the hand-drier and was scarred by the acid. The Divisional Court held that the application of force need not be direct, but may also be indirect.
A second example is that of R v Martin (1881) 8 QBD 54. In this case, the defendant, upon placing an iron bar across the exit of a theatre and turning out the lights to that stairwell exit, shouted ‘fire’, which resulted in the injury of several people. The defendant was charged with inflicting GBH contrary to s 2 of the Offences Against the Person Act 1861, which the defendant argued could not be committed by an indirect act. The Court for Crown Cases Reserved ruled that an indirect application of force was sufficient to establish liability for GBH. There was no requirement for ‘face-to-face’ contact.
2.4.2.1Distinguishing positive acts from voluntary conduct
At 2.4, it was made clear that one must distinguish positive acts from voluntary conduct. Although the two concepts go hand-in-hand, they must be considered separately to account for their position in the criminal law.
To help with this idea, consider the case of R v Savage; DPP v Parmenter [1991] 3 WLR 914 (particularly, the facts of R v Savage).
case example
Charge: Inflicting GBH (OAPA 1861, s 20)
Case progression: Crown Court –Guilty
Court of Appeal – Appeal allowed but replaced with charge of ABH
House of Lords – Conviction upheld
Point of law: Requirement of mens rea to cause ABH
In R v Savage; DPP v Parmenter [1991] 3 WLR 914, the defendant threw a glass of beer over her husband’s ex-girlfriend. The glass slipped from the defendant’s hand and resulted in cuts to the wrist of the victim when the glass smashed. The defendant professed that she never intended to throw the glass; she merely intended to humiliate the victim by throwing the beer. The defendant was convicted of inflicting GBH in the Crown Court.
On appeal, the House of Lords was faced with the question as to whether the defendant was required to intend to throw the glass in order to be liable.
Lord Ackner reasoned that:
the physical harm which the defendant intended or foresaw might result to some person need only be of a minor character for him to be guilty and it is unnecessary for the Crown to show that he intended or foresaw that his unlawful act might cause physical harm of the gravity described in s 20, ie either wounding or grievous bodily harm.
We shall return to this question in a later chapter, but, for present purposes, this case demonstrates, inter alia, that the defendant positively threw the glass at the victim but the act itself was not voluntary given that the glass, allegedly, slipped from her hand. Intention or foreseeability is not the question at this stage; rather, we are simply concerned with whether her act was voluntary. Another useful example of this can be seen in R v Malcherek; R v Steel [1981] 2 All ER 422 in relation to the switching off of a life support machine. This is a voluntary act, but is it a positive act? This is considered below.
In general, an act must be both voluntary and positive, although, as we shall see below, a positive act is not required in all circumstances and a failure to act may be sufficient.
2.5State of affairs cases (‘situational liability’)
It was stated above that, in general, a defendant can only be liable where his conduct is ‘voluntary’. It was noted, however, that there is one key exception to this rule, namely in state of affairs cases. Such cases have also been defined as ‘status offences’ and ‘cases of situational liability’ (Glazebrook, ‘Situational Liability’ in Glazebrook (ed), Reshaping the Criminal Law (Sweet & Maxwell, 1978)).
Referring back to the ‘three Cs’ listed above, state of affairs cases involve offences where the only requirement is for the existence of surrounding circumstances. Further, there is no requirement for the existence of mens rea so long as the circumstances can be proven. These offences are referred to as offences of ‘absolute liability’ (see Chapter 3 for the distinction between ‘strict’ and ‘absolute’ liability).
In absolute liability cases, the defendant is ‘being’ rather than ‘doing’ a particular act. For example, an individual is liable for drink driving contrary to s 4(2) of the Road Traffic Act 1988 where they are ‘being in charge of a motor vehicle on a road or other public place while unfit to drive through drink or drugs’ (see Richardson v DPP [2019] EWHC 428 (Admin) for a recent example of this offence). All that needs to be proven by the prosecution is that the defendant was in charge of the vehicle whilst unfit to be so. They may possess no mens rea for the offence, nor do they act voluntarily, but they are liable for an offence. Other examples may include ‘being in possession’ of a controlled substance (Misuse of Drugs Act 1971) or ‘having an offensive weapon’ in a public place (Prevention of Crime Act 1953). In this regard, it is the state of affairs that the defendant finds himself in which is criminalised.
Importantly, all situational liability offences are statutory based and can thus be readily identified. In R v Robinson-Pierre [2013] EWCA Crim 2396, Pitchford LJ in the Court of Appeal noted that
the supremacy of Parliament embraces the power to create ‘state of affairs’ offences in which no causative link between the prohibited state of affairs and the defendant need be established. The legal issue is not, in our view, whether in principle such offences can be created but whether in any particular enactment Parliament intended to create one.
Thus, any offence creating a state of affairs case must be clear as to its intention. In that case, the statutory intention was not clear in relation to offences under the Dangerous Dogs Act 1991, s 3(1) and (4).
The following cases will make this area much clearer (whether you agree with the outcome or not is a different matter).
case example
Charge: Landing in the UK without permission (Aliens Restriction (Amendment) Act 1919, s 10)
Case progression: Assize Court – Guilty
Court of Criminal Appeal – Conviction upheld
Point of law: Physical compulsion to commit an offence
In R v Larsonneur (1933) 24 Cr App R 74, the defendant, a French citizen, visited the UK for the purpose of entering into a marriage of convenience. The police prevented the marriage and she was ordered to leave and not re-enter the country. Instead of returning to France, the defendant travelled to Ireland. Whilst in Ireland, she was deported and was returned to the UK. The defendant was charged with and convicted of ‘being found in the United Kingdom’ in breach of the original order excluding her.
On appeal, the defendant claimed that her actions were involuntary. The Court of Criminal Appeal concluded that the fact that she had been returned to the UK under physical compulsion was ‘perfectly immaterial’ (per Hewart CJ). All that mattered was that she was found in the UK on the occasion in question.
Another example is the case of Winzar v Chief Constable of Kent (1983) The Times,
