LEVEL 3 - UNIT 3 CRIMINAL LAW SUGGESTED ANSWERS - JANUARY 2013

Transcription

1 Note to Candidates and Tutors: LEVEL 3 - UNIT 3 CRIMINAL LAW SUGGESTED ANSWERS - JANUARY 2013 The purpose of the suggested answers is to provide students and tutors with guidance as to the key points students should have included in their answers to the January 2013 examinations. The suggested answers do not for all questions set out all the points which students may have included in their responses to the questions. Students will have received credit, where applicable, for other points not addressed by the suggested answers. Students and tutors should review the suggested answers in conjunction with the question papers and the Chief Examiners reports which provide feedback on student performance in the examination. SECTION A 1. The actus reus of a crime is not merely an act. In some cases it can come about as a result of an omission. It is also necessary to show that the conduct is voluntary. There must also be circumstances required to prove by the definition of the crime. Finally it must be shown that the result or consequences are caused by the defendant. 2. The two types of causation in criminal law are causation in fact and causation in law. Causation in fact is judged by the but for test and there must be no intervening act. With causation in law it is not necessary for the defendants actions to be the sole cause but they need to be more than minimal. Reference to relevant case e.g. White 1910, Cato 1976 and Pagett Oblique intention is where the harm cased was a virtual certainty as a result of the defendants actions. Foresight of consequences is not intention, only evidence from which intention may be implied. Relevant case Woollin The two defences to criminal damage are belief that there is consent or a belief that other property is in need of protection. Reference to relevant case e.g. Denton 1982 s5(2)-(3) CDA The two partial defences to murder are diminished responsibility and loss of control. 6. Gross negligent manslaughter is where a duty of care is owed to another and that duty of care is then breached and as a result there is a death. It is gross when it goes beyond the mere need of compensation. Reference to relevant case e.g. Adomako The three statutory beliefs contained within s.2(1) of the Theft Act 1968 are either that the defendant believes that in law they have the right to deprive Page 1 of 5

2 the owner of it or they believe they would have had the owner s consent if the owner knew of the appropriation and the circumstances or finally that they believe the owner of the property cannot be discovered by taking reasonable steps. 8. The mens rea of attempt is essentially that of the completed crime. In some offences it is necessary to prove a higher level of mens rea. It can be inferred from foresight of consequences. Recklessness is not enough. Reference to relevant case e.g. Easom Intoxication can sometimes mean that there is not the necessary mens rea for the offence. Voluntary intoxication can negate the mens rea for specific crimes, where intention alone is needed. Voluntary intoxication will not be a defence to basic crimes where the mens rea can be intention or recklessness. It is believed that becoming intoxicated is reckless in itself. Involuntary intoxication can be a defence to all crimes if it negates the mens rea. Reference to relevant case e.g. Majewski There are a number of justifications for strict liability crimes but some of the most quoted are that it protects society, is easier to enforce as you don t need to prove the mens rea. It saves the court s time and is less expensive to enforce. There is a lack of blameworthiness but it forces people to comply with regulatory requirements. Scenario 1 Questions 1(a) The mens rea for murder is intention to kill or intention to cause GBH, otherwise known as malice aforethought. The intention can be oblique. 1(b) The actus reus of murder is the unlawful killing of a human being during the Queen s peace. 2(a) The possible partial defences to murder Under the Coroners and Justice Act 2009 are diminished responsibility and loss of control. Diminished responsibility is contained within s.52 of the Act and is an abnormality of normal functioning. It needs to be a recognised medical condition which substantially impairs the ability to understand, Byrne Loss of control is governed by ss.54 & 55 of the Act. There needs to be a qualifying trigger. There needs to be a fear of serious violence from the victim against the defendant or other identified person and can be done by a thing or things done or said or a combination. It can also be by a thing or things done or said or both, which constitute circumstances of an extremely grave character and cause the defendant to have justifiable sense of being seriously wronged. The only characteristics to be taken into account are the age and sex of the defendant. There is no longer a need for immediacy. If successfully pleaded there is no mandatory sentence. Reference to relevant case e.g. Attorney-General for Jersey v Holley (b) The fact that he believes that he is one of the virtual players may lead one to believe that there could be diminished responsibility and one would need to check his medical history to see if there is a medical condition, Byrne It could well be that there is loss of control when Ken starts laughing. The gaining of the high marks and the laughing could act as the qualifying trigger. Did Ross feel these constituted circumstances of an extremely grave character and have a justifiable sense of being seriously wronged? One must take into account Ross s age and sex, Attorney-General for Jersey v Holley If the defence is successful he will be guilty of voluntary Page 2 of 5

3 manslaughter and the judge does not have to impose a mandatory sentence. 3. The two types of causation in criminal law are causation in fact and causation in law. Causation in fact is judged by the but for test and there must be no intervening act. With causation in law it is not necessary for the defendants actions to be the sole cause but they need to be more than minimal. Reference to relevant case e.g. White 1910, Cato It is not necessary for Ross s actions to be the sole cause of Ken s death, but are they the substantial reason or were there intervening acts namely the delay of the ambulance and the dropping of Ken, perhaps unlikely. As to the doctor s actions amounting to an intervening act, it has to be said that the courts have been reluctant to find this and the only significant case is that of Jordan (a) The doctor could be charged with involuntary manslaughter, by way of gross negligent manslaughter. 4(b) Gross negligent manslaughter is where a duty of care is owed to another and that duty of care is then breached and as a result there is a death. It is gross when it goes beyond the mere need of compensation. Reference to relevant case e.g. Adomako Acts of gross negligence which amount to an intervening act are rare, and with medical negligence the only accepted reported case is Jordan Scenario 2 Questions 1(a) The offence for which Joan would be charged under s.1 of the Theft Act 1968 is theft and there would firstly be a need to show there has been dishonesty. The main test for dishonesty is governed by the Ghosh Test. The test looks to see whether what was done was dishonest according to the standards of a reasonable and honest person? If this is the case then the next stage is to see if the defendant realises what he was doing was dishonest by those standards. Joan clearly realised that her actions were dishonest in the eyes of the reasonable and honest person. Joan also had the intention to permanently deprive. There does not have to be permanent deprivation just an intention, which Joan clearly had. 1(b) The actus reus of s.1 of the Theft Act starts with appropriation and when Joan puts the meat in her pocket she is assuming the owners rights. The actus reus requires property to be appropriated and here the property is the meat. The meat belongs to the supermarket, Turner 1971, Wain Intoxication can sometimes mean that there is not the necessary mens rea for the offence. Voluntary intoxication can negate the mens rea for specific crimes, where intention alone is needed. Voluntary intoxication will not be a defence to basic crimes where the mens rea can be intention or recklessness. It is believed that becoming intoxicated is reckless in itself. Involuntary intoxication can be a defence to all crimes if it negates the mens rea. Reference to relevant case e.g. Majewski Theft is a specific crime and therefore potentially a defence for Joan, but did it negate the mens rea? The fact that she sees the CCTV and discards the meat tends to show dishonesty and intention and no negating of the mens rea. 3(a) Joan has committed theft under s.1 of the Theft Act 1968 in that she has dishonestly appropriated property belonging to another with intention of permanently depriving them of it. Page 3 of 5

4 3(b) Joan s possible defence will be found in s.2(1) of the Theft Act 1968 if she can show that she genuinely believed that she would have had Ethel s consent. It has to be shown that Joan was dishonest. She would not be able to return exactly the same money, Velumyl (a) In relation to the bus ticket it will need to be showed that Joan was dishonest and the test that will be applied is the Ghosh Test. The test looks to see whether what was done was dishonest according to the standards of a reasonable and honest person? If this is the case then the next stage is to see if the defendant realises what he was doing was dishonest by those standards. There is however the question of s2(1) of the Theft Act 1968 and whether she believed she had Ethel s consent. One would also need to look at whether there was the intention to permanently deprive and here s. 6(1) of the 1968 Act would be relevant in that she has taken the goodness from the property, Lloyd (b) By using the ticket Joan has appropriated property, which includes things real and personal and here is the ticket. Ethel had possession of the ticket and it belonged to her, Morris Scenario 3 Questions 1(a) Ibrahim wants Samara to commit a crime contrary to s.1 of the Theft Act 1968 in that he wants her to dishonestly appropriate property belonging to another with the intention of permanently depriving them of it. 1(b) The mens rea of theft is dishonesty and the intention to permanently deprive. Dishonesty is judged by the Ghosh Test. Was what Samara did dishonest according to the standards of reasonable people? Does Samara realise that her actions would be viewed in this way? As to the intention to permanently deprive, it is the intention that is all important as there does not actually have to be permanent deprivation. 2(a) Samara may be able to plead the defence of duress, in that she has been forced to commit the crime, It is a defence to all crimes except that of murder. The threat needs to be of death or serious injury to the defendant or a close member of the family and this seems the case with Samara. The threat must be aimed at getting the defendant to commit a specific offence and that is the case with Ibrahim and Samara. However the defence will not work if there is a safe avenue of escape and as Samara is not committing the act till the next day this may be a weakness in her defence. One must ask the question as to whether Samara was compelled to act because of the fear and would a sober and reasonable person acted in such a way. The only characteristic to be taken into account is the ability to resist pressure, Graham (b) Self-induced duress will negate the defence and this can be done through voluntary association. Usually it will involve the defendant knowing that the person by whom they are being threatened has a history of violence. But if they know there has been criminal activity without violence it may still be used. However they must not put themselves in a situation where violence might be used compare Shepherd 1987, Sharp (a) The offence for which Samara may be charged is attempted theft under s.1 of the Criminal Attempts Act Page 4 of 5

5 3(b) To prove the actus reus for attempt it will be necessary to show that Samara s actions have been more than merely preparatory and that she has embarked on the crime proper. Has an act been done which shows there has been an attempt to carry out the crime? It is not always necessary to perform the last act before the crime proper, see Geddes 1996, Gullefer (c) By Samara entering the safe is this more than merely preparatory? She has embarked on the crime proper and it would not be necessary for her to actually pick up the bracelet she intends to steal, Geddes 1996, Gullefer (d) The mens rea of attempt is essentially the same for the completed crime, There needs to be intention to commit the substantive crime. There will need to be proof of intention to bring about the crime and intention can be inferred from foresight of consequences. Is it virtually certain to happen as a result of the defendants actions? Recklessness is not sufficient. Relevant cases include Easom 1971, Whybrow (e) Samara has the intention to commit the crime and intends to deprive the owner Easom 1971, Whybrow (f) By s1(2) of the Criminal Attempts Act 1981 it is possible to attempt the impossible. If the facts of the case are as the defendant believed them to be and in this case Samara would have changed the bracelets over if the expensive one would have been there. See Shivpuri Page 5 of 5