The Gazette 1976

SEP T EM BER 1976

GAZETTE

police officers on the ground that the appellant had taken a surfeit of drugs and alcohol, because alcoholism was not a disease of the mind wh'ch required proof of intent. In the matter of drunkenness the editor makes a valuable comment when he considers R. v. Sheehan and Moore, (1975) 2 All E.R. 960, as a more correct statement of the law than certain other recently decided cases, notably Lipmans case, (1970) 53 Cr. App. R. 600. In Sheehan s case the appellants, while the worse for drink, threw lighted petrol over the deceased and killed him; this was held to be manslaughter. In Lip- man, the appellant was guilty of manslaughter as a re- sult of an unlawful and dangerous act, as he had so many drugs taken at the time that he did not know what he was doing. Where offences against property were concerned practitioners did not consult Archbold beyond the 36th edition but now this has changed and the new book will be a necessary complement to the 1976 legislation which so substantially altered the Larceny Act which had served the community so well for so long and which will undoubtedly continue to do so. Similar facts and corroboration are two recent legal watersheds which are more than adequately dealt with in the new edit- ion. The case D.P.P. v. Boardman (1974) 3 All E. R 887, is very resourceful on the similar facts concept and in particular Lord Wilberforce's comments are well worth reading as also are Lord Hailsham's remarks in D.P.P. v. Kilbourne, (1973) A.C. 729. Indeed the latter case is very pertinent to corroboration and Lord Reid's remarks on the rule that one accomplice cannot cor- roborate another are interesting—he does not see the rule as absolute and would be selective as to category to which it would apply. The first Supplement gives details of identification and the Devlin Report. It is noteworthy that Archbold's pedigree goes back to 1822, older than even the Vagrancy Act. This is an achievement and the necessary ingredient has been the element of continuity in the work. Much of the recent continuity came from T.R.F. Butler who has been on the editors panel, with only one exception, since 1931 but whose unhappy demise occurred prior to the pub- lication of this volume. He has left a fitting memorial in the book and one can trust with confidence that Archbold will continue its high standard for many dec- ades yet. BRENDAN GARVAN.

Book Review Archbold, J. R., Pleading, Evidence and Practice in Criminal Cases. 39th edition; edited by Stephen Mitchell, John Huxley and T. Fitzwalter Butler, cxcviii, 1823p. plus 100 blank pages for notes. 26 cm. London: Sweet & Maxwell, 1976. Cloth ed. £30.00. The thirty-ninth edition of Archbold is hot off the presses and comes complete with one supplement. Criminal law is rapidly expanding at the moment and this is evidenced not alone by the editor's note of des- pair in the Preface but also by the increase in the size as well as in the pages of the book. There are more than 200 pages than before, the length and breadth of each page is significantly increased, and unusually, a comprehensive table of contents is now prefaced to some of the more detailed chapters. A new chapter appears on the mental element in crime. Recent cases have brought the concept of the guilty mind to the surface for re-examination and there seems to be a discrepancy between the old decision R v. Tolson (1889) 23 Q.B.D. and the mens rea definition given in such text books as Smith and Hogan. In D.P.P. v. Morgan, (1975) 2 All E. R. 347, a famous rape trial, the trial Judge had insisted that it should have been reasonable for the accused to believe the woman was consenting before the defendant could be acquitted. On appeal, Lords Cross, Hailsham and Frater he'd that this was wrong and Lords Simon and Edmund-Davies held it was right. Lord Cross agreed with the minority that the Tolson rule still applied. The inconsistency remains however, and the editor is doubt- ful of the majority decision. The case Hyam v. D P.P., (1975) A.C. 55, focuses on the matter of intent. It will be recalled that the appel- lant set fire to the house of her lover's new mistress; two children were killed in the fire and she was con- victed of murdering them. Here the editor considers the majority view, as expressed by Lord Diplock, to have been that foresight of the probable consequence of a voluntary act constitutes an intent to cause those con- sequences, whether they are desired or not. The con- clusion reached is that at Common Law and, as a general rule under a statutory provision, a man intends the consequences of his voluntary act (i) when he de- sires it to happen whether or not he forsees it will probably happen, and (ii) when he foresees it will prob- ably happen whether he desires it or not. Still on the mental element there are many good paragraphs under insanity and automatism. In R. v. Quick, (1973) Q.B.D. 910, where a defence of automat- ism from an inbalance of insulin was raised the Judge ruled that this amounted to a defence of insanity. On appeal it was held that the alternative of automatism should have been left to the jury, unlike the Northern Ireland case of Bratty, (1963) A.C. 386, where auto- matism was disallowed. This case also makes clear that the fundamental underlying concept is a malfunct- ioning of the mind caused by disease — thus a transit- ory change of mind induced e.g. by alcohol or even violence would not qualify. This distinction between untrained mind as against diseased mind is commented on in the earlier case of R. v. Kemp, (1957) 1 Q.B.D. 399. No developments are noted under irresistible im- pu'se—it would seem this defence would not yet be as readdy accepted as it was in Ireland in People v. Hayes, noted in Irish Jurist (N.S. Vol. 3 (1968), p. 61. Both the book and the first supplement just missed the case of D.P.P. v. Majewski (1976) 2 All E. R. 142, where the House of Lords dismissed the appeal of assaulting

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