Criminal Law Training Module

Transcription

1 Criminal Law Training Module

2 For additional information please contact: Forum Legal PL 62 (Kutomotie 18) Helsinki Finland Tel: Fax: info@forum-legal.com Internet: English by lawyers for lawyers 2

3 INTRODUCTION LEGAL NOTES WHAT IS CRIME? WHAT MAKES A CRIMINAL OFFENCE? ACTUS REUS VOLUNTARINESS MENS REA THE COINCIDENCE OF ACTUS REUS AND MENS REA LANGUAGE EXERCISES CRIMINAL LAW TERMINOLOGY PROBLEM WORDS AND PHRASES VOCABULARY CASE ANALYSIS LISTENING COMPREHENSION APPENDIX 1: LISTENING COMPREHENSION SCRIPT APPENDIX 2: ANSWER KEY English by lawyers for lawyers 3

4 Introduction Forum Legal This Criminal Law Training Module is aimed at legal professionals and law students whose first language is not English but who are required to write, read and speak English in legal contexts on a regular basis. It aims to optimise your effectiveness in using legal English whether reading, writing, listening or speaking, and has been tailored to the needs of those studying for Cambridge ESOL s International Legal English Certificate (ILEC) which is the only fully accredited legal English qualification available internationally. The material contained in this module will also be of use to legal English trainers. The module comprises 1.5 hours of training and contains a marking scheme: 100 marks are available for the whole module. It contains (1) comprehensive legal notes on criminal law, and (2) reading, writing and listening exercises based on criminal law-related terminology and legal scenarios. The module finishes with a listening comprehension (a client interview), which features the recorded voices of native English speakers. It may either be used as a stand-alone resource or in conjunction with the other training modules available from each of which focus on a separate area of commercial legal practice. The script for the audio recording and answers to all exercises (including model answers for the written exercises) are contained in the appendices. Rupert Haigh s Legal English (Cavendish-Routledge, 2004) constitutes a useful reference resource when working through this module. Except where stated otherwise, the law referred to in this module is English law. 1 Legal Notes 1.1 What is crime? Here are two definitions of crime used in English law: An act (or sometimes a failure to act) that is deemed by statute or by the common law to be a public wrong and is therefore punishable by the state in criminal proceedings. (Oxford Dictionary of Law) It is not simply anything which the legislature chooses to call a crime. It is not simply anti-social conduct which public officers are given a responsibility to suppress. It is not simply any conduct to which a legislature chooses to attach a "criminal" penalty. It is conduct which, if duly shown to have taken English by lawyers for lawyers 4

5 place, will incur a formal and solemn pronouncement of the moral condemnation of the community. Smith and Hogan, Criminal Law (Butterworths 1988) pp What makes a criminal offence? The basic maxim applicable to criminal law is actus non facit reum nisi mens sit rea = an act does not make a person guilty of a crime unless that person's mind is also guilty. In other words, in most cases, crime requires an element of intention to do the act which constitutes the crime. Each crime is therefore made up of a mental element known as mens rea and a physical element known as actus reus. 1.3 Actus reus Actus reus is the unlawful act or behaviour, but includes other factors (e.g. an omission to fulfil a legal duty may constitute an actus reus). The actus reus of an offence may accordingly be defined as: (i) (ii) (iii) the CONDUCT which is the central feature of the crime; the surrounding material CIRCUMSTANCES the result/consequences of the defendant's actions. An unlawful intention may be established by itself, but this is not per se punishable. An actus reus must be established in each case. As noted above, in certain cases omission to act can constitute an actus reus. For example, in the case of R v Instan the defendant neglected to give food to P, a helpless invalid in his care, who as a result died of malnutrition. The court held that the defendant had breached his common law duty to care for P. Another example of a crime of omission is provided by the case of R v Miller [1983] 2 AC 161: The defendant was a vagrant who was squatting in an unoccupied house. One night he lit a cigarette before falling asleep and later woke to find that the cigarette had set fire to the mattress. He did nothing to extinguish the fire but moved to another room where he again fell asleep. The fire caused considerable damage to the house. Miller was convicted of arson. His appeal was dismissed by the Court of Appeal and he appealed to the House of Lords. Lord Diplock stated: I see no rational ground for excluding from conduct capable of giving rise to criminal liability, conduct which consists of failing to take measures that lie within one's power to counteract a danger that one has oneself created, if at the time of such conduct one's state of mind is such as constitutes a necessary ingredient of the offence. English by lawyers for lawyers 5

6 1.4 Voluntariness It is an essential element of an crime that the defendant controlled his or her actions that these actions were willed. In certain cases, however, the defence of automatism can be raised. This refers to unconscious involuntary conduct caused by some external factor. Examples include sleepwalking, hypnotic trance or the acts of a diabetic suffering a hypoglycaemic episode. It is not a defence if this state is selfinduced (e.g. by taking excessive drink or drugs). Duress is also a complete defence the essence of duress is that the defendant's actions were involuntary because his or her will to act was overborne by threats of immediate death or serious injury. The defence of provocation is a mitigatory defence which only applies in cases of murder. Provocation refers to the situation where the defendant alleges that he or she totally lost control as a response to another's provocative conduct. If accepted by the court, provocation is sufficient to convert what would otherwise have been murder into the lesser offence of manslaughter. In the case of R v Duffy (1949), Devlin J stated that, provocation is some act, or series of acts, done by the dead man to the accused, which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind. 1.5 Mens rea The term refers to the mental element of a crime, literally a guilty mind. However, different categories of crime require different levels of mental intention. Certain offences (e.g. minor traffic offences) are described as strict liability offences meaning that liability may be imposed upon the defendant without the need to prove intent on the part of the defendant. Of those crimes that do require some level of mens rea intent, three categories may be distinguished: (1) offences requiring intention/knowledge (= an intention to bring about an event together with foresight that that event will ensue from the conduct used). (2) offences requiring a reckless state of mind (= where the risk of the consequences of the defendant's action occurring would be obvious to a reasonable person, but the defendant closes his or her mind to this obvious risk). (3) offences requiring a special mental state, e.g. dishonesty in the crime of theft. English by lawyers for lawyers 6

7 1.6 The coincidence of actus reus and mens rea We have seen that in most cases there are two elements to criminal liability actus reus and mens rea. In addition to proving these elements the prosecution must also prove that these elements were concurrent. In most cases these elements will coincide in the sense that at the time the consequence occurred the accused possessed the requisite mental element. However, in certain offences involving series of acts or transactions the position is more complicated. Here are two cases that illustrate this point. Thabo Meli In Thabo Meli (1954) the appellants acting in concert lured a man into a hut, attacked him, and, believing him to be dead, took his body to a cliff and rolled it over the edge in the hope of making the death look like an accident. It transpired that at the time he was pushed over the cliff he was actually still alive and later died from exposure whilst lying unconscious at the foot of the cliff. It was argued for the appellants that two acts had been carried out, the attack in the hut where there was clear intent to kill and the second in pushing the victim over the cliff where there was no intent to kill as they believed him already to be dead. It was maintained that the first act did not cause death, and that the second which did, was not accompanied by the mens rea of murder, although they could be guilty of manslaughter. The court refused to divide up what was in reality one transaction. The second act was dependent upon the first which in turn was carried out as a result of the prior planning. Church In Church (1966) similar reasoning was applied, although there was no antecedent plan. The appellant had taken a woman to his van for sexual purposes. He was apparently unable to satisfy her and she slapped his face. A fight ensued and he rendered her unconscious. He attempted to revive her for approximately 30 minutes but failed. He then panicked and threw her body into a nearby river. It was proved that she had actually died of drowning. The court applied the reasoning in Thabo Meli and held that there had been a series of acts culminating in the death of the victim - and held that the accused was guilty of reckless manslaughter. 2 Language Exercises 2.1 Criminal law terminology Read the passage below and then do the exercises based on it. English by lawyers for lawyers 7

8 When a crime is (1), the police will (2) the (3) as soon as possible. Following the arrest the (4) must be read to the suspect straightaway. Then the suspect must be conveyed to the police station for questioning. The suspect is entitled to (5) by a lawyer during the interview. He or she may be held for up to 24 hours in the first instance, and this period may only be extended on application to the magistrates court. At the expiration of this period the suspect must either be formally (7) with an offence or (8). If charged, the suspect may either be released on (8), or he or she may be (9) if the offence is serious enough. If the latter occurs, his lawyer is entitled to make an (10) before the magistrates court. If this application is successful, conditional or unconditional bail may be granted. Examples of conditional bail might be that the accused must reside at a particular address (such as a bail hostel) or submit to a (11). Typically, the (12) will involve several court hearings before final trial of the matter. At one of these preliminary hearings, the defendant will be required to (13). If he or she pleads guilty then his or her (14) will make a (15) to assist the court in deciding about (16). If the defendant maintains his or her innocence there will be a trial. At the trial, the (17) will first be (18). After that, prosecution counsel will open the case and evidence will then be heard from (19). Once all the evidence has been heard, both counsel will have the opportunity to make closing speeches to the court. The judge will then direct the jury to retire to consider their (20). Exercise 1: criminal law terminology Insert the terminology below in the correct places in the text above: a) jury b) charged c) remanded in custody d) curfew e) verdict f) sentencing g) enter a plea h) application for bail i) released j) plea in mitigation k) prime suspect l) arrest m) sworn in n) proceedings o) caution p) remanded in custody q) legal representation English by lawyers for lawyers 8

9 r) committed s) witnesses t) police bail u) counsel Exercise 2: words in legal contexts Total marks available: 10 Many words which are used in everyday language can have a different meaning when they are used in legal contexts. Use the items in italics in sentences (1) to (10) below (where they are used in their everyday context) to fill the gaps in the legal context sentences (a) to (j) which follow. 1) Most citizens prefer to live peacefully. 2) The hotel provides only bed and breakfast. 3) The barrister stood up and addressed the jury. 4) The letter was sent by express mail. 5) The police found new evidence. 6) I am afraid we only have instant coffee. 7) The Roman Emperors ruled a large part of Europe for several centuries. 8) It was a great relief to the parents when their daughter returned home safely. 9) He held his knife in his left hand. 10) The trousers are alright but the jacket does not fit. a) The problem of long delays in hearing cases will have to be. b) The prosecutor decided to charges against the suspect. c) The judge that the evidence was inadmissible. d) The Court of Appeal that the defendant was liable. e) The magistrates saw to punish the defendant with imprisonment. f) The judge decided that the precedent did not apply in the case. g) The statute for the compulsory wearing of seat-belts in cars. h) The defendant gave instructions to his lawyer. i) A majority of the Court of Appeal for the appellant. j) The judge refused to grant to the plaintiff. Exercise 3: true or false? Total marks available: 10 English by lawyers for lawyers 9

10 Are the statements set out below true or false? (1) The police are only allowed to hold a suspect for 24 hours without charging him or her. (true/false) (2) The police have final word over whether bail is granted to a suspect. (true/false) (3) Bail can be granted without a curfew attached as a condition. (true/false) (4) The first thing that happens at trial is that the jury are sworn in. (true/false) (5) The witnesses are heard after the closing speeches. (true/false) Total marks available: Problem words and phrases The sentences below all contain certain words or phrases that are incorrect in the context and should be replaced by a different word or phrase. Locate these words and phrases and substitute the correct terminology. Note that there is only one correct alternative in each sentence. 1) There were three defendants in court, all of who were charged with serious offences. 2) The company, that was based in Birmingham, became insolvent due to the managing director s fraudulent dealings. 3) The accused claimed that he did not break into the house he said that the door was non-locked, and he merely pushed it open and wandered in. 4) The judge is entitled to send you to prison for this offence, and it is quite likely that she can do so. 5) In accordance with the witness, the accused was not in the area when the crime was committed. 6) The defendant was shown to have lied to almost everyone specially his lawyer. 7) This legal principle derives solely from common law, and is therefore unstatutory. 8) We implied from the judge s words that she did not believe the evidence given by the witness. 9) There were less people in the public gallery on the second day of the trial than there had been on the first. 10) The witness alleged that the defendant was the man what she saw outside the building that night. Total marks available: 20 (1 for identifying the incorrect word or phrase, another for replacing it with the correct substitute) English by lawyers for lawyers 10

11 2.3 Vocabulary Read the following extract from a reference book on criminal law. Choose the best word or phrase to fill each gap from A, B, C or D below. In Callow v Tillstone (1900) a negligent (1) of a (2) by a veterinary surgeon had (3) in a butcher selling meat which was (4) for human consumption. The butcher had (5) the veterinary surgeon s certificate and would have had no reason to believe that he was in breach of the law. He was convicted on the basis that the (6) was one of strict liability. In other words, his knowledge of the condition of the meat and his (7) about its sale were held to be (8) he had in fact sold meat which was unfit for human consumption. The veterinary surgeon was charged with aiding and abetting the offence. To add to the butcher s misery, the veterinary surgeon who had certified that the meat was (9) had his conviction for aiding and abetting quashed because aiding and abetting required knowledge of the facts and an intention to encourage. Although he had been negligent in his examination of the animal it could not be (10) that he knew the meat was unsound. (1) (2) (3) (4) (5) a) examination b) study c) check d) registration a) piece of meat b) corpse c) cadaver d) carcass a) resulted b) ended c) eventuated d) concluded a) bad b) unfit c) unsuitable d) dangerous a) depended on English by lawyers for lawyers 11

12 b) trusted in c) relied on d) faith in (6) (7) (8) (9) (10) a) crime b) misdemeanour c) offence d) penalty a) beliefs b) plans c) intentions d) insights a) unpersuasive b) of no legal effect c) inadmissible d) irrelevant a) sound b) fresh c) edible d) safe a) demonstrated b) certain c) proved d) shown Total marks available: Case analysis Consider the scenario outlined below in the light of R v Miller (see notes above) and the note about the Criminal Damage Act 1971 contained in the given text. What points would tend to incriminate Cyril and what points can be made in his defence? Write a brief memo outlining the pros and cons of Cyril s position. Cyril goes to his local shop to buy a packet of cigarettes. As he leaves the shop he meets a friend and stops to talk to her. While doing so he lights a cigarette and throws the match away. After his friend leaves, Cyril notices that match has set light to some papers in the doorway of the shop. The shop is now closed so Cyril walks away. The fire spreads and causes considerable English by lawyers for lawyers 12

13 damage to the shop. Cyril has been charged under the Criminal Damage Act 1971 for damaging by fire a house... intending to do damage to such property or recklessly as to whether such property was damaged. Total marks available: 15 (answer to be marked by trainer) 2.5 Listening comprehension Listen to the criminal law audio file (Criminal.mp3) available from and then answer the questions below. Exercise 1 Choose the statement that fits best in relation to each question below. (1) Bill was at the Mason s Arms from 6pm onwards, and a) got quite drunk b) met a girl c) annoyed the people he was talking to d) punched the barman (2) The barman asked Bill to leave a) because Bill had become abusive b) because Bill had become violent c) because Bill called him a twerp d) because Bill had had too much to drink (3) Bill was seen by a couple sitting in a car in the car park a) leaving the pub b) smashing the pub windows c) taking a baseball bat out of the back of a red car d) walking back towards the bus stop (4) Bill s lawyer thinks that it is likely that Bill will be convicted if he pleads not guilty because a) everyone is against Bill b) there s no chance that anyone else could have smashed the windows c) the weight of evidence is against Bill d) the Volkswagen Golf was registered in Bill s name (5) Bill s lawyer advises that if Bill pleads guilty at an early stage a) his sentence will be lighter than if he pleads not guilty and loses b) he will avoid being sent to prison c) the jury will give him credit for that d) the judge will be fair with him Total marks available: 10 (2 per correct answer) English by lawyers for lawyers 13

14 Exercise 2 Look at the table below. Match the words and phrases used in the conversation (on the left of the table) with their formal equivalents (on the right of the table). WORDS AND PHRASES USED IN THE CONVERSATION FORMAL EQUIVALENTS stitch-up (1) upshot (2) argument (3) smashed in (4) convict (5) summarise (6) suggests (7) twerp (8) lighter (9) credit (10) less onerous (a) find guilty (b) silly or annoying person (c) indicates (d) broken (e) positive recognition (f) give a brief account (g) result/consequence (h) falsely blamed (i) dispute (j) Total marks available: 10 TOTAL MARKS AVAILABLE FOR MODULE: 100 English by lawyers for lawyers 14

15 Appendix 1: Listening Comprehension Script Client Interview Bill has been charged with an offence of criminal damage of the premises of a bar he went to one evening. His lawyer is advising him on the evidence. LAWYER: OK, Bill, good to see you again. How s everything? BILL (grunts): Alright I s pose. LAWYER: I ve got all the evidence now from the prosecution and I ve got to tell you the case against you is quite strong. BILL (suddenly animated): Yeah, those bastards have got it in for me. It s a stitch-up job. LAWYER: Maybe so, but let me summarise the evidence for you. BILL: Alright. Go on then. LAWYER: Well, the case against you is as follows. You were at the Mason s Arms on Tuesday 16 May from around 6pm onwards, had a few drinks, got talking to a few people and ended up quite drunk. Then towards midnight you got into an argument with the barman. Is that right so far? BILL: Yeah, the little twerp refused to serve me. Said I d had too much to drink already. Stuck-up little LAWYER (quickly): That s right. Anyway, the upshot was he asked you to leave, and you did so. This was around Agreed? BILL: Yeah, probably around then. LAWYER: OK, and a number of people who were in the bar have given statements saying they saw you leave around then. BILL: Yeah, whatever. LAWYER: And about two minutes later the windows at the back of the pub got smashed in. BILL: Nothing to do with me. LAWYER: I hear what you re saying Bill, but let me just finish. There was a couple who were sitting in a car in the pub car park who ve given a statement saying they saw you walk over to a red Volkswagen Golf, open up the boot, English by lawyers for lawyers 15

16 take out a baseball bat and walk back towards the pub. The police note that car is registered in your name. BILL (aggressively): So what? That s not evidence I did it. LAWYER (takes deep breath): Well, Bill. It s like this. Unless we can show a real possibility that someone else had a reason to smash those windows, was right there to do it, and had a weapon to do it, I can almost guarantee that pretty much whatever arguments we use on your behalf a jury is going to convict you, given the weight of evidence that suggests you must have done it. Now obviously if you re telling me that you really didn t do it, then of course we ll give the prosecutor the best run for his money we can manage. On the other hand, if you plead guilty at an early stage, you ll get a fair bit of credit for that from the judge and your sentence will be a fair bit lighter than if we fight it and lose. BILL (bitterly): See what I mean? They re all against me. English by lawyers for lawyers 16

17 Appendix 2: Answer Key 2.1 Criminal law terminology Exercise 1 Forum Legal (1) (r) (2) (l) (3) (k) (4) (o) (5) (q) (6) (b) (7) (i) (8) (t) (9) (c) (10) (h) (11) (d) (12) (n) (13) (g) (14) (u) (15) (j) (16) (f) (17) (a) (18) (m) (19) (s) (20) (e) Exercise 2 (1) (b) (2) (g) (3) (a) (4) (h) (5) (i) (6) (f) (7) (c) (8) (j) (9) (d) (10) (e) Exercise 3 1) false 2) false 3) true 4) true 5) false 2.2 Problem words and phrases 1) There were three defendants in court, all of who whom were charged with serious offences. 2) The company, that which was based in Birmingham, became insolvent due to the managing director s fraudulent dealings. English by lawyers for lawyers 17

18 3) The accused claimed that he did not break into the house he said that the door was non-locked unlocked, and he merely pushed it open and wandered in. 4) The judge is entitled to send you to prison for this offence, and it is quite likely that she can will do so. 5) In accordance with According to the witness, the accused was not in the area when the crime was committed. 6) The defendant was shown to have lied to almost everyone specially especially his lawyer. 7) This legal principle derives solely from common law, and is therefore non-statutory unstatutory. 8) We implied inferred from the judge s words that she did not believe the evidence given by the witness. 9) There were fewer less people in the public gallery on the second day of the trial than there had been on the first. 10) The witness alleged that the defendant was the man whom what she saw outside the building that night. 2.3 Vocabulary (1) (a) (2) (d) (3) (a) (4) (b) (5) (c) (6) (c) (7) (c) (8) (d) (9) (a) (10) (c) 2.4 Case analysis This exercise must be marked by a trainer. 2.5 Listening comprehension Exercise 1 (1) (a) (2) (d) (3) (c) (4) (c) (5) (a) Exercise 2 (1) (i) (2) (h) (3) (j) (4) (e) (5) (b) (6) (g) (7) (d) (8) (c) (9) (a) (10) (f) English by lawyers for lawyers 18