LEVEL 6 - UNIT 3 CRIMINAL LAW SUGGESTED ANSWERS - JANUARY 2013

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1 Note to Candidates and Tutors: LEVEL 6 - 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 set out a response that a good (merit/distinction) candidate would have provided. 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. Question 1 SECTION A Criminal liability generally requires proof of both Actus Reus (AR) and Mens Rea (MR) elements. The AR refers to the guilty act and the MR refers to the guilty mind. Criminal law requires proof of both elements before a defendant (D) can be convicted of a criminal offence. This is referred to as the principle of coincidence of the AR and MR and it requires D to form the requisite MR for the offence at some time during the AR. If these two elements do not coincide, then no offence will have been committed. However, the courts have been quite inventive in circumventing the principle of coincidence in order to ensure that D is held criminally liable. One major exception to the principle of coincidence is strict liability. A D may be held criminally liable for an offence of strict or absolute liability irrespective of the principle of coincidence of AR and MR. Absolute liability offences require no proof of MR at all. Larsonneur (1993) and Winzar v Chief Constable of Kent (1983) were both state of affairs cases, where the D s were found guilty simply because a state of affairs was deemed to exist. In neither case was the state of mind of the D relevant to their liability. Strict liability offences are offences for which at least one element of the MR is missing. In Harrow LBC v Shah (2000) liability was imposed for selling a lottery ticket to a person under the age of 16 even though the D did not realise the age of the customer. Offences of strict liability violate the principle of coincidence because they do not require every element of the MR to be proved for every element of the AR. The courts have sought to circumvent the principle of coincidence by introducing the continuing act theory, this is when the AR takes the form of a continuing act, and D forms the MR at some point during the duration of the act. This theory was developed in the case of Fagan v Metropolitan Police Commissioner (1969) in which D s act was deemed to be continuing until he later formed the MR when Page 1 of 15

2 he realised he had failed to drive off the officer s foot. This theory was also applied in the case of Kaitamaki (1985). This illustrates the point that the courts are willing to stretch the concept of an act in order to ensure that cases fall within the principle of coincidence. The courts have also avoided the principle of coincidence by the creation of the duty principle. When D inadvertently creates a dangerous situation, the law imposes a duty on him to act to avert the danger. D will be liable when he fails to act to fulfil that duty, having realised that he has caused that danger, it is at this stage the MR is formed. This principle was first applied in Miller (1983). This decision has been followed more recently in DPP v Santana-Bermudez (2003). The courts have also introduced the single transaction principle as a way of avoiding the principle of coincidence. This relates to a situation where the AR is itself part of some larger sequence of events. D must form the MR at some point during that sequence. This principle was first applied in the case of Thabo Meli v R (1954). The D s in the above case tried to kill the victim and then, believing him to be dead, rolled him off the edge of a cliff. The D s had the requisite MR when they first tried to kill him but it was rolling him off the cliff that actually caused his death and the MR would not have been present. The court held that the series of consecutive acts constituted a single transaction and the D s were guilty of murder as they had formed the MR at some stage during the transaction. This principle has also been applied in Church (1965), Le Brun (1991) and Attorney General s Reference (No 4 of 1980)(1981). The doctrine of transferred malice could also be seen as the courts way of avoiding the principle of coincidence. The case of Latimer (1886) introduced the doctrine which stated that D s intention in respect of one crime may be transferred to his performance of the AR in respect of another crime. In this case D had the MR to kill A but did not actually kill A; he actually severely wounded B. B later died from his wounds. His MR in respect of A will transfer to the killing of B as the offences are of the same type. This allows coincidence of the AR and MR. The rules on voluntary intoxication laid down in DPP v Majewski (1977) also violate the principle of coincidence. It was held in that case that a D who becomes intoxicated is reckless and, thus, he has the MR for any basic intent offence. The MR is formed before the AR of the offence is performed, when D becomes intoxicated. This rule presumes D is reckless, despite a clear lack of subjective recklessness, and thus, avoids the principle of coincidence. In conclusion, whilst the principle of coincidence clearly has an important role to play in criminal law, the courts have used various methods to circumvent the fundamental principle of coincidence in order to suit the courts desire to ensure criminal liability. Question 2 Involuntary manslaughter occurs when D causes the death of someone but doesn t have the requisite MR for murder which is the intention to kill or cause Grievous Bodily Harm (GBH) to the victim: Moloney (1985). Involuntary manslaughter occupies the middle ground between murder and accidental death as it gives the courts a chance to punish a D for causing someone s death when his behaviour falls short of the MR for murder, but when his actions provide culpability for the death which would not be present for accidental death. Page 2 of 15

3 The difference between murder and involuntary manslaughter is the MR. D will have satisfied the AR for murder but doesn t have the MR for murder. The MR could be that he committed an unlawful act which caused the death of the victim and the act was dangerous (constructive/unlawful act manslaughter): DPP v Newbury and Jones (1977); or, he may have owed the victim a duty of care, which he breached and the breach caused the death of the victim (gross negligence manslaughter): Adomako (1995); or, he may just have been reckless in his actions causing the death of the victim (reckless manslaughter): Lidar (1999). The essence of constructive manslaughter is that the liability for the offence is based upon the commission of another less serious offence (the base crime). For an offence of constructive manslaughter a number of elements have to be proven to exist. D must have carried out an unlawful act, which was also dangerous and the commission of the act caused the death of the victim. Most commonly the unlawful act will be an assault: Larkin (1943) but it can relate to other criminal offences in appropriate circumstances e.g. criminal damage: Goodfellow (1986) and burglary: Watson (1989). The commission of the base crime must be complete. The MR is an essential ingredient of constructive manslaughter and the MR is that of the base crime: Lamb (1967). The offence can only be based on a positive act: Lowe (1973). The test for dangerousness in constructive manslaughter was outlined in the case of Church (1966) where it was decided that for the act to be dangerous, the unlawful act must be such as all sober and reasonable people would inevitably recognise must subject the other person to, at least, the risk of some physical harm resulting therefrom, albeit not serious harm. As far as causation is concerned the normal rules of causation apply; the act must be the factual: White (1910) and legal: Cheshire (1991), Pagett (1983) cause of death: Goodfellow (1986). The case of Adomako (1995) established the elements of gross negligence manslaughter. They are the existence of a duty of care, which was breached, causing the death of the victim. A duty of care is established by professional and contractual relationships eg doctor and patient or by a duty to act where a person is only liable for failure to act if he has a duty to do so: Caparo v Dickman (1990), Khan (1998), Willoughby (2005), Wacker (2003) and Evans (2009). Duty of care is breached by performance of that duty which falls below the standard required: Misra and Srivastava (2005) and Adomako (1995). Duty to act is breached by failure to act. Again, the normal rules of causation apply as stated above. There is a final element which distinguishes civil negligence for causing death and gross negligence manslaughter. If the preceding steps are satisfied, D will still not be criminally liable unless his negligence was gross. D s negligence will be held to be gross if it was so bad that it amounted to a criminal act or omission. This is a question of fact for the jury: Singh (Gurphal) (1999). Reckless manslaughter is based upon foresight of a risk of death or serious harm: Lidar (2000). This is a problematic area and has not been widely used. It is said to fill the gap between constructive manslaughter which requires an AR and MR of an offence and gross negligence manslaughter which requires a Page 3 of 15

4 breach of duty. Reckless manslaughter is based on subjective recklessness, which requires that D had caused death with awareness that his conduct caused a subjective risk of death or serious harm provided that the level of risk foreseen was less than a virtual certainty. The boundaries between murder and involuntary manslaughter could be said to be ill defined. They share a common AR thus the difference lies with the MR requirement: A D who lacks the MR for murder can only be convicted of involuntary manslaughter. Similarly, the boundary between involuntary manslaughter and accidental death could be said to be ill defined. This obviously relates to the relationship between gross negligence manslaughter and civil negligence, the difference between which could lead either to a conviction for involuntary manslaughter or civil liability for negligence. The distinguishing factor between the two is D s conduct which, for gross negligence manslaughter, has to be so bad that it amounts to a criminal act or omission. This has been clearly set out in the cases of Bateman (1925) and Andrews (1937) where the test for gross negligence was set out, for the purposes of criminal law a very high degree of negligence is required to be proved and D must have criminal disregard for the safety of others. The simple lack of care as will constitute civil liability is not enough. This area is subject to proposals for reform and the Law Commission has set out its proposals in a Final Report, Murder, Manslaughter and Infanticide published in November The report proposes a 3 point structure: first degree murder, which relates to the offence of murder as it currently stands; second degree murder, which encompasses voluntary manslaughter and what is currently reckless manslaughter; manslaughter, which encompasses what is currently constructive manslaughter and gross negligence manslaughter with slight changes. This area is still subject to review but reform of this area could result in the law in respect of this area being more clearly defined. Question 3(a) Intention and recklessness both relate to the guilty mind or MR of an offence. Intention is the MR state associated with the more serious offences such as murder and there must be proof of an intention to cause a particular result. An example of this is that the MR for murder is the intention to kill or cause GBH. The degree of what D had to foresee at the time of the AR and how much foresight he must be shown to have had, goes to the core of the debate relating to subjective MR. It is due to an overlap in this area that we now have two types of intention. Direct intention has been defined by Mohan (1976) as a person acting and desiring to bring about the consequences of his actions, this has been approved by Gillick (1986). The Criminal Justice Act 1967 (CJA 1967) has played a part in the debate and S8 makes it clear that foresight is a subjective concept, based on what a person actually foresaw not what he ought to have foreseen or, indeed, what the reasonable person would have foreseen in his position. Common sense dictates that the more probable a consequence, the more probable it is that it was expected or foreseen and the more likely, therefore, it was intended by the person doing the act. This approach has been developed through case law and has become indirect/oblique intention. In Hyam (1975) it was held that a person intends a result which he foresees as a (highly) probable result of his actions; whilst Moloney (1985) held that foresight Page 4 of 15

5 that a consequence was a natural consequence of D s actions was evidence from which the jury may infer intention. In Hancock and Shankland (1986) the Court of Appeal guidelines set out that the greater the probability of a consequence the more likely it is that the consequence was foreseen and therefore intended. Nedrick (1986) clarified the decision in Hancock and Shankland by deciding that the degree of foresight necessary to infer intention is virtual certainty, this decision also supported the decision in Moloney. This led to the current leading authority in respect of indirect/oblique intention. Woollin (1998) approved Nedrick, subject to modification. The most crucial was the substitution of the word find for infer. This defined indirect/oblique intention as: D intends a result if he knows that, barring all unforeseen circumstances, the result is a virtually certain consequence of his conduct. Matthews and Alleyne (2003) suggested that foresight of a consequence as a virtual certainty is evidence from which a jury may find that an act was intended. This decision reverted to the approach prior to Woollin and confuses the current standpoint in relation to indirect/oblique intention. Critics have argued that intention should be limited to direct intention as this would avoid the confusion caused by indirect/oblique intention. They also argue that the boundaries between indirect/oblique intention and recklessness are becoming less and less clear. An example of this is the dividing line between murder and manslaughter. The MR for murder is the intention to kill or cause GBH. This requires a consequence which is foreseen by D as virtually certain. The MR for manslaughter is recklessness, which requires a consequence foreseen as highly probable. It is fair to say that the courts have not been very successful to date in their definition of intention, particularly indirect/oblique intention. They have caused much confusion in this area with their inconsistent decisions. On a positive note, this area is subject to reform and in 2006 the Law Commission published a report which recommended that the Woollin direction on indirect/oblique intention should be codified and intention should be defined as a person intends a result if he acts in order to bring it about and a jury direction that an intention may be found if it can be shown that D thought that the result was a virtually certain consequence of his actions. The other option offered by the report was to limit intention to direct intention. To date the Government have not responded to the proposals so the area is still very confusing. Question 3(b) Recklessness, by contrast, implies risk taking as opposed to the defendant foreseeing a consequence as a certainty. This is seen to be a lower standard of MR than intention. Subjective recklessness is defined as the conscious taking of an unjustified risk and was established in the case of Cunningham (1957). The question to be asked when considering subjective recklessness is Was the risk in D s mind at the time the crime was committed? In other words, did D foresee the risk of his actions? The key point to note about this approach to recklessness is that there would be no liability if the risk had never occurred to the defendant. Objective recklessness is the conscious or unconscious taking of an obvious risk and was established in the case of Caldwell (1981) and related to criminal damage offences. The question to be asked when considering objective recklessness is Would a reasonable man have recognised the risk? The objective test was heavily criticised and it was said to be too harsh particularly in respect of juveniles or D s of low intelligence. This was the standpoint until G and Page 5 of 15

6 Another (2003) which overruled Caldwell and changed the law in respect of the MR required for criminal damage, which is now subjective recklessness. Having two tests for recklessness was problematic as it over complicated the law and was confusing for juries. It also blurred the boundaries between recklessness and negligence. These criticisms led to the decision in G and Another (2003) which restored the subjective recklessness test for criminal damage and established that all recklessness is subjective. This was a turning point for the courts in this area and made the definition of recklessness clear. This could be said to be a success for the courts in relation to defining the concept of recklessness. Question 4 The purpose of criminal law is not to criminalise those who cannot control their actions whether physically or by lack of understanding. Consequently, the law seeks to convict only those who are morally culpable for their acts/omissions and those who do not understand the nature and content or consequences of their actions should not be held liable. General defences have been developed over time and can be pleaded to a range of offences. The general defences relating to the MR of a crime, if proven, establish that D did not have the mental capacity to commit the crime. The general defences that we have to consider are insanity and automatism. If pleaded successfully the defence of automatism will lead to an acquittal whilst a successful plea of insanity will lead to a qualified acquittal. The final defence to consider which relates to a D s mental capacity is diminished responsibility. This defence can only be used as a defence to murder and if pleaded successfully will reduce the charge to voluntary manslaughter. All of these defences therefore exist for different legal purposes. There are individual definitions for each defence and their applications, in respect of D s mental state, vary. Take, for example, the defences of diminished responsibility and insanity, both look at condition, cause and effect but each is different. Diminished responsibility under S52 of the Coroner s and Justice Act 2009 (C&JA), provides that a person should not be convicted of murder if he can show that at the time of the killing he was suffering from an abnormality of mental functioning, which arose from a recognised medical condition, that caused or was a significant contributory factor in causing him to act as he did (in killing); and the abnormality substantially impaired his ability to understand the nature of his conduct or form a rational judgement and/or exercise self control. The definition of insanity at the time of the commission of the offence is founded on the M Naghten Rules (1843) and their subsequent interpretation by the courts. To satisfy the defence of insanity D would have to be able to prove that, on the balance of probabilities, at the time of the commission of the offence he was suffering from a disease of the mind and that he did not know the nature and quality of his act or that it was wrong. The effect of the condition is that for diminished responsibility, responsibility is the key whilst for insanity understanding is the key. This was clarified in the case of Byrne (1960). In this case D was found to be suffering from diminished responsibility at the time that he mutilated and killed a number of women. This was because he felt an irresistible impulse to act as he did and, even though he understood the nature and quality of the act and that it was wrong, he could not Page 6 of 15

7 help himself. It was held that he had understood what he had done but was not responsible for his actions due to an abnormality of mental functioning. Contrast this with insanity where the nature and quality of an act relates to an awareness of its physical nature and quality not its moral quality. Codere (1916), Johnson (2007) confirmed the position that D can only rely on this defence if he did not know that act was legally wrong, even if he knew it was morally wrong. Therefore insanity requires that at the time of the offence D did not know the nature and quality of his act or that it was legally wrong. This is the main difference between these defences. However, confusion between the two is easy as in other ways they are very similar. Both require an internal abnormality of mental functioning or disease of the mind, and that this mental problem caused substantial impairment to his ability to form a judgement and exercise self control or caused him not to understand the nature and quality of his act or that it was legally wrong. There is much debate on the cause of the mental disorder in each defence. Should the conditions be the same? Or is diminished responsibility a temporary condition at the time of the offence, whereas insanity could be said to be a permanent or recurrent state? All of these unanswered questions add to the confusion between these defences. The defences of insanity and automatism are closely linked, as for both defences D has acted whilst not in control of his mental faculties. The difference is that the defence of automatism can be pleaded when D suffers a defect of reason which arises from an external factor as opposed to a state of mind arising from an internal factor as in insanity and diminished responsibility. To successfully plead a defence of automatism D would have to show that an external factor resulted in his involuntary conduct, and that he was not at fault. Automatism must relate to external factors and to temporary disturbances which cannot be related to any notion of disease e.g. the hypoglycaemic state produced where D suffers from diabetes and takes insulin. In Quick (1973) it was found that diabetes resulting in hypoglycaemia is not regarded in law as a mental condition. Lawton LJ observed that Quick s mental condition was not caused by his diabetes but by his use of insulin prescribed by his doctor which meant that the malfunctioning of his mind was caused by an external factor and not an internal disease of the mind. This should be contrasted with the case of Hennessey (1989) where it was decided that a diabetic who forgot to take insulin, which resulted in a hyperglycaemic state, could argue the defence of insanity as the hyperglycaemia was regarded as being caused by an inherent defect the diabetes itself. The defences are confusing as parts of them overlap and seem to say the same thing. There are obvious similarities between the defences but each has radically different outcomes for the defendant. For this reason, the ability to identify and distinguish between them is essential. Page 7 of 15

8 Question 1 SECTION B This question requires consideration of theft, fraud and burglary offences. The first offence to consider would be obtaining services dishonestly under S11 Fraud Act 2006 (FA 2006). To be guilty of this offence a person must obtain services for himself or another by any dishonest act. The AR requires that there must be a causal link between the act and the obtaining of the service DPP v Ray (1974). Joanna and Sian decided prior to entering the restaurant that they would order meals knowing that they could not pay, this provides the causal link between the act and obtaining the services. The AR would be satisfied. The MR is dishonesty and the test set down in R v Ghosh (1982) applies. In Ghosh (1982) a two limbed test was established and both limbs must be satisfied to prove dishonesty. The question we need to ask is Were D s actions dishonest according to the standards of a reasonable and honest person and would D have realised this? The answer to both questions must be yes in this case and both D s were dishonest in their actions. Joanna and Sian would both be guilty of obtaining services dishonestly as they knew when they entered that restaurant that payment for the meals on the spot would be required and that they had no intention to pay for the meals when they ordered them. Their actions were dishonest when they left the restaurant. The next offence to consider would be the theft of the jacket and contents under S1 of the Theft Act 1968 (TA). Section 1 of the TA says that a person is guilty of theft if he/she dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it. There would be no argument that the jacket would satisfy property under S4 TA as it is personal property. It is also obvious that it belongs to another, S5 TA as it does not belong to either Sian or Joanna. Under S3 appropriation is any assumption of the rights of an owner. An assumption of one of these rights is sufficient for appropriation, in Morris (1983) it was changing the labels on goods, which only the owner could do. In this case both D s assumed the rights of the owner by using the jacket and its contents as their own. Under S2 TA dishonesty is defined by what is NOT dishonest; which includes if D believes he would have the consent to the appropriation. The question will be whether they honestly believe in that consent; to which the Ghosh (1982) test, (as set out above) may guide a jury. Under S6 it is sufficient that D has the intention to permanently deprive: Morris (1983) Wheatley and another (2006). Intention can be inferred if D intended to treat the property as his own by disposing of it regardless of V s rights: Cahill (1993) Lloyd (1985). The Ds in this case had no intention of returning the jacket or its contents to its owner. Page 8 of 15

9 Again they would both be guilty of theft as even though Joanna initially stole the jacket, they both then used the contents from inside the jacket (the debit card, money and keys) and Sian was aware that Joanna had stolen the jacket. Next we have to consider Fraud. Under S2 of the Fraud Act 2006 (FA) to be guilty of fraud a person must dishonestly make a false representation and intend by making it to make a gain for himself or another, or cause loss to another, or expose another to a risk of loss. Sian made an implied representation that the debit card was hers when she used it to try and withdraw money from the cashpoint: Doukas (1978), Stonehouse (1978) and Darwin and Darwin (2008). The representation is obviously false as it was not her account. To establish whether Sian has been dishonest we must apply the Ghosh (1982) test for dishonesty as mentioned above. The answer would obviously be that Sian must have realised that an ordinary reasonable person would have thought that she was dishonest as by trying to use the card she was trying to permanently deprive the owner of his/her money. She tried to withdraw the money with the intention to make a financial gain for herself and Joanna, therefore both Joanna and Sian would be liable for an offence of fraud by false representation as Joanna was aware of what Sian was doing and was hoping to make a financial gain from it. The next offence to consider would be Burglary. Under S9 of the Theft Act 1968 (TA) a person will be guilty of burglary if he enters any building or part of a building as a trespasser with intent to steal, inflict grievous bodily harm (GBH) on any person therein or to cause criminal damage to the building or anything therein or, after having entered any building or part of a building as a trespasser he steals or attempts to steal or inflicts or attempts to inflict GBH on any person therein. S9(1)(a) requires that there was an intent either to steal or to inflict Grievous Bodily Harm (GBH) or to cause criminal damage when D entered the premises. On the facts provided it could be said that when they entered the property they did so with a conditional intention to steal, that being that case they would be liable for burglary under s9(1)(a) TA In this case Joanna and Sian knew that they were trespassing as they did not have the owner s permission to be in the house Collins (1973). There is no direct evidence that they entered with intent to steal but, having entered as trespassers, they did steal personal property belonging to the owner. There is no requirement of intent to commit an offence for an offence under S9(1)(b), however to prove a S9(1)(b) offence, theft or GBH has to be committed or attempted. They also satisfied s1 TA 1968, as set out above, as they dishonestly appropriated goods belonging to another with the intention of permanently depriving the other of them. They entered the property as trespassers and once inside they appropriated (assumed the rights of the owner), goods (the IPod and laptop) which belonged to another (the owner of the property), with the intention to permanently deprive the other of them (they planned to sell them). By applying the Ghosh test we can also show that they were dishonest. The relevant charges for both Joanna and Sian are offences of burglary under S9(1)(a) and S9(1)(b) TA Page 9 of 15

10 Question 2 This question requires consideration of the liability of Ben, Tom and Darius in respect of individual scenarios which all result in an assault. (a) Liability of Ben When Ben threatens to kick the person s head in he may have committed a common assault contrary to s39 of the Criminal Justice Act 1988 (CJA 1988). The prosecution will have to prove that Ben caused the person to apprehend immediate physical violence as a result of the words used: Fagan v Metropolitan Police Commissioner (1969), Lynsey (1995). There can still be an assault even if the threat appears conditional on the complainant doing something in this case knocking Ben s arm again and making him spill his drink: Read v Coker (1853). S39 CJA 1988 requires consideration of the victim s perceptions in relation to the words used Smith (1983). It is sufficient to be able to prove that the victim thought that physical violence would be immediate: Burstow; Ireland (1997). This can be proven by D s tone and demeanour at the time the words were used. The MR for this offence is either an intention to commit an assault or recklessness that the victim would apprehend immediate physical violence Savage; Parmenter (1989). Ben could be liable for a common assault in respect of the words used to the passer by contrary to S39 CJA Ben could also be liable for an offence of battery in respect of the unprovoked assault on Rob physically pushing him, causing him to spill his drink. Ben intentionally or recklessly: Venna (1975), Savage; Parmenter (1989) inflicted personal violence on Rob: Rolfe (1952). Rob did not give Ben permission to assault him, therefore the contact was both physical: Ireland; Burstow (1998) and unlawful. When he pushed Rob, Ben was reckless as to whether he had inflicted unlawful personal violence upon Rob. Rob didn t have any visible injuries. Ben could be liable for an offence of battery in respect of Rob contrary to S39 CJA There would be no relevant defences that would be available to him. (b) Liability of Tom The next offence to consider is the unprovoked attack on Dean by Tom. The offences that we have to consider are contrary to s18 and s20 of the Offences Against the Person Act 1861 (OAPA 1861). S20 OAPA 1861 is the unlawful and malicious wounding or inflicting of grievous bodily harm (GBH) upon any other person, either with or without any weapon or instrument. A wound consists of a break to both layers of skin: Eisenhower (1984). GBH means serious harm : Smith (1961), Wood (1830), Saunders (1985) and Bollom (2004). There must be foresight (or intention) of causing some harm: Mowatt (1968). S18 OAPA 1861 says that D unlawfully and maliciously by any means whatsoever wounds or causes any GBH to any person with intent to do GBH. The offence is virtually the same as that for S20 OAPA 1861 except that there must be an intention to cause GBH for a S18 OAPA 1861 offence whereas a S20 OAPA 1861 offence can be caused recklessly. Page 10 of 15

11 When Tom lunged at Dean with a broken bottle it was an assault. The injuries caused to Dean were deep lacerations to his face requiring cosmetic surgery and extensive internal and external stitching. These injuries described would satisfy the criteria for both a wound and/or GBH under S18 or S20 OAPA Tom intended to assault Dean and it could be argued that he intended to cause him GBH as he deliberately smashed the bottle on the bar before lunging at Dean. Therefore, Tom would be criminally liable for an assault under S18 OAPA 1861 against Dean. We are not told if Tom has been drinking or not. However, he is in a nightclub and the only possible defence that he could plead would be voluntary intoxication: DPP v Majewski (1977). Whether this defence would be available would depend on the offence charged. If charged contrary to s18 OAPA he may have a defence as this is a crime of specific intent. If, however he is charged contrary to s20 OAPA the defence would not be available as this is a crime of basic intent. (c) Liability of Darius Darius punched the man a number of times causing visible injury, this could constitute an offence of Actual Bodily Harm (ABH) contrary to S47 OAPA S47 OAPA 1861 (ABH) relates to the intentional or reckless infliction of unlawful violence upon someone: Savage; Parmenter (1991). ABH refers to an assault which interferes with the comfort of the victim and is more than transient or trifling: Miller (1954) and T v DPP (2003), and there has to be an injury: Chan- Fook (1994). Whilst it may include psychiatric harm: Ireland (1998), it does not include mere emotions such as fear or panic, or states of mind which are less than an identifiable clinical condition. When Darius punched the man it was a physical assault. The injury sustained by the man was bruising to his ribs. This would constitute an injury which was more than transient or trifling and would interfere with his comfort. Darius is likely to have been aware that there was a risk that his actions towards the man would result in the infliction of unlawful violence. Therefore he could be liable for an assault ABH contrary to s47 OAPA Darius could potentially rely on the private defence of self defence and/or possibly a public defence under S3(1) of the Criminal Law Act 1967 (CLA 1967). Both of these defences are now governed by the guidelines established under S76 of the Criminal Justice and Immigration Act 2008 (CJIA 2008). Self defence permits a person to use reasonable force in protection of himself or others: Rose (1884), Duffy (1967). The issue with this defence is usually whether the force was reasonable in the circumstances. The evidence indicates that Darius was alarmed and was motivated in his actions by a desire to stop the man from attacking his friend Abdul, he was neither looking for a fight nor was he motivated by any desire for revenge. The magistrates or a jury would decide whether Darius s actions were reasonable. They would have to consider whether Darius honestly believed that it was necessary to defend Abdul and, if so, on the basis of the facts and the danger perceived by Darius was the force used reasonable? If the answer is yes to both points then they must acquit Darius of ABH. However, if they accept that his actions were to protect his friend but that he went beyond the Page 11 of 15

12 use of reasonable force then he would have no defence under common law: Clegg (1995). The public defence created by s3(1) CLA 1967 permits the use of reasonable force to prevent the commission of an offence. CJIA 2008 confirms that the same principles apply to both the private and public defences in relation to the concept of reasonable force and mistaken belief. The attack on Abdul clearly involved the commission of an offence. The issue will be whether the force used by Darius was reasonable in the circumstances. The burden of proof would be on the prosecution to prove that the actions of Darius were not reasonable in the circumstances. Question 3 This question requires consideration of property offences and non fatal offences against the person. Liability of Marcus In respect of pouring paint on Creighton s car, Marcus would be liable for an offence of simple criminal damage contrary to s1(1) of the Criminal Damage Act 1971 (CDA 1971). This offence requires proof that D intentionally or recklessly destroyed or damaged property belonging to another without lawful excuse. The damage need not be permanent: Gayford v Choulder (1898) but must be more than trivial: Fiak (2005), A (a juvenile) v R (1978) and the victim must be put to some expense in rectifying/repairing it: Roe v Kingerlee (1986). It was held in Hardman v Chief Constable of Avon and Somerset (1986) that painting on a pavement in soluble paint was sufficient to constitute damage. Therefore, pouring paint over the bonnet of Creighton s car will constitute damage. The car is the personal property of Creighton s10(2) CDA 1971 and Marcus would have no lawful excuse to damage the car, thus the AR for the offence is satisfied. The MR for a s1(1) offence requires proof that D intended or was reckless in causing the damage. It is quite obvious that that Marcus intended to cause the damage in this case. When Marcus cuts the brake cable he is guilty of simple criminal damage under S1(1) as the cable is permanently damaged, it is the property of Creighton and Marcus would have no lawful authority for causing the damage s5(2)(a) CDA However, in this case, he would be liable for an offence under s1(2) CDA 1971 which is aggravated criminal damage. This offence contains an extra MR element. In order to convict Marcus of a s1(2) offence the prosecution must be able to prove that Marcus thereby intended to or was reckless as to endangering the life of another. The inclusion of the word thereby is crucial to the uplifted MR. The fact that Marcus cut the brake cable is strong evidence from which it could be inferred that he thereby intended to endanger Creighton s life. However, at the very least he must have been reckless as to whether his life would be endangered. When considering whether Marcus was reckless the subjective test as set out in G and Another (2003) would be applied. This requires Marcus to have considered the risk that Creighton s life might be endangered by his conduct, but to have taken that risk anyway. Page 12 of 15

13 Liability of Creighton In respect of burning Marcus s clothes, Creighton would be liable contrary to s1(1) and (3) of CDA 1971 of causing simple criminal damage by arson. The AR and MR are the same as for s1(1), the difference is that for this offence the damage has to be caused by fire. Burning the clothes will amount to the destruction of property by fire. The clothes are the personal property of Marcus s10(2) CDA Even though they were bought by Creighton, they had been given to Marcus recently as a present so they were Marcus s property. It is unlikely that Creighton would be able to argue that he honestly believed that Marcus would consent to the damage s5(2)(a) CDA The MR would be satisfied as Creighton obviously intended to damage/destroy the clothes, so he would be charged under s1(1) and (3) of the CDA We also have to consider whether any offence was committed when Creighton cut off Marcus s ponytail. Marcus was asleep at the time that his ponytail was cut off. This would be an assault as Creighton intentionally or recklessly inflicted unlawful force on him. There need only be the least touching to constitute force and this is evident in this case. ABH refers to an assault which interferes with the comfort of the victim and is more than transient or trifling: Miller (1954) and T v DPP (2003). In the case of Smith (2006) it was decided that cutting someone s hair without their consent would amount to a s47 offence. Sir Igor Judge (President of the Queen s Bench Division) in that case stated that physical pain was not necessary for the offence; hair is attached to the scalp and therefore attached to the body. It was held that cutting the hair without consent could interfere with the comfort of the victim which would be more that transient or trifling and could affect them mentally. The MR is intention or recklessness. In this case Creighton intended to inflict force on Marcus by touching him and cutting off a substantial amount of his hair. He would also be liable for an offence of assault ABH contrary to s47 OAPA Question 4 The first offence committed in the problem is conspiracy to commit burglary. Imran, Kylie and Fred could all be charged with statutory conspiracy to commit burglary under s1(1) of the Criminal Law Act 1977 (CLA 1977). The AR is present as two or more people agree to pursue a course of conduct amounting to a criminal offence: Walker (1962), they agree to burgle John s house. The MR requires firstly that the parties intend to enter into the agreement; this is clear on the facts. The second requirement is that the parties intend the agreement to be carried out and that the burglary is committed: McPhillips (1999), Yip Chiu- Cheung (1994). Under s1(2) of CLA 1977 it must also be proven that the parties knew or intended that the circumstances constituting the AR of the offence existed. As the burglary does take place the MR of burglary is satisfied and all three are guilty of a conspiracy to commit burglary. Page 13 of 15

14 Imran and Fred both commit the burglary and are joint principals: Macklin and Murphy s case (1838). They are both the direct cause of the AR of burglary with the relevant MR. Thus they will be charged jointly as principals to the burglary under s9(1)(a) TA. The AR and MR of burglary are satisfied as they entered John s house as trespassers with the intention to steal. S9(1)(b) could also be relevant as having entered as trespassers they attempted to steal property belonging to John. The burglary would be aggravated under S10 TA as at the time of committing the burglary Imran had with him a weapon of offence: Francis (1982). They would both be jointly liable for aggravated burglary as Fred knew that Imran had the knife with him when he entered the property. However, Kylie may not be a principal offender in respect of the burglary. Nevertheless, she may be convicted as a secondary party to the burglary. There are two offences with which she could be charged in this regard. Firstly, she could be charged with aiding, abetting, counselling or procuring the burglary contrary to s8 Accessories and Abettors Act 1861 (AAA 1861). By acting as a look out she does not carry out the AR of burglary but she does aid the offence: Bryce (2004) by helping Imran and Fred to commit the burglary. She also has the MR of a secondary party because she intends to do the act of assistance as she intends to keep a look out: National Coal Board v Gamble (1959). It is also clear that Kylie knew of the circumstances which constituted the offence: Johnson v Youden (1950). Secondly, she could be charged with burglary under s 9(1)(a) TA on the basis of joint enterprise. Lord Parker in Anderson and Morris (1966) said that when two persons embark on a joint enterprise, each is liable for the acts done in pursuance of that joint enterprise and that includes liability for unusual consequences but if one of the parties goes beyond what has been agreed as a common enterprise, the other party is not liable for the consequences of the unauthorised act. In Petters and Parfitt (1995) it was held that where there is a prior agreement to commit an offence this will automatically provide the AR for secondary participation removing the need to prove any of the acts contained in AAA Under the doctrine of joint enterprise Kylie could also be found guilty of burglary even though she did not perform the AR of burglary. She is likely to be convicted on the basis that she embarked on a joint enterprise with Imran and Fred and they all acted in pursuance of a common purpose, burglary. The final issue to be considered in respect of the burglary is whether Kylie withdrew from the joint enterprise when she ran away from the house. It is possible for a secondary party to withdraw from a joint enterprise and avoid liability provided that the withdrawal is unequivocally communicated to the other party: Whitehouse (1941), Gallant; Mitchell (2008). In situations where the joint enterprise has begun, communication alone is not sufficient and the withdrawing party should try to prevent the offence from occurring by physically intervening: Beccera and Cooper (1976), Grundy (1977). As Kylie tried to withdraw from the burglary after it had begun, she is required to do more than merely communicate her intention to play no further part in the joint enterprise to Imran and Fred. She did not communicate her withdrawal nor did she try to stop the burglary, consequently her withdrawal was not effective and she would be held liable for burglary under the doctrine of joint enterprise. When Imran stabbed John he departed from the common purpose and became the principal offender in respect of murder. He performs the AR of murder by Page 14 of 15

15 unlawfully killing John and he has the MR for murder because he intends to kill or cause GBH to John: Vickers (1957). Consideration has to be given to whether Fred and Kylie could also be liable for murder as secondary parties. The key issue is whether Fred and Kylie have the requisite degree of foresight in respect of the murder to be held liable for the murder under the doctrine of joint enterprise. Fred and Kylie could be liable for murder if either of them foresaw that Imran might kill during the burglary with the intention to kill or cause GBH: Powell and Daniels; English (1997). They may also be liable if the court finds that they foresaw that Imran may do an act that could lead to death or GBH: Rahman and others (2008). There is no evidence that Fred and Kylie foresaw the killing as they both expected John not to be at the house and even though they knew Imran had a knife it was never mentioned that he would use it as a weapon if necessary. The fact that the use of the knife was fundamentally different from that agreed under the joint enterprise: Rahman and others; Smith(Dean) and others (2008), means that Fred and Kylie would not be liable under the doctrine of joint enterprise for the murder of John. Page 15 of 15