AQA A-Level Criminal Law

Transcription

1 AQA A-Level Criminal Law Answers to self-test questions and tasks Chapter 1 The Nature of Law Task 1 I hope you read the text above this task, if so it should have been easy. Whether the decision achieved justice is a matter of opinion. Some would say it was not just because they all consented. Others might argue that violence is wrong even if with consent, so the decision was just. As regards a legal opinion of justice, under the natural law view of justice the decision was correct as the behaviour was immoral. A positivist would agree with the decision being based on the rule not to cause intentional serious harm. The interests which were balanced were those of the people involved (to do what they want in private without the law interfering) with society itself (to be protected from acts of violence wherever they occur). Fault played a role in that the serious harm that was caused was intentional. This is a high level of fault so the D s were punished. Morality played a role because one judge said that society itself was harmed by such behaviour, even if it happened in private. Therefore the law enforced morality by making the act illegal. Task 2 Lord Bingham meant that no-one should be above the law, echoing Dr Fuller s comments centuries earlier. The second part of this is a matter of opinion. Most would probably think that it should be part of the rule of because it emphasises the fact that the rule of law should include equality. You could of course point out that it does not always apply in practice, as not everyone has equal access to the funds needed to obtain the law s protection in court. 1. Two sources of law are statute law and common law (also European law and Human Rights law) 2. Three differences between civil and criminal law are any of those given in the two lists under the headings criminal and civil law 3. The core principle of the rule of law is that no-one is above the law, including those who make it 4. The term for guilty conduct is actus reus 5. The term for a guilty mind is mens rea Chapter 2 Actus Reus Task 3 It could be argued in Miller that the dropping of the cigarette was a continuing act so that when he did nothing about the fire he had both actus reus and mens rea. The continuing act theory is actually the principle that the CA used, but the HL preferred the principle that if you create a dangerous situation you have a duty to do something about it, so can be liable for an omission.

2 Tasks 4 & 5 There is no guide for task 4, and the answer for task 5 is in the book. Task 6 1 Page Your diagram should include a case such as Leicester v Pearson or Winzar for voluntary act. Any of the omissions cases such as Pittwood; White for the but for test and Cheshire and Roberts for legal causation 1 The 3 Cs which may be included in the actus reus of a crime are conduct circumstances consequences 2 The court found liability on the basis that it was a continuing act. 3 Two examples of when an omission can result in criminal liability are when there is a contractual duty when D created a dangerous situation 4 The thin skull rule is that D takes the victim as he or she finds them. 5 The quote at the beginning of the Chapter came from Pittwood. Chapter 3 Mens Rea Task 7 There is no guide for Task 7 1 The quote at the beginning of this Chapter came from Woollin. 2 The two types of intent are direct and indirect. 3 The Nedrick test for oblique intent is was death or serious bodily harm a virtual certainty? did the defendant appreciate that such was the case? 4 Recklessness is now a subjective test as decided in Gemmell & Richards. 5 The principle in Latimer is that malice (mens rea) can be transferred. Chapter 4 Strict liability Task 8 You may have chosen other examples but here is one for each side. It is unfair to convict D of a criminal offence without proving mens rea It is unfair as there is no fault element, which should be a requirement of any offence which can result in a criminal conviction and maybe a prison sentence. That is why the HL in Sweet v Parsley refused to accept that the offence was one of strict liability and held this could only be the case if the Act specifically stated that it was. It makes people more careful

3 2 Page It is fair to convict without proof of fault in offences where there is a risk to public health because if people know they may be convicted they will be extra careful, not only e.g., in instructing their staff properly but in checking that their instructions are carried out. An example where this seems fair is Meah v Roberts. However the case of Shah seems less fair as there was not a risk to health. The other part of the task was aimed at getting you to think about the justice of imposing strict liability. There is no guide as it is purely a matter of opinion. Task 9 Strict liability where there is no need to prove mens rea Absolute liability where there is no need to prove actus reus or mens rea Statutory nature coming from an Act of Parliament Social utility something that benefits society Public policy rules that protect the public as a whole Regulatory offences ones that regulate about how people should behave regarding issues like pollution or health and safety and which are not truly criminal in nature 1 Three areas of social concern where strict liability applies are pollution, the sale of food and public health. 2 Sweet v Parsley established that there is a presumption of mens rea in most criminal offences where the Act is silent on the matter. 3 The guidelines set out for imposing strict liability where the Act is silent were set out in Gammon (Hong Kong) Ltd v AG of HK For reasons for and against imposing strict liability, choose 3 from the list under Arguments for and 3 from the list under Arguments against. Chapter 5 Assault and Battery Task 10 Applying the rules on intent and recklessness to battery, the prosecution must prove the following for direct intent, that it was D s aim or purpose to apply unlawful force. for indirect intent, that the application of force was a virtual certainty and D appreciated this. for recklessness, that D recognises a risk that unlawful force will be applied and goes ahead and takes that risk. 1 The current definition of assault is to cause someone to apprehend immediate and unlawful personal violence. 2 Words alone can constitute an assault as shown in Wilson. 3 The mens rea for assault is intention or recklessness (to cause someone to apprehend immediate and unlawful personal violence). 4 A battery does not have to be hostile as seen in Thomas. 5 Consent and self-defence may make a battery lawful.

4 Chapter 6 ABH Task 11 3 Page In Roberts, the action by the victim did not break the chain of causation because it was foreseeable. The type of action which might do so is something daft, as was decided by the CA in Williams & Davis. 1 The quote at the beginning of this Chapter came from Ireland. 2 The three parts to the actus reus are An assault (conduct) Occasioning (causation) Actual bodily harm (consequence) 3 Mens rea is needed for the assault, i.e. the conduct. 4 According to Roberts, something unforeseeable or daft could break the chain of causation. 5 The HL finally confirmed that the principle in Roberts was correct in Savage and Parmenter. Chapter 7 GBH Task 12 The most appropriate offence is wounding under s 20 OAPA. Wounding requires both layers of the skin to be broken Eisenhower. suffered a deep cut. This is the case as Steve Causation needs to be considered. It can be said that but for Mick s act in throwing the brick Steve would not have fallen so would not have suffered harm, so factual causation is proved White. Legal causation is based on having a chain of causation between the act and the result. Mick s act in throwing the brick may not have directly caused the harm, but Steve falling off his bike and there being a sharp stone on a country lane are both foreseeable so will not break the chain of causation Roberts. Recklessness as regards some harm is enough. There is no need to intend or be reckless as to serious harm for s 20 Mowatt. By throwing a brick at someone Mick can be said to have at least been reckless as to causing some harm. There is a possibility of s 18 if Mick intended serious harm (Parmenter). However, s 20 seems the most appropriate and will be easier to prove. NB: It will not be s 47 ABH as it is a deep cut needing several stitches so there is no need to discuss this. For s 18 and s 20 there is no need for a prior assault or battery so leave these out too. 1 Wound has been interpreted as any puncture of the skin. 2 Grievous bodily harm has been interpreted as serious harm. 3 The cases which support the answers to the above two questions are C v Eisenhower and Saunders. 4 The difference in the mens rea between s 20 and s 18 is that for s 20 it is intent or subjective recklessness as to some harm and for s 18, it is intent (only) as to serious harm. 5 The maximum sentences for s 20 and s 18 respectively are 5 years and life.

5 Summary and evaluation of the non-fatal offences Task 13 The principles match the cases as follows Principle Case 4 Page Silence may be enough for an assault Ireland 1996 Grievous means really serious harm Smith1961 Words may be enough for an assault Wilson 1955 A battery can be via another person Haystead 2000 Actual bodily harm is anything that causes personal discomfort Miller 1954 Mere emotions such as fear, distress or panic are not enough for actual bodily harm Wound means an open cut Chan-Fook 1994 C v Eisenhower1984 Task 14 examination practice Answers for Year 1 exam practice Multiple choice questions 1 to mark each Question 1 Question 2 Question 3 Question 4 Question 5 Question 6 Question 7 Question 8 Question 9 Question 10 Question 11 B C D D A B C C D A A duty solicitor provides advice and can help with a bail application and someone s first appearance in the magistrates court. 1 mark A person is entitled to a duty solicitor if in custody and this is free. 1 mark Plus one mark for any of the following points The solicitor may attend the police station to give advice or it may be done on the telephone. There is no means or merits test. A person charged may be entitled to a duty solicitor for representation too but this must be applied for.

6 5 Page The duty solicitor can help with an application for a representation order for legal aid to cover any further representation in court. Question 12 Explanation: An omission can form part of the actus reus of a crime where there is a duty to act and that duty is not carried out. 1 mark Application: Rob is employed as a lifeguard so has a contractual duty to act Pittwood. 1 mark Application: Rob did not notice the child and it is part of his job to watch out for people at the pool so he has not fulfilled his duty Pittwood. 1 mark Question 13 The offence under s 47 is assault occasioning actual bodily harm (ABH). The assault would cover either an assault or battery, here jumping out and shouting abuse while holding a knife is likely to put Mike in fear of immediate harm as required by the definition of assault in Ireland. Occasioning means causing, so the assault must cause the harm. Causation in fact means but for Rafael s actions would Mike have been harmed? The answer is no, so Rafael factually caused the harm, unlike the case of White. Causation in law is based on whether Rafael made a significant contribution to the harm (as in Cheshire) and whether there was an unbroken link between his acts and the harm, called a chain of causation. If so, he will legally have caused it. Rafael has made a significant contribution to the harm, so the question is whether Mike s own actions broke this chain. The case is similar to Roberts where a girl jumped out of a moving car to escape an assault and the court held that a foreseeable act by the victim would not break the chain. Here it is foreseeable that Mike would run away from someone waving a knife, so the chain is not broken. The harm is cuts and bruises and this may be enough for actual bodily harm as it is more than trivial harm, as required by Chan-Fook. In DPP v Ross Smith even cutting someone s hair sufficed so Rafael has the actus reus of ABH. The final issue is whether Rafael has mens rea. This is only needed for the assault not the harm as seen in Roberts and confirmed in Savage. Here Rafael clearly intended to scare Mike as he wanted to scare him and as the mens rea for ABH includes recklessness it would be easy to prove. The prosecution would only need to show that Rafael saw the risk of scaring Mike and carried on with his actions. In conclusion, Rafael is liable for actual bodily harm under s marks Mitigating and aggravating factors are things that the court will take into account when deciding on an appropriate sentence. Mitigating factors are ones that can reduce a sentence and aggravating factors are ones that may increase it. The Sentencing Council (SC) provides a set of guidelines detailing the factors to be taken into account when sentencing. These are comprehensive but the SC still requires the court to take account of other circumstances as appropriate. Some factors relate specifically to a particular offence and others are more general and apply to all cases. For the nonfatal offences against the person whether the offence was pre-meditated and whether a weapon was used are particularly important aggravating factors. Both of these apply to Rafael as he was lying in wait and had a knife, so if Rafael is convicted these will affect his sentence in that it could make the judge consider a harsher sentence, maybe even a custodial one. As for general aggravating factors these include previous convictions, whether the offence was committed while on bail and whether the offence was racially or religiously aggravated. There is no evidence concerning bail or previous convictions, but Rafael was shouting racial abuse so this factor may apply too. There seem to be no mitigating factors here, such as remorse, co-operation with the authorities or an early guilty plea. In fact, one mitigating factor related specifically to the non-fatal offences against the person is lack of pre-meditation and here Rafael s actions were premeditated, so overall the sentence may be quite harsh. 6 marks

7 Question 14 6 Page You are directed to s 20 so only discuss this offence. The actus reus of s 20 makes it an offence to unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, with or without a weapon. In DPP v Smith, grievous was interpreted by the HL to mean really serious. In Saunders, the CA held that the word really was unnecessary. Thus grievous bodily harm includes any serious harm. It would seem that bruises and swelling would not be enough for this offence and s 47, occasioning actual bodily harm, would be more appropriate. However, note should be taken of Bollom In that case a baby suffered bruising to several parts of her body and her mother s partner was charged with GBH. Although the CA substituted the conviction for one of ABH, it was made clear that bruising could amount to GBH if the victim was a young child. This means the age of the victim may be relevant in deciding on which offence, so that s 20 may be the appropriate charge in Kylie s case. As for mens rea, this is intent or subjective (Cunningham) recklessness. The important point is that it is not intent or subjective recklessness to cause serious harm, only some harm. This was confirmed by the CA in Mowatt and later approved by the HL in Savage & Parmenter. Kylie must have recognised the risk of some harm when slapping Mal across the backs of her legs and she went ahead anyway, so was reckless. I would advise Kylie that she may be liable under s 20 so it may be advisable to plead guilty as an early guilty plea will be a mitigating factor for her in court. She could plead guilty to s 47 and hope the prosecution will accept her plea and reduce the charge, which is quite possible. 6 marks If Kylie is charged under s 20 the trial could be in either the magistrates or Crown Court as it is an either-way offence. If the magistrate selects the Crown Court the trial will be heard by a jury, alternatively if the magistrate elects to hear the case Kylie can ask for the case to be heard in the Crown Court. If she has a jury hearing her case there are both advantages and disadvantages to this. The main advantage is that with twelve people the decision is less likely to be biased. This could be a bonus for Kylie if there is a reason a magistrate may be biased against her, but this is not indicated by the facts. Another advantage is that juries are seen as impartial and can make a decision based on fact and good sense, even ignoring the judge s advice if it seems to go against common sense (even if legally correct). Juries are representative of ordinary people and are less likely to be rule bound, so a jury decision may be seen to be fairer. However, as juries don t have to follow guidelines their decisions can be unpredictable, which is a disadvantage. There are several other disadvantages with having trial by jury. Sometimes the law is hard to understand and clever lawyers or dominant fellow jurors can influence jurors into making a particular decision. On the other hand, it can be said that juries are an antidote to excessive legal technicalities because lawyers have to restrict their use of jargon when addressing ordinary people. A related problem is that the Offences against the Person Act is very old and the judge will have to explain a lot of the terms e.g., what the words grievous and malicious mean. Media coverage can also influence jurors even though there are restrictions on what can be printed. This could be relevant if e.g., Kylie has a background of violence which is reported in a local paper and seen by the members of the jury. Local prejudice can be a problem in particularly emotive cases and as the case involves a young child the jury may feel she should be punished. Overall in Kylie s case, particularly as she hit a young child, she may be better having the case heard by a magistrate and hope that as the harm was not serious she won t be found guilty under s 20, though of course she may be guilty of actual bodily harm and this carries the same maximum sentence. 6 marks

8 Question 15 7 Page Frank Here there is no need to discuss assault, battery or ABH. The words several stitches show the harm is serious and there is a wound. The two offences you should discuss are GBH and/or wounding under s 20 and s 18. Wounding is most appropriate and a charge under either section is possible as the actus reus is the same. Both require unlawful and malicious wounding. Explain harm must be serious (Saunders), and several stitches indicates that it is, and a cut needing stitches will be a wound as described in Eisenhower, because both layers of the skin must have been cut to need stitches. Then discuss the rules on mens rea. This is what will decide the charge. As Frank pulled out a knife, it would indicate that he had sufficient mens rea for s 18. This requires that he intended serious harm. Even if serious harm was not his aim or purpose, which is how direct intent was described in Mohan, the jury are likely to decide that he appreciated that serious harm was a virtual certainty as a result of stabbing Sergei, so he will have indirect intent as established in Nedrick and confirmed in Woollin. If the jury were not convinced that he intended serious harm, then the alternative charge under s 20 would be easy to prove. Mowatt confirms that mens rea is only needed for some harm, not serious harm. Frank would have at least foreseen the risk of some harm resulting, and this is Cunningham recklessness, which is enough for s 20. Don Here the appropriate offences are battery and ABH. The word slightly clearly shows that neither s 20 nor s 18 is relevant, so no marks will be gained for discussing these. Battery is the application of unlawful force. Grabbing someone s coat will be a battery, as touching a person s clothes can amount to the application of unlawful force, as stated in Thomas. If the battery causes harm the appropriate charge will be ABH under s 47 which is an assault occasioning actual bodily harm. The battery will be an assault as this word covers both assault and battery in the Act. A cut, even if slight, is likely to be seen as ABH as it is more than trivial, as required by Chan-Fook. The main issue regarding s 47 is one of causation. Factual causation is straightforward as but for Don s actions Kevin would not have been hurt. As for legal causation, both Roberts and Savage are relevant. In Roberts, it was held that a foreseeable event would not break the chain of causation between an assault (assault or battery) and any resulting injury. In Savage, the throwing of the beer was a battery and the glass breaking was foreseeable, facts which are quite similar to these. It is foreseeable that pulling someone off the dance floor could cause them to fall, and a table with glasses on is common in a club so Don caused the harm. It was also confirmed in Savage that mens rea was only needed for the battery, so the prosecution only have to prove that Don recognised a risk of applying force (Cunningham recklessness). Here Don grabbed Kevin s jacket so this presents no problem as he clearly intended the battery (touching the jacket is enough as in Thomas), and the battery caused the harm, (as in Savage) so a charge under s 47 should succeed. 20 marks Question 16 Although stare decisis means stand by things decided, there are ways for judges in the senior courts to avoid this rule if they do not want to follow earlier decisions. The law requires certainty, especially in the criminal law, so precedent should normally be followed, but it may be that this would cause unfairness so there should be some flexibility. Unfairness in the law as it stands is one

9 8 Page reason a judge may not want to follow an earlier decision. A higher court can overrule a lower one, so the Supreme Court (SC) can overrule a decision of the Court of Appeal (CA), but not the other way round. As for overruling its own decisions the SC can use the 1966 Practice Statement. Overruling earlier cases by use of the Practice Statement applies only to the SC. Lord Denning wanted it to extend to the CA, but he was criticised by many other judges for this view. As the SC has the most senior and experienced judges it is right that it has the greatest powers. The Practice Statement allowed the House of Lords (HL) to overrule its own earlier decisions if it appears right to do so and in Edwards v Environment Agency 2011, the SC confirmed that it had all the powers previously invested in the HL. So the powers given under the 1966 Practice Statement have passed to the SC. This gives a wide discretion and allows an old law to be changed. An example of the HL overruling an earlier decision of its own is Gemmell & Richards where Caldwell was overruled and all recklessness made subjective. This is one reason the higher courts might not want to follow a precedent, in order to achieve justice. It is necessary to be flexible if justice is to be achieved, and also if an error has been made the senior courts will want to avoid repeating it. Gemmell & Richards is also an example of the normal rule of stare decisis, because the CA followed the earlier decision in Caldwell as they did not have the power to overrule a decision of the HL. However, very few cases reach the SC so it is important for the CA to have its own powers so a CA judge can decide not to follow an earlier decision. The CA is usually bound to follow its own decisions, as well as those of the SC, but again there are ways to avoid this. The rules from Young v BAC apply. These allow the CA to overrule its own earlier decisions in certain circumstances, but they are fairly limited. The Criminal Division of the CA has a little more flexibility as it is able to overrule a decision in the interests of justice. Distinguishing can also be creative. Although this applies to all courts it is more acceptable in the SC or CA. A case may be distinguished where the material facts are different. An example is seen in Wilson where Brown was distinguished. Although the facts were similar, as both involved serious harm suffered during sexual activities, there were perceived differences. In Brown there was more unacceptable violence and in Wilson the activity was between a man and his wife. Distinguishing can be seen as more acceptable than overruling because the old law isn t changed, just applied differently to different facts. The senior courts can avoid the precedent without changing the law. One reason is to achieve justice, as stated above, another is that the law should adapt to social and technological changes. Parliament does not always react quickly to such changes and if the law is outdated there should be a way to amend it. There may be gaps in the law because Parliament has not responded to change or has not covered every eventuality. An example of responding to social change is R v R, where the HL decided that it was no longer acceptable that a man should have immunity from raping his wife. It is also an example of the balance between the roles of Parliament and the courts. Although the SC and CA may not want to follow a precedent they will often do so, albeit reluctantly. It is more acceptable for an elected Parliament to change the law, and the courts recognise the supremacy of Parliament. An example is Cunningham 1981, where the HL criticised the law that someone can be convicted of murder where there was only intent to cause serious harm, but refused to overrule it. In several cases judges have indicated they would like the law to change but have not done so, preferring to leave that to Parliament. So the judges in the SC and CA might want to change the law but will not always do so even if it is within their powers. If they do change the law, it is possible that Parliament will then amend the relevant law and restore its

10 9 Page supremacy. After R v R amendments were made by Parliament to the Sexual Offences Act, thus bringing the judges decision into statutory law. In conclusion, the SC and CA might not want to follow a previous decision for several reasons. In particular in order to do justice, correct errors, modernise the law and to distinguish between cases where the facts are different. If the senior courts have the power to avoid following the earlier law it is right that they should exercise that power in such circumstances. It is clear that they usually do so with restraint, and sometimes reluctantly. If Parliament wants to be seen as the supreme lawmaker it can do as it did following R v R and amend the statute law. That way both fairness and democracy is achieved. 20 marks

11 Task 15 There is no answer for the task on preparing evaluation notes. Chapter 8 Murder Task 16 The answer is in the table below the task. Task Page The facts are set out in Chapter 3. The murder charge failed in both Nedrick and Woollin because the jury found that D did not appreciate that death was a virtual certainty. This means there was no mens rea, so the offence of murder was not complete. (Where there is no mens rea for murder, the result will be a manslaughter conviction.) Task 18 You may have chosen a different case but here is an example using the way I applied the law to Pagett. Chua 2015 Facts: D worked in a hospital and had contaminated saline bags with insulin. He had medical knowledge. He knew the saline bags would be given to patients, many of who were elderly and vulnerable. Other nurses actually gave the contaminated saline to the patients. Application with cases in support: Actus reus There is an unlawful killing, but did D cause it? But for his action in contaminating the saline the patients would not have died (White). factually caused death. It was that action that played the most significant role in their deaths (Cheshire). The intervening act of the other nurses in administering the saline to the patients was foreseeable and so did not break the chain of causation (Roberts). He legally caused death. We have actus reus but is it murder or manslaughter? Mens rea There may be direct intent but this is hard to prove so consider indirect intent. He had enough medical knowledge to know his actions could cause death. This means he satisfies the Nedrick test because death or serious injury was a virtual certainty and he had medical knowledge so he must have appreciated this. He is guilty of murder. 1 The actus reus of murder is the unlawful killing of a human being under the Queen s peace. The mens rea has been interpreted as malice aforethought, meaning an intent to kill or seriously injure. 2 A result crime is one where a particular consequence is required as part of the actus reus. Causation will therefore be important when proving actus reus, as D s actions must be the factual and legal cause of the result. He

12 11 Page 3 The answer depends on which cases you chose; an example would be Nedrick. The victim would not have died but for his actions and it was foreseeable that someone could be seriously injured in an arson attack. (So he caused the death, but he was not guilty of murder because he did not have mens rea.) 4 The virtual certainty test for mens rea was established in Nedrick 1986 and confirmed by the HL in Woollin I hope you have achieved the aims not only of this Chapter, but of the Chapters on actus reus (causation) and mens rea (intent) too. Chapter 9 Loss of control Task 19 There is no guide for the task of making some notes from the Law Commission site. 1 The Coroners and Justice Act 2009 applies to murder 2 The three things which need to be proved for s 54 are that D lost self-control the loss of self-control was triggered by something specified in s 55 a normal person of D s sex and age would have reacted in the same way in D s circumstances 3 The qualifying triggers are D s fear of serious violence from V against D or another identified person; or a thing or things done or said (or both) which (a) constituted circumstances of an extremely grave character, and (b) caused D to have a justifiable sense of being seriously wronged or a combination of both of these 4 Two characteristics which are not attributable to the reasonable man are jealousy and obsession. 5 The Act specifically excludes sexual infidelity as a qualifying trigger (note that although the act excludes revenge this would be an incorrect answer as it is not a trigger). Chapter 10 Diminished Responsibility Task 20 There is no guide for the task of making some notes from the Law Commission site. 1 I hope so you have achieved the aims set out at the beginning of the Chapter. 2 The opening quote came from Byrne Medical evidence will be required for an s 2 defence. 4 The defendant has the burden of proving the defence. 5 The Coroners and Justice Act 2009 amended the Homicide Act s 2 on the defence of diminished responsibility.

13 Chapter 11 Involuntary manslaughter Task Page A duty of responsibility was seen in Stone and Dobinson, and was breached by not taking sufficient care of a relative. A contractual duty was seen in Pittwood, and this was breached by not doing his job, which was closing the gate. Task 22 This will depend on your chosen scenario but you should have applied the law as with Wood & Hodgson, repeated below: Facts: A 10-year-old girl was visiting the Ds. She found some ecstasy tablets hidden in a cigarette packet and took some. She later died in hospital and they were charged with gross negligence manslaughter. Applying the rules: Risk of death: It is known that ecstasy can kill so there is a risk of death. Duty: they owed her a duty of responsibility (Stone & Dobinson) as a visitor and/or as a child in their care (note that in Evans the CA held that the duty in cases of gross negligence manslaughter was not confined to family and professional relationships). Breach: There was evidence that they had hidden the tablets, and that they had attempted to treat her, but they did not call an ambulance for some time. They had breached their duty to her by not taking reasonable care. Gross negligence: The jury found that they had not shown a sufficiently high level of negligence to be deemed criminal. Result: They were not guilty of gross negligence manslaughter. Task 23 There is no guide for the task of making some notes from the Law Commission site. Task 24 (this answer is in the book but repeated here) The unlawful act is different for each case and added below, for causation in fact and in law it must be shown that but for D s conduct the victim would not have died (causation in fact) D made a significant contribution nothing broke the chain of causation (causation in law) These are applied below. Hancock and Shankland (1986) Throwing the stone is criminal damage. The driver would not have died but for D throwing the stone and throwing the stone made a significant contribution to the death.

14 Pagett (1983) 13 Page Shooting at the police is assault; but for D shooting at the police the girl would not have died. Shooting at the police made a significant contribution to the death and the police firing back was foreseeable so did not break the chain of causation. Nedrick (1986) Setting the fire is arson, a type of criminal damage; but for the fire the victim would not have died and the fire made a significant contribution to the death. Task 25 Constructive liability is where the mens rea and actus rea do not necessarily match. In manslaughter there must be a death but there need not be any mens rea as regards that death. The mens rea is just for whatever the unlawful act is, which may be quite minor, like criminal damage or battery. I do not think it achieves justice because justice requires both fairness and clarity. In JF 2015 the boys were young and not so much at fault as would be the case with an adult, but they were convicted of manslaughter based on an act of criminal damage. This seems unfair. As for clarity, any offence where the mens rea and actus reus don t match is unclear. I agree with the Law Commission that this type of liability is wrong and in order to achieve justice all criminal offences should be based on an accordance of mens rea and actus rea. Task 26 This will depend on your chosen scenario but you should have applied the law as follows. Actus reus Establish whether there was an unlawful act (any crime Lamb) Decide whether the act was dangerous using the objective test from Church Apply the rules on causation in fact (White) and in law (Cheshire/Roberts) to decide if D caused the death Mens rea Decide whether D had intent (to commit the unlawful act) or was subjectively reckless (did D see the risk of whatever the unlawful act was and go ahead anyway?) 1 The elements required to prove gross negligence manslaughter are a risk of death a duty of care breach of that duty gross negligence as regards that breach, which must be sufficient to justify criminal liability 2 It is possible to commit gross negligence manslaughter by omission if there is a duty to act, but not unlawful act manslaughter Khan. 3 The opening quote came from Willoughby In Church, D knocked a woman unconscious and then, wrongly believing her to be dead, threw her in the river to dispose of the body. The principle was that if reasonable people would see the risk of harm, this will be enough to show it was dangerous.

15 14 Page 5 The difference between Cato and Dalby is that in Cato, D was guilty of unlawful act manslaughter by helping administer the drug; in Dalby, the chain of causation was broken by the victim s own act. 6 In Kennedy 2007, the HL decided that in the case of a fully informed adult self-administering the drug, it would never be appropriate to find the supplier guilty of manslaughter. Summary and evaluation of the fatal offences Task 27 I have added the principles to the cases, for the facts refer to the relevant chapter Case Principle Fagan Stone and Dobinson Roberts Cheshire Blaue DPP v Smith An act may be seen as continuing Liability for an omission arises if there is a duty of responsibility for someone A foreseeable act will not break the chain of causation D must make a significant contribution to the result D must take V as found The mens rea for murder is intent to kill or seriously injure Task 28 The appropriate cases are added following the principles 1 That sexual infidelity may be relevant to the circumstances of D, even though excluded by s 55 Clinton That an abnormality of mind (now mental functioning) for diminished responsibility is one that reasonable people would term abnormal Byrne An abnormality caused by alcoholism may be accepted as diminished responsibility Tandy Impairment of responsibility need not be total but must be more than trivial Lloyd Where there is evidence of intoxication as well as another cause of abnormality the jury should ignore the intoxication Dietschmann Tasks 29 & 30 There is no answer for these but hopefully you made some notes to help give you a sound base for an evaluation of the law. Chapter 12 Theft Task 31 The answers are given in the paragraph below the examination pointer. Task 32 (this is covered at the end of the chapter but here is the answer) You may be found guilty of theft of the watch. The actus reus is the appropriation (by picking it up Gomez) of property (the watch) belonging to another (the shop).

16 15 Page You acted dishonestly because ordinary reasonable people would regard the fact that you took it, and only put it back because someone was watching, as dishonest and you know that such people would see it as dishonest (Ghosh). You intended to permanently deprive the shop of the watch. Even though you put it back, this doesn t matter. It is intent (mens rea) to permanently deprive that makes it theft. So you are guilty of theft. Task 33 I have repeated the brief scenarios for clarity. Sam gets home from college to find she has picked up the wrong coat by mistake. She decides to keep it. Answer: This is theft according to s 3(1). Peter buys a book to read on his journey home and thinks it is such rubbish he leaves it on the train in disgust. Susan picks it up and takes it home. Answer: This is not theft as the book has been abandoned. Simon pays a local builder 100 to buy sand to build a patio; the builder buys himself a second-hand dishwasher instead. Answer: This is theft because under s 5(3) the builder has an obligation to deal with it in the way Simon requires. Mary buys a CD and gives a 20 note. She is given change from a 50 note and keeps it. Answer: This is theft. Under s 5(4), if you are given something by mistake (and so have an obligation to give it back), then keeping it can be theft. Task 34 You find a football in your garden and keep it. Answer: You could probably succeed using s 2(1)(a). You take some money from a friend s bag in an emergency. Answer: You could probably succeed using s 2(1)(b). You find a 2 coin in the street and keep it. Answer: You could probably succeed using s 2(1)(c). You find a handbag containing a wallet and credit cards in the street and keep it. Answer: You could try using s 2(1)(c), but are unlikely to succeed as it would not be hard to trace the owner so you would have trouble convincing a jury that you believed you would not be able to do this. Task 35 Dave takes Steve s tickets for that night s pop concert and returns them the next day. Answer: s 6 is satisfied, although there is arguably no intent to permanently deprive there is no goodness left in them. Frank takes 10 from his mother s purse and puts it in his pocket. His sister sees him and says she will tell if he doesn t return it. He puts it back. Answer: Although it may be hard to prove, s 6 is satisfied. He does not need permanently to deprive anyone, only to intend to. Ellie borrows a book from a friend and reads it. She then throws it away.

17 16 Page Answer: Although OK at first as she only borrowed it, s 6 is satisfied when she throws it away as she treats the book as her own and intends to permanently deprive her friend of it. 1. Wild plants can be classed as property when taken for reward or sale or other commercial purpose s 4(3).and wild animals can be classed as property if they have been tamed or kept in captivity s 4(4). 2. Gomez followed Lawrence on the issue of consent ,000 was appropriated in Hinks 4. The three statutory beliefs in s 2 are: a. that he has in law the right to deprive the other of it s: 2(1)(a) b. that he would have the other s consent if the other knew of the appropriation and the circumstances of it: s 2(1)(b) c. that the person to whom the property belongs cannot be discovered by taking reasonable steps: s 2(1)(c) 5. These beliefs do not have to be reasonable 6. Borrowing can amount to intent permanently to deprive when all the goodness or virtue is gone. 7. The section numbers are: Dishonesty s 2 Appropriates s 3 Property s 4 Belonging to another s 5 Intent to permanently deprive s 6 Chapter 13 Robbery Task 36 There is no answer for this one as it was just to read back over the rules for theft to remind you of them. Task 37 & 38 I have put these two tasks together as the same case is used. So applying the law to Clouden: Appropriating s 3 wrenching a shopping basket from someone s grasp is assuming the rights of the owner of it Property s 4 the shopping basket Belonging to another s 5 the person from whom the basket was taken (who was in possession of it even if she didn t own it) Dishonesty s 2 none of the three things specified in s 2 as not being dishonest applies here so the Ghosh test must be used. Taking the property would not be seen as honest by ordinary people and D must have known this Intention to permanently deprive s 6 even if D intended to return or abandon the basket, the intention was to treat the property as his own to dispose of regardless of the owner s rights so s 6 is also satisfied

18 17 Page Therefore we have theft. The extra ingredient for robbery is force or the threat of it immediately before or at the time of the theft, and in order to steal. As seen in Corcoran, the force can be minor. The word wrenching indicates at least minor force; it was at the time of the appropriation and in order to steal so the actus reus of robbery is satisfied. In addition to the mens rea for theft, for robbery the force or threat of it must be intentional or reckless and this can be seen in the wrenching of the bag from the person holding it. D is guilty of robbery. 1. Force or the threat of it turns theft into robbery 2. The five elements to theft are: a. Dishonesty s 2 b. Appropriates s 3 c. Property s 4 d. Belonging to another s 5 e. Intent to permanently deprive s 6 3. Appropriation was treated as continuing in Hale 4. Snatching a bag amounted to force in Corcoran 5. The mens rea for robbery is that the force or threat of it must be intentional or reckless Chapter 14 Attempts Task 39 The effect of causation is that if causation cannot be proved then the crime will not have been committed, so the charge will be the attempted crime. A case example is White, where D tried to poison his mother but she died before it took effect. His actions did not cause her death so he was not guilty of murder, but of attempted murder. 1. Shivpuri overruled Anderton v Ryan on the issue of impossibility so that a person can now be convicted of attempting the impossible. 2. Attempt is defined as with intent to commit an offence, a person does an act which is more than merely preparatory to the commission of the offence. 3. Attempt is defined in the Criminal Attempts Act The CA allowed the appeal in Pace & Rogers because the property was the property of the police, it was not stolen. This meant they could not be guilty of attempt because there was no intent to convert criminal property, so no mens rea. 5. Millard & Vernon confirmed that the mens rea is intent and nothing less. Chapter 15 Insanity and automatism Task 40 The court decided the host of a TV show was not guilty in Madeley, because he merely forgot to pay so had no mens rea (intention). Task 41 In Quick, D was suffering from hypoglycaemia as result of failing to eat after taking his insulin. This part of the sequence can be ignored as it is a non-event. This would be on the left side of the

19 18 Page diagram; the defect was caused by an external factor, i.e., the insulin itself. The defence would be automatism not insanity. In Hennessey, D had taken a car and driven whilst disqualified. He argued automatism caused by failure to take his insulin. This would be on the right side of the diagram; the defect was caused by an internal factor, the disease itself. The defence would be insanity, not automatism. 1. The insanity rules come from M Naghten s case. 2. The quote opening this Chapter came from Windle. 3. The defence of automatism applies when the cause is external. 4. The defence of insanity applies when the cause is internal. 5. A case example for each of these defences to show this difference could be Quick where the insulin was external so automatism applied and Sullivan where epilepsy was held to be a disease of the mind and so insanity applied. Chapter 16 Intoxication Task 42 (this is in the book but repeated here) A possible defence in Lipman is insanity. He clearly had a defect of reason and he did not know the nature and quality of his act. He thought he was fighting snakes not strangling his girlfriend. However, the defect was not caused by a disease of the mind but by the LSD. This is an external factor so consider automatism. The defence of automatism fails because the loss of control was selfinduced (taking LSD). It was voluntary. The defence of intoxication can be argued. The effect of the drug meant he did not have the required mens rea. He had no intent to kill or seriously injure so was not guilty of the specific intent crime (murder), but as the intoxication was voluntary, he was guilty of the related basic intent crime (manslaughter). Task 43 Insanity, automatism or intoxication apply as follows: Lipman 1970: This is intoxication. It was not insanity, as that must be caused by an internal disease. Automatism fails because any loss of control was self-induced. Intoxication can succeed for murder (a specific intent crime) if it negates mens rea and will reduce it to manslaughter. Bailey 1983: Again, it cannot be insanity, as any defect of reason must be caused by an internal disease and insulin is an external factor. Automatism is likely to fail because his loss of control was self-induced (although the court indicated it was a possibility). Intoxication can succeed for GBH only if charged under s 18, (a specific intent crime) if it negates mens rea. He would still be guilty of the related basic intent crime under s 20. Hardie 1984: Here automatism can succeed, as the taking of a drug meant to calm you is different to taking an unpredictable drug and not seen as self-induced. Intoxication could also succeed as it would not be seen as voluntarily taking an unpredictable drug as he thought it would calm him. 1. The difference between specific and basic intent is that the first does not include recklessness. 2. A crime for each type is murder, which is a specific intent crime and assault, which is a basic intent crime. 3. Dutch courage is where D drinks to summon up courage to commit a crime and it is no defence because D has mens rea (intent to commit the crime once intoxicated).

20 19 Page 4. If D successfully pleads intoxication to a specific intent crime such as murder the result is a conviction for a basic intent crime e.g., manslaughter. 5. The quote at the beginning of this Chapter came from Attorney General for Northern Ireland v Gallagher. Chapter 17 Self-defence Task 44 I have repeated the scenarios in the task here for clarity. Amy is walking down the street one dark and rainy night when a young man steps out of a doorway right in front of her. Being a paranoid sort of person, she thinks she is being attacked and strikes out in alarm, cutting his cheek. In fact, he was just coming from his own house. Answer: Amy can use self-defence based on her mistake. Her mistake need not be reasonable as long as it is genuine (Williams (Gladstone). This was confirmed in Martin and by S 76 Criminal Justice & Immigration Act Her defence should succeed, resulting in an acquittal. Walking home from the pub in a drunken haze, Amy sees what she thinks is a man with a weapon coming towards her. She picks up a brick and hits him over the head, causing severe concussion and a nasty cut. It turns out he is from the local radio and is interviewing people on the streets for their views on violence at closing time. Answer: Amy cannot use the defence of self-defence based on a mistaken belief that she was being attacked. According to O Grady and confirmed by S 76, it is not possible to rely on a mistaken belief caused by voluntary intoxication. Her defence will fail. Amy is walking down the street when she sees someone whom she believes is assaulting a young man. She intervenes and attacks him but he promptly arrests her. It turns out he is a policeman in plain clothes. Answer: Amy can use self-defence. Even though she is not personally under attack, defence of another is covered by the defence. Also, as explained above, it is her belief that is important (Williams (Gladstone) / Martin / S 76). Her defence should succeed, resulting in an acquittal. 1. The two main questions for the jury are a. Did D honestly believe the action was justified? b. Was the degree of force reasonable in the circumstances? 2. Self-defence was rejected by the jury in Martin because the force used was excessive and unreasonable. 3. Yes, according to Williams, and confirmed in Martin and by s 76 Criminal Justice & Immigration Act 2008 you can rely on a mistaken belief to justify using force. 4. It was decided in Hatton, and confirmed by s 76, that D cannot rely on a mistaken belief caused by voluntary intoxication. 5. The result of a successful plea of self-defence is an acquittal. Chapter 18 Duress Task 45 I have repeated the scenarios in the task here for clarity. Can I successfully use the defence of duress in the following situations?