AQA A Level Law (7162): Criminal Offences and Defences – Study Guide

AQA A-level Law (7162) section 3.2 Criminal law asks you to apply the offences against the person, theft, robbery and attempt, together with the capacity and necessity defences, to problem scenarios, and to evaluate the law in essays. It is examined on Paper 1, where criminal law carries 75 of the 100 marks. This guide sets out each offence and defence with its leading authorities in the order you would use them in an answer; the general elements of liability (actus reus, mens rea, causation, strict liability) have their own study guide.

Where this fits in the specification

The specification lists criminal law content in this order: the rules of criminal law, theory in criminal law, general elements of liability, fatal offences, non-fatal offences, property offences, the preliminary offence of attempt, capacity defences and necessity defences. Every offence below is built from the general elements, so revise that guide first. The criminal liability revision notes and practice questions cover the general elements; the offences and defences revision notes and practice questions cover this page.

What are the rules of criminal law?

The specification describes the rules of criminal law as the rules and principles on the general elements of liability, offences against the person, property offences and attempt. The sources are mixed. Murder and manslaughter are common law offences, defined by judges; the non-fatal offences come from the Offences Against the Person Act 1861 (and the Criminal Justice Act 1988, s39, for common assault); theft and robbery from the Theft Act 1968; attempt from the Criminal Attempts Act 1981. The prosecution must prove every element beyond reasonable doubt (Woolmington v DPP, 1935). In a problem question, state the rule, give the authority, apply it to the facts and conclude.

Theory in criminal law

The specification names four ideas.

• Harm as the basis for criminalising conduct: following J.S. Mill’s harm principle, the state should criminalise conduct that harms others. Debate centres on offences with no obvious victim and on consent cases such as R v Brown (1993).
• Autonomy, fault and individual responsibility: people are treated as rational agents who choose how to act, so liability should normally follow fault. This explains why mens rea is usually required and why defences such as insanity and duress exist.
• Principles for formulating rules: fair labelling (the name of the offence should reflect the wrong and its seriousness, which is why murder and manslaughter are separate); correspondence (the mens rea should match the actus reus, a principle broken by constructive liability such as s47 and unlawful act manslaughter); maximum certainty (people should be able to know in advance what is criminal); and no retrospective liability (no one should be punished for conduct that was not criminal when done; Article 7 ECHR).

Fatal offences against the person

Murder

Murder is the unlawful killing of a human being under the King’s peace with malice aforethought. Malice aforethought means an intention to kill (express malice) or an intention to cause grievous bodily harm (implied malice, R v Vickers, 1957). Intention may be direct or oblique: the jury may find intention where death or serious injury was a virtual certainty as a result of the defendant’s actions and the defendant appreciated that (R v Woollin, 1998, refining R v Nedrick, 1986). The sentence is mandatory life imprisonment.

Voluntary manslaughter: loss of control

A defendant who kills with malice aforethought has a partial defence, reducing murder to manslaughter, under s54 Coroners and Justice Act 2009 if:

1. the killing resulted from a loss of self-control, which need not be sudden (s54(2)), but the defence is excluded if the defendant acted in a considered desire for revenge (s54(4));
2. the loss of control had a qualifying trigger (s55): fear of serious violence from the victim, or things said or done that constituted circumstances of an extremely grave character and caused a justifiable sense of being seriously wronged, or both. Sexual infidelity on its own is disregarded (s55(6)(c)), but may be considered as part of the context (R v Clinton, 2012);
3. a person of the defendant’s sex and age, with a normal degree of tolerance and self-restraint and in the defendant’s circumstances, might have reacted in the same or a similar way (s54(1)(c)).

Once the defendant raises sufficient evidence, the prosecution must disprove the defence.

Voluntary manslaughter: diminished responsibility

Under s2 Homicide Act 1957, as amended by s52 Coroners and Justice Act 2009, the defendant must prove, on the balance of probabilities, an abnormality of mental functioning which arose from a recognised medical condition, substantially impaired the ability to understand the nature of their conduct, form a rational judgment or exercise self-control, and provides an explanation for the killing (it was a significant contributory factor). “Substantially” means important or weighty, not merely more than trivial (R v Golds, 2016). Voluntary acute intoxication is not a recognised medical condition (R v Dowds, 2012).

Involuntary manslaughter

This is an unlawful killing without malice aforethought.

Unlawful act manslaughter requires an unlawful act that is a criminal offence (R v Lamb, 1967), which is dangerous on an objective test, meaning that sober and reasonable people would recognise it carries some risk of some harm (R v Church, 1966), and which causes death. The defendant need not foresee any harm (DPP v Newbury and Jones, 1977).

Gross negligence manslaughter follows R v Adomako (1995): a duty of care owed to the victim, breach of that duty, a reasonably foreseeable serious and obvious risk of death (R v Rose, 2017), death caused by the breach, and negligence so bad that the jury considers it criminal.

Non-fatal offences against the person

Offence	Actus reus	Mens rea	Key authorities
Assault (common law; charged under s39 CJA 1988)	Causing the victim to apprehend immediate unlawful force	Intention or subjective recklessness as to that apprehension	Fagan v MPC (1969); R v Ireland (1998), silent calls; Tuberville v Savage (1669), words can negate
Battery (common law; s39 CJA 1988)	Application of unlawful force, which may be indirect	Intention or recklessness as to applying force	Collins v Wilcock (1984); Haystead v CC of Derbyshire (2000)
s47 OAPA 1861	Assault or battery occasioning actual bodily harm	Mens rea of the assault or battery only	R v Miller (1954); R v Chan-Fook (1994); T v DPP (2003); R v Roberts (1971); R v Savage (1991)
s20 OAPA 1861	Unlawfully and maliciously wounding or inflicting grievous bodily harm	Foresight of some harm, not necessarily serious	JCC v Eisenhower (1984), wound; DPP v Smith (1961); R v Bollom (2003); R v Burstow (1998); R v Mowatt (1968); R v Parmenter (1991)
s18 OAPA 1861	Unlawfully and maliciously wounding or causing grievous bodily harm	Intention to cause GBH (or to resist arrest)	R v Belfon (1976)

Actual bodily harm is any hurt or injury calculated to interfere with health or comfort (Miller); it includes recognised psychiatric injury but not mere emotions (Chan-Fook). A wound is a break in both layers of the skin (Eisenhower). Grievous bodily harm means really serious harm (DPP v Smith), judged in the light of the victim’s age and health (Bollom). s47 and s20 carry a maximum of five years; s18 carries life. Note the correspondence problem: for s47 the defendant need not foresee any harm at all.

Property offences

Theft (s1 Theft Act 1968)

A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it. Each element is defined in ss2 to 6:

• Appropriation (s3) is any assumption of the rights of an owner (R v Morris, 1983), and can occur even with the owner’s consent (R v Gomez, 1993) or by accepting a valid gift (R v Hinks, 2000).
• Property (s4) includes money, real and personal property and things in action; confidential information is not property (Oxford v Moss, 1979).
• Belonging to another (s5) covers anyone with possession or control, even against the owner (R v Turner (No 2), 1971); property received for a particular purpose (s5(3), Davidge v Bunnett, 1984); and property received by mistake (s5(4)).
• Dishonesty (s2): a person is not dishonest if he believes he has a legal right to the property, believes the owner would consent, or believes the owner cannot be found by taking reasonable steps. Otherwise the test is Ivey v Genting Casinos (2017), confirmed for criminal cases in R v Barton and Booth (2020): what was the defendant’s actual belief as to the facts, and was the conduct dishonest by the standards of ordinary decent people?
• Intention to permanently deprive (s6) includes treating the property as one’s own to dispose of regardless of the owner’s rights; borrowing counts only if the goodness or virtue has gone from the item (R v Lloyd, 1985).

Robbery (s8 Theft Act 1968)

Robbery is stealing where, immediately before or at the time of doing so, and in order to do so, the defendant uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force. There must be a complete theft, so an honest belief in a legal right to the property defeats robbery (R v Robinson, 1977). “Force” is an ordinary word for the jury and can be slight (R v Dawson and James, 1976), including force on property held by the victim (R v Clouden, 1987). Appropriation can be a continuing act, so force used while making off may still count (R v Hale, 1978). The maximum sentence is life.

The preliminary offence: attempt

Under s1(1) Criminal Attempts Act 1981, a person is guilty of attempt if, with intent to commit an offence, he does an act which is more than merely preparatory to its commission. The test is whether the defendant has “embarked on the crime proper” (R v Gullefer, 1990; R v Jones, 1990). Lurking near a post office was not enough (R v Campbell, 1991), nor was being in school toilets with a knife and tape (R v Geddes, 1996); examining a padlock on a barn door was (R v Tosti, 1997). The mens rea is intention to commit the full offence: attempted murder needs an intention to kill, not merely to cause GBH (R v Whybrow, 1951). Impossibility is no defence (s1(2)); the House of Lords used the Practice Statement in R v Shivpuri (1986) to overrule Anderton v Ryan (1985) on this point.

Capacity defences

Insanity

The M’Naghten Rules (1843) require a defect of reason, caused by a disease of the mind, so that the defendant did not know the nature and quality of the act or did not know it was wrong. Mere absent-mindedness is not a defect of reason (R v Clarke, 1972). A disease of the mind is a legal concept covering any internal cause affecting mental functioning: arteriosclerosis (R v Kemp, 1957), epilepsy (R v Sullivan, 1984), high blood sugar from untreated diabetes (R v Hennessy, 1989) and sleepwalking (R v Burgess, 1991). “Wrong” means legally wrong (R v Windle, 1952; R v Johnson, 2007). The verdict is not guilty by reason of insanity, after which the judge may make a hospital order, a supervision order or an absolute discharge.

Automatism

Non-insane automatism is an involuntary act caused by an external factor, such as a blow to the head or a reflex action (Hill v Baxter, 1958), and requires a total loss of voluntary control (A-G’s Reference (No 2 of 1992), 1993). Low blood sugar caused by taking insulin is external (R v Quick, 1973). If it succeeds the defendant is acquitted. Self-induced automatism is no defence to basic intent offences where the defendant was reckless in bringing it about (R v Bailey, 1983), but may succeed where the defendant was not reckless, as with an unexpected reaction to a sedative (R v Hardie, 1984).

Intoxication

Voluntary intoxication can be used to show the defendant lacked the mens rea for a specific intent offence such as murder, s18 or theft (DPP v Beard, 1920), but is no defence to a basic intent offence such as manslaughter, s20, s47 or assault, because becoming intoxicated is itself reckless (DPP v Majewski, 1977). A drunken intent is still an intent (A-G for Northern Ireland v Gallagher, 1963). Involuntary intoxication, such as a spiked drink, is a defence only if the defendant did not form the mens rea (R v Kingston, 1994). An intoxicated mistake about the need to use force cannot support self-defence (R v O’Grady, 1987; R v Hatton, 2005).

Necessity defences

Self-defence and prevention of crime

The defence exists at common law and, for prevention of crime, under s3 Criminal Law Act 1967; s76 Criminal Justice and Immigration Act 2008 sets out how both are applied. First, was force necessary? This is judged on the facts as the defendant honestly believed them, even if the belief was unreasonable (R v Williams (Gladstone), 1984; Beckford v R, 1988), unless the mistake was caused by voluntary intoxication (s76(5)). Second, was the force reasonable in the circumstances as the defendant believed them to be? A person under attack cannot weigh the exact force needed (Palmer v R, 1971; s76(7)). Force that is disproportionate is not reasonable; in householder cases only grossly disproportionate force is excluded (s76(5A)). There is no duty to retreat, though the chance to do so is a factor (s76(6A); R v Bird, 1985), and a pre-emptive strike can be justified (A-G’s Reference (No 2 of 1983)). The defence is all or nothing: excessive force in a killing leaves a murder conviction (R v Clegg, 1995; R v Martin (Anthony), 2001).

Duress by threats

The defendant must have been compelled to act by a threat of death or serious injury to himself or someone for whom he reasonably feels responsible (R v Hasan, 2005). The two-stage test from R v Graham (1982), approved in R v Howe (1987), asks whether the defendant was compelled because he reasonably believed the threat would be carried out, and whether a sober person of reasonable firmness sharing his relevant characteristics would have responded the same way (R v Bowen, 1996). The threat must be of immediate or almost immediate harm, with no evasive action reasonably available, and must be directed at committing the particular offence (R v Cole, 1994). The defence is unavailable for murder (Howe) and attempted murder (R v Gotts, 1992), and is lost if the defendant voluntarily associated with criminals and ought reasonably to have foreseen being subjected to compulsion by threats of violence (Hasan).

Duress of circumstances

The same test applies where the threat comes from the circumstances rather than a person’s demand: driving to escape a threatening gang (R v Willer, 1986; R v Conway, 1989) or driving while disqualified because a spouse threatened suicide (R v Martin (Colin), 1989). It is available for all offences except murder and attempted murder (R v Pommell, 1995).

Worked example

Facts: Kai, after drinking heavily, punches Lena, who falls, hits her head and dies. Kai says he did not mean to hurt her badly.

1. Murder? Did Kai intend to kill or cause GBH? A single punch with no foreseen virtual certainty of serious injury suggests no malice aforethought (Vickers, Woollin). His intoxication can also be used to argue he lacked specific intent (Beard).
2. Unlawful act manslaughter. A battery is a criminal unlawful act (Lamb); it is objectively dangerous because reasonable people would see some risk of some harm (Church); it caused death. No foresight of harm is needed (Newbury and Jones).
3. Intoxication. Manslaughter is a basic intent offence, so voluntary intoxication is no defence (Majewski).
4. Conclusion. Kai is likely to be guilty of unlawful act manslaughter rather than murder.

Common mistakes

• Saying malice aforethought requires an intention to kill, forgetting intention to cause GBH.
• Treating loss of control as needing a sudden loss, which the 2009 Act abolished.
• Applying foresight of serious harm for s20, when foresight of some harm is enough (Mowatt).
• Forgetting that robbery fails if there is no completed theft.
• Calling diabetes cases automatism without asking whether the cause was internal (insanity) or external (automatism).
• Offering duress as a defence to murder.

Frequently asked questions

What is the difference between murder and manslaughter? Murder requires malice aforethought, meaning an intention to kill or cause grievous bodily harm. Manslaughter is either voluntary, where a murder is reduced by loss of control or diminished responsibility, or involuntary, where there is no malice aforethought but liability arises through an unlawful and dangerous act or gross negligence.

What is the test for an attempt? Under s1(1) Criminal Attempts Act 1981 the defendant must, with intent to commit the offence, do an act more than merely preparatory to it. The courts ask whether the defendant had embarked on the crime proper (Gullefer).

Which offences are specific intent for intoxication purposes? Murder, s18 OAPA 1861, theft and robbery are specific intent offences, so voluntary intoxication may show the mens rea was not formed. Manslaughter, s20, s47, assault and battery are basic intent offences, where it is no defence (Majewski).

Is duress a defence to murder? No. The House of Lords held in R v Howe (1987) that duress is not available to murder, and R v Gotts (1992) extended this to attempted murder.

Check your understanding

1. What two intentions amount to malice aforethought? An intention to kill or an intention to cause grievous bodily harm.
2. Which section of the Coroners and Justice Act 2009 sets out the qualifying triggers? Section 55.
3. What is the mens rea of s20? Intention or recklessness as to causing some harm, not necessarily serious (Mowatt).
4. Can a person appropriate property with the owner’s consent? Yes (Gomez).
5. Why was the defendant in Hennessy treated as insane? His high blood sugar came from diabetes, an internal cause, so it was a disease of the mind.
6. Name the four principles for formulating criminal rules in the specification. Fair labelling, correspondence, maximum certainty and no retrospective liability.

Official syllabus

AQA A-level Law (7162) specification, version 1.0, section 3.2 Criminal law — aqa.org.uk.