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, 28 March 1983.
case example
Charge: Being found drunk on a public highway (Licensing Act 1872, s 12)
Case progression: Magistrates’ court – Guilty
Divisional Court – Guilty
Point of law: Physical compulsion to commit an offence
In Winzar v Chief Constable of Kent (1983) The Times, 28 March 1983, the defendant had been found drunk in a hospital and was asked to leave. He refused, whereupon the police were called. An officer forcibly removed him to his patrol car, which was parked on the highway outside, and charged him with ‘being found’ drunk there. The defendant was convicted in the magistrates’ court.
Upholding his conviction, Goff LJ pointed out that a distinction would otherwise have to be drawn between a drunk who leaves a restaurant when asked to do so and one who is forcibly ejected after refusing to leave. His Lordship provides:
Suppose a person was found as being drunk in a restaurant or a place of that kind and was asked to leave. If he was asked to leave, he would walk out of the door of the restaurant and would be in a public place or in a highway of his own volition. He would be there of his own volition because he had responded to a request. However, if a man in a restaurant made a thorough nuisance of himself, was asked to leave, objected and was ejected, in those circumstances, he would not be in a public place of his own volition because he would have been put there either by a gentleman on the door of the restaurant, or by a police officer, who might have been called to deal with the man in question. It would be nonsense if one were to say that the man who responded to the plea to leave could be said to be found drunk in a public place or in a highway, whereas the man who had been compelled to leave could not.
The focus is on the defendant ‘being’ in a particular place, as opposed to ‘doing’ a particular act. In Larsonneur, the defendant was found ‘being’ in the UK; and in Winzar, the defendant was found ‘being’ intoxicated on a highway. It is irrelevant that both defendants were compelled to be in those locations and that neither were necessarily at fault. A useful summation of this area of law is that defendants are simply in the ‘wrong place at the wrong time’. Both cases are subject to considerable criticism on the ground that to criminalise an individual for ‘being’ rather than ‘doing’ is contrary to the general principle of actus reus – ie there must be a guilty act or conduct. Lanham (‘Larsonneur Revisited’ [1976] Crim LR 276), however, finds favour with the decisions above. Particularly in relation to Larsonneur, Lanham states:
If Miss Larsonneur had been dragged kicking and screaming from France into the United Kingdom by kidnappers and the same judgment had been given by the Court of Criminal Appeal, the defence of unforeseeable compulsion would truly have been