Criminal Law

Michael Jefferson’s Criminal Law, now in its ninth edition, is a trusted, clear

and engaging explanation of the main principles and offences in criminal

law. This book lights a clear path through the subject for you, not only

explaining the law as it stands, but also considering proposals for reform so

that you can gain an understanding of the development of the law.

This new edition has been fully updated and thoroughly revised to include:

• The Corporate Manslaughter and Corporate Homicide Act 2007

• The Serious Crime Act 2007 on incitement and the Criminal Justice and

Immigration Act 2008 on self-defence

• The House of Lords’ cases of Kennedy (no. 2) on causation and Rahman

on accessories

• Heard on specific and basic intent when the defendant is intoxicated

• Bree on consent to rape where the complainant is intoxicated

• The Law Commission’s proposals for secondary participation and

conspiracy and attempt

In addition the text offers a wealth of study support that includes:

• Clearly distinguished case summaries that enable students to recognise

key cases quickly and differentiate them from surrounding commentary

• Chapter summaries that highlight the main points covered in each

chapter, cementing understanding

• Further reading lists at the end of each chapter that direct students to

subject-specific resources to enrich understanding

• Easy-to-read, two-colour text design with tabbed glossary and

pedagogical features for quick reference

• Marginal cross-references that help students understand how the material

fits together

About the author

michael jefferson is a Senior Lecturer in Law at the University of

Sheffield. He has been the Director of Teaching for the School of Law

and Director of Learning and Teaching Development for the Faculty.

He was the Chair of the Association of Law Teachers. He teaches

and supervises at all levels from first year undergraduate to PhD in

both Criminal Law and Employment Law. His publications include a

monograph on restraint of trade and confidential information as well

as books on Employment Law and articles in the leading Anglo-Welsh

law journals.

criminal law jeffe

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9 th

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www.pearson-books.com

criminal law

michael jefferson

9th edition

Cover © Getty Images

9th edition

CASE

N A V I G AT O R

POWERED BY

MICHAEL JEFFERSON

criminal law

www.mylawchamber.co.uk/jefferson

This text is supported by a mylawchamber

website which includes:

For students: regular case and legislation

updates, web links, interactive self-test

questions, practice assessment questions, an

online glossary and flashcards for key terms.

For lecturers: a testbank of multiple-choice

questions that can be used to assess students’

progress.

Visit www.pearsoned.co.uk/casenavigator

for unique online support that helps improve

case reading and analysis skills in Criminal

Law.

The LexisNexis element of Case Navigator is only

available to those who currently subscribe to

LexisNexis Butterworths services.

powered by

CASE

N A V I G AT O R

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Criminal Law

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Ninth Edition

Criminal Law

MICHAEL JEFFERSON

MA (Oxon), BCL

Senior Lecturer

University of Sheffield

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This book is dedicated to my children, Lucy and William

Pearson Education Limited

Edinburgh Gate

Harlow

Essex CM20 2JE

England

and Associated Companies throughout the world

Visit us on the World Wide Web at:

www.pearsoned.co.uk

First published 1992

Sixth edition published 2003

Seventh edition published 2006

Eighth edition published 2007

Ninth edition published 2009

© Longman Group UK Limited 1992

© Pearson Professional Limited 1995

© Financial Times Professional Ltd 1997

© Pearson Education Limited 1999, 2009

The right of Michael Jefferson to be identified as author of this work has

been asserted by him in accordance with the Copyright, Designs and Patents Act 1988.

All rights reserved. No part of this publication may be reproduced, stored in a retrieval

system, or transmitted in any form or by any means, electronic, mechanical,

photocopying, recording or otherwise, without either the prior written permission of the

publisher or a licence permitting restricted copying in the United Kingdom issued by the

Copyright Licensing Agency Ltd, Saffron House, 6–10 Kirby Street, London EC1N 8TS.

All trademarks used herein are the property of their respective owners. The use of any

trademark in this text does not vest in the author or publisher any trademark ownership rights

in such trademarks, nor does the use of such trademarks imply any affiliation with or

endorsement of this book by such owners.

Crown Copyright material is reproduced with the permission of the Controller of HMSO and

the Queen’s Printer for Scotland. Law Commission Reports are reproduced under the terms of

the Click-Use Licence.

ISBN: 978-1-4058-9904-8

British Library Cataloguing-in-Publication Data

A catalogue record for this book is available from the British Library

Library of Congress Cataloging-in-Publication Data

Jefferson, Michael, M.A.

Criminal law / Michael Jefferson. — 9th ed.

p. cm.

ISBN 978-1-4058-9904-8 (pbk.)

1. Criminal law—England. 2. Criminal law—Wales. I. Title.

KD7869.6.J44 2009

345.42—dc22 2008054876

10 9 8 7 6 5 4 3 2 1

13 12 11 10 09

Typeset in 9/12pt Stone Serif by 35

Printed and bound in Great Britain by Ashford Colour Press, Gosport

The publisher’s policy is to use paper manufactured from sustainable forests.

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Preface xiii

Guided tour xvi

Table of cases xix

Table of legislation xxxviii

Part 1 Preliminary matters 1

1 Introduction to criminal law 3

Part 2 General principles 43

2 Actus reus 45

3 Mens rea 87

4 Strict liability 134

5 Principal parties and secondary offenders 164

6 Vicarious and corporate liability 210

7 Infancy, duress, coercion, necessity, duress of circumstances 244

8 Mistake, intoxication, self-defence 292

9 Defences of mental disorder 349

10 Inchoate offences 394

Part 3 Particular offences 441

11 Murder 443

12 Manslaughter 457

13 Non-fatal offences 525

14 Rape and other sexual offences 566

15 Theft and robbery 583

16 Fraud, making off without payment 639

17 Blackmail, burglary, going equipped, handling 648

18 Criminal damage 670

Glossary 685

Index 693

v

Brief contents

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Preface xiii

Guided tour xvi

Table of cases xix

Table of legislation xxxviii

Part 1 Preliminary matters

1 Introduction to criminal law 3

The fundamental principles of criminal liability 3

Human Rights Act 1998 11

Attempted definitions of a crime 12

Differences between criminal and civil law 16

Hierarchy of the criminal courts: the appeal system 18

Precedent in criminal law 19

The interpretation of criminal statutes 20

Classification of offences by origin: can judges make new criminal laws? 23

Evidential and legal burdens of proof 25

Criminal law reform, the Law Commission and the draft Criminal Code 33

Summary 37

References 38

Further reading 39

Part 2 General principles

2 Actus reus 45

Introduction 45

Some problems 47

‘Conduct’ and ‘result’ crimes 50

Causation 51

Omission 70

Causation in omissions 79

The policy behind general non-liability for omissions 80

Reform of liability for omissions 82

Summary 83

References 85

Further reading 85

vii

Contents

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3 Mens rea 87

Introduction 87

Definitions of mens rea 88

Examples of mens rea 89

Motive 91

Intent 93

Recklessness 110

‘Knowingly’ 116

‘Wilfully’ 117

Negligence 118

Some problems of mens rea 123

Transferred malice 123

Contemporaneity 126

Summary 129

References 131

Further reading 132

4 Strict liability 134

Strict and absolute offences 135

The exceptional cases 137

Strict liability: the basics 139

Crimes which require mens rea and crimes which do not 139

How the courts apply these guidelines 146

Reasons for strict liability 151

Reasons why there should not be offences of strict liability 155

Suggestions for reform of the law relating to strict liability 156

Conclusions 159

Summary 161

References 162

Further reading 162

5 Principal parties and secondary offenders 164

Introduction 164

Definitions and terminology 167

Failure to act 171

Mens rea 173

Joint enterprise liability 179

Non-conviction of the principal offender 186

Can a ‘victim’ be an accessory? 187

Innocent agency 188

Withdrawal 193

Proposals for reform: encouraging and assisting crime 195

Assisting an offender and compounding an arrestable offence 204

Summary 205

References 207

Further reading 208

CONTENTS

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6 Vicarious and corporate liability 210

Introduction to vicarious liability 210

The exceptions 211

Vicarious liability and attempts: vicarious liability and

secondary participation 215

The rationale of vicarious liability 215

The draft Criminal Code 217

Corporate liability 218

Summary 239

References 240

Further reading 241

7 Infancy, duress, coercion, necessity, duress of

circumstances 244

Introduction to Chapters 7–9 244

Introduction to defences 244

Justification and excuse 245

Infancy 249

Duress 252

Coercion 273

Necessity and duress of circumstances 274

Summary 287

References 289

Further reading 290

8 Mistake, intoxication, self-defence 292

Mistake 292

Intoxication 304

Self-defence and the prevention of crime 331

Conclusion 343

Summary 344

References 345

Further reading 346

9 Defences of mental disorder 349

Introduction 349

Unfitness to plead 350

Insanity 354

Diminished responsibility 367

Automatism 379

Summary 389

References 391

Further reading 392

CONTENTS

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10 Inchoate offences 394

Encouraging, assisting & the former offence of incitement 394

Conspiracy 403

Attempt 421

Summary 437

References 438

Further reading 439

Part 3 Particular offences

11 Murder 443

General introduction 444

The definition of murder 444

The sentence for murder 446

Death 448

Abolition of the Year-and-a-Day Rule 448

Malice aforethought 449

Murder, manslaughter and infanticide 453

Summary 455

References 455

Further reading 456

12 Manslaughter 457

Introduction 457

Provocation 458

Conclusion 487

The Law Commission, murder in the first and second degrees

and provocation 494

Killing in pursuance of a suicide pact 495

Subjectively reckless manslaughter 496

Killing by gross negligence 497

Unlawful act or constructive manslaughter 507

Reform of manslaughter 515

Conclusion 519

Summary 520

References 521

Further reading 522

13 Non-fatal offences 525

Introduction 525

Assault 525

Threat to kill 529

Battery 529

Reform of assault and battery 532

Consent 532

CONTENTS

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Reform of consent and other defences to assault and battery 541

Assault occasioning actual bodily harm 545

Wounding and grievous bodily harm 550

Possessing anything with intent to commit an offence under the OAPA 557

Reform of ss 18, 20 and 47 557

The 1993 recommendations on assaults 558

The 1998 Home Office proposals 560

Summary 562

References 564

Further reading 564

14 Rape and other sexual offences 566

Introduction to rape 566

The road to reform 567

The basic definition of rape 573

Sexual offences other than rape 577

Summary 579

References 580

Further reading 581

15 Theft and robbery 583

Introduction to the Theft Act 1968 583

Theft 584

Robbery 631

Reform 633

Summary 634

References 637

Further reading 637

16 Fraud, making off without payment 639

Introduction 639

The Fraud Act 2006 639

Making off without payment 643

Summary 646

References 646

Further reading 646

17 Blackmail, burglary, going equipped, handling 648

Blackmail 648

Burglary 651

Going equipped 657

Handling 659

Reform 667

Summary 667

References 668

Further reading 668

CONTENTS

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18 Criminal damage 670

Introduction 670

Actus reus 672

The defence of lawful excuse (s 5) 676

Mens rea 679

Creating a dangerous situation and not dealing with it 681

Custody or control of anything with intent to destroy or damage 682

Threats to destroy or damage property 683

Summary 683

References 684

Further reading 684

Glossary 685

Index 693

CONTENTS

xii

Visit the Criminal Law, ninth edition mylawchamber site at

www.mylawchamber.co.uk/jefferson to access valuable learning material.

FOR STUDENTS

Do you want to give yourself a head start come exam time?

Companion website support

● Use the exam-style questions with answer guidance to prepare for exam success.

● Test yourself with practice multiple-choice quizzes on the main topics in criminal law.

● Check updates to major changes in the law to make sure you are ahead of the game by knowing the

latest developments.

● Live weblinks direct you to online resources where you can read more widely around the subject.

● Use the online glossary for quick reference to key terms in criminal law.

● Use the flashcards to improve your recall and comprehension of key terms in criminal law.

Worried about getting to grips with cases?

Case Navigator*

This unique online support helps you to improve your case reading and analysis skills.

● Direct deep links to the core cases in criminal law.

● Short introductions provide guidance on what you should look out for while reading the case.

● Questions help you to test your understanding of the case, and provide feedback on what you should

have grasped.

● Summaries contextualise the case and point you to further reading so that you are fully prepared

for seminars and discussions.

Also: The regularly maintained Companion Website provides the following features:

● Search tool to help locate specific items of content.

● Online help and support to assist with website usage and troubleshooting.

For more information please contact your local Pearson Education sales representative or visit

www.mylawchamber.co.uk/jefferson.

*Please note that access to Case Navigator is free with the purchase of this book, but you must register with us for access.

Full registration instructions are available on the website. The LexisNexis element of Case Navigator is only available to those who

currently subscribe to LexisNexis Butterworths online.

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Preface

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This book is written for LLB, CPE, Diploma and BA students sitting examinations on

English criminal law in their first or second year whether in England and Wales or

abroad. It is hoped that persons with little or no access to law libraries will find the text

helpful. The text is also useful for those studying for other qualifications by private study

including distance learning. Extracts of law reform reports may be of especial use to such

students. The book, which is analytical in nature, covers those areas of substantive crim￾inal law which are traditionally covered on a criminal law course, and those topics are

presented in the way in which English law subjects are normally taught. Criminal law is

fast-moving and fast-growing and there has to be some selection among topics. The focus

is on the rules of criminal law and criticism of them. English criminal law is replete with

inconsistencies, and this book reflects those issues. Students must grapple with such

difficulties, for a superficial treatment will lead to wrong law and low marks. Attention is

focused on what is sometimes called the ‘internal critique of the law’, in order that such

inconsistencies are brought out, and on those areas which present difficulties. There are

many areas of controversy such as the definition of recklessness and the width of

defences. The arrangement of topics may differ from the order in which the subjects

are taught on your course. However, because of the House of Lords decision in G (2004)

some rearrangement of topics was made in the previous edition. In particular, the con￾sideration of intention and recklessness in the context of murder and criminal damage

respectively has been abolished. This ‘unique selling point’ of the text was intended to

encourage readers to focus their minds on the results that the accused had to intend or

on to which he had to be reckless. For example, as an examiner I saw too many students

writing: ‘the mens rea for murder is intent’. Besides being incorrect (if it were true, an

intent say to touch would be malice aforethought), the statement reveals an ignorance

as to how precisely the elements of a crime are defined. Whether this experiment was

successful is for others to judge. As things are now, namely the law has returned to the

pre-Caldwell position, opportunity was taken to reorder the book. This reordering is

maintained in the current edition.

Among differences from other textbooks are the following:

(a) There is a concentration on one or two topics which have been unjustifiably

neglected in recent years in comparison with some other matters. Offences of strict

liability are instanced. Some issues which this book considers have over the past 20

years come to the fore: corporate criminal liability is one obvious instance.

(b) Emphasis is laid on suggestions for reform and on criticism both of individual deci￾sions and the ambit of offences. Criminal law needs to be evaluated and criticised.

Proposals contained in Law Commission Consultation Papers and Reports are analysed.

It is in the context particularly of reform that the European Convention on Human

Rights is looked at. Some attempt is made to uncover the underlying purposes

behind offences: if that purpose is not served by current law, reform is due.

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(c) There is some reference to Commonwealth and US cases and commentators.

(d) The student is introduced to some of the concepts of theoretical criminal law, such

as the distinction between excuses and justifications. There is a growing body of

academic criticism and this book introduces the reader to some of the major issues.

There is discussion of gender issues, particularly in the law concerned with battered

women. This is not, however, a book on criminal law theory. Readers are referred to

the further reading at the end of each chapter.

(e) I hope that values and policies underlying the rules of criminal law are brought out.

This book deals with, as stated earlier, substantive criminal law; that is, it is concerned

with the question of whether an accused is guilty of a particular offence. It does not deal

with the following, all of which are important topics in their own right.

(a) Bringing the accused to trial and procedure at trial. Such topics are generally covered in

courses of varying names such as English Legal System, Criminal Justice and Criminal

Process. Arrest may be dealt with in constitutional or public law. Similarly excluded

are the choice of charges, the workings of the police, the Crown Prosecution Ser￾vice, the Director of Public Prosecutions, and the investigation of crime, including

forensic jurisprudence.

(b) Sentence. The methods of disposal after trial are usually dealt with, if at all, in crimino￾logy or perhaps jurisprudence courses. Why people commit offences is also part of

criminology. Victimology is also not part of substantive criminal law.

(c) Evidence. The opening chapter of this book looks at the evidential and legal burdens

of proof so that readers can understand the terms when they meet them in, e.g.,

Chapter 9, which deals with the defences of insanity, diminished responsibility and

automatism. The remainder of the law of evidence is for a course on evidence.

(d) Public order. Criminal law can be seen as a way in which the state controls citizens

and how officials control state officers. Offences against public order are usually

covered by courses on public law.

All these excluded topics are interesting in their own right. For example, why was the

Commissioner of Police for the Metropolis charged with endangering the public contrary

to s 3 of the Health and Safety at Work Act 1971 rather than murder when his officers

put seven bullets into the head of the Brazilian Jean Charles de Menezes at Stockwell

underground station in south London in 2005? The remainder of a possibly very wide

course forms substantive criminal law. It is that area of law which has to be applied by

the triers of fact, the jury in the Crown Court and the justices of the peace in the magis￾trates’ courts, in order to determine whether the accused is guilty. A jury may have to

determine whether the accused is to be convicted of murder or whether he has the

defence of provocation. Substantive criminal law is concerned with what has to be shown

in order to find the accused guilty or not. How a matter of substantive criminal law is to

be proved is part of the law of evidence. A person may confess to murder, have the crime

proved against him in court, and so on. Those matters are ones of evidence. What has to

be proved is part of substantive law. If when reading substantive criminal law you find

difficulty accepting what it is said the accused thought or did, don’t worry: assume that

the prosecution has proved to the satisfaction of the triers of fact what the accused did

or thought.

PREFACE

xiv

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