to the present circumstances before an order could be made.



Dangerous driving

In considering whether the driving was dangerous on 'this' occasion the court is entitled to consider the driver's personal driving skills; in the same way as it could consider a consumption of alcohol or the defendant's knowledge about a risk of hypoglycaemic attack. The test in section 2A(1) of the Road Traffic Act 1988 was objective but section 2A (3) requires that when applying the objective test the court have regard to factors within the knowledge of the defendant. (Milton v CPS 2007 EWHC 532 Admin)