LEVEL 6 - UNIT 3 CRIMINAL LAW SUGGESTED ANSWERS - JUNE 2015

Transcription

1 Note to Candidates and Tutors: LEVEL 6 - UNIT 3 CRIMINAL LAW SUGGESTED ANSWERS - JUNE 2015 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 June 2015 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 a) S1(1) of the Criminal Damage Act 1971 (CDA) states that A person who without lawful excuse destroys or damages any property belonging to another... shall be guilty of an offence. This seems to suggest that there would be occasions where a person may have a lawful excuse which would exonerate him from criminal liability for causing damage. The lawful excuses applicable to the CDA are contained in s5. S5(2)(a) sets out that a defendant (D) may have a lawful excuse for the damage/destruction if, at the time of the act, D believed that he had or would have had the consent of the owner whose property was damaged/destroyed. Under this section D would also have a defence if he made a mistake due to intoxication. This defence has been successfully pleaded on several occasions. In the case of Denton (1982), D pleaded a defence under s5(2)(a) after setting fire to his employer s cotton mill stating that he thought that his employer had encouraged him to burn the mill so that he could make an insurance claim. The Court of Appeal (CA) quashed the conviction and held that he did have a valid defence. Similarly, in the case of Jaggard v Dickinson (1980) D thought she was at her friend s house. There was no one in so she broke a window to get in. She was drunk at the time and she had actually broken into someone else s house, not her friend s house as she thought. The Divisional Court quashed her conviction as she had a defence under s 5(2)(a) and 5(2)(b), in that she held a genuine belief (even though she was intoxicated) that she was breaking into her friend s house and that her friend would consent to the damage caused. Page 1 of 17

2 S5(2)(b) sets out that D may have a lawful excuse for the damage/destruction if the damage/destruction was done in order to protect property belonging to D or another. Strangely, the CDA does not provide a defence where D believes he is acting to protect an individual from harm. In Baker and Wilkins (1997) the Ds believed that Baker s daughter was being held against her will at a property. They damaged a door trying to enter the property and were convicted of criminal damage as the defence does not include damage done to property in order to protect a person. The other point for consideration, which relates to self-defence, is that in respect of criminal damage the defence is allowed when there has been a drunken mistake. The same cannot be said in respect of assault where a drunken mistake cannot be relied upon as a defence. In conclusion it could be said that the defences under s5 are almost fit for purpose subject to some minor amendments to include the availability of a defence for the protection of individuals and a possible change to s5(3) so that the court would be able to consider that state of belief that ought to have existed as opposed to D s actual state of belief. b) S1 (1) of the CDA defines the basic offence of criminal damage as A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence. The Actus Reus (AR) of the offence is the damage or destruction of property belonging to another. In Roe v Kingerlee (1986) it was held that the damage need only be slight and non-permanent, but A (a juvenile) v R (1978) says that it must require some effort to remove it. Any tangible property, including land, can be damaged - s10(1) CDA and there must be an owner or someone with a proprietary right over the property s10(2) CDA. The Mens Rea (MR) of the offence is intention or recklessness as to the damage/destruction caused. In respect of intention, by carrying out the act D must have intended to do the resulting damage. As far as recklessness is concerned, D should be aware that due to his actions a risk of damage exists and that it would be unreasonable to take the risk. S1(2) of the CDA defines the aggravated offence of criminal damage. The definition is the same as that of s1(1) with the addition of a further subsection s1(2)(b) which states that A person who without lawful excuse... intending by the destruction or damage to endanger the life of another or being reckless as to whether the life of another would be thereby endangered... The danger to life must come from the damage/destruction. In Steer (1987) it was held that the danger came from the shots fired by D not from any damage done to the property through the shots. In the case of Sangha (1988) it was held that life does not actually have to be endangered, but it must be proved that an ordinary bystander would have perceived that there was an obvious risk of damage to the property by his actions and that life would thereby be endangered. This case was decided using the Caldwell (1982) objective test for recklessness. The Caldwell test has now been overruled by R v G (2003) which introduced a subjective test for Page 2 of 17

3 recklessness in respect of criminal damage, based on the premise that the risk taken would be seen by the D to be unreasonable in the circumstances. Aggravated criminal damage differs in two ways from basic criminal damage; the first relating to the AR and the other relating to the MR of the offence. As far as the AR is concerned, the difference is that for the basic offence there is a requirement that the property that is destroyed/damaged belongs to another. For the aggravated offence, D can destroy/damage his own property but in such a way that the lives of others are endangered. The main distinction between the basic and aggravated offences lies within the MR. It is not enough that the D s act causes criminal damage and endangers life; D must intend or foresee that the criminal damage caused by him may endanger life. The MR has the same meaning as that in s1(1) which, in this case, means that the D either intended by the damage/destruction to endanger life or that he was aware both that there was a risk that the property would be damaged/destroyed and that life would be endangered. The difference between these offences is that s1(2) is much more serious than s1(1). This is illustrated by the sentences: s1(1) carries a maximum sentence of 10 years if tried at Crown Court and s(1)2 carries a maximum sentence of life imprisonment. S(1)2 is aggravated by the danger to life caused by the damage/destruction. Question 2 Murder and manslaughter are the two main homicide offences. These are both very serious offences and carry mandatory life sentences and discretionary life sentences respectively. The law of homicide has been governed by a mixture of common law and statute and has been developed in a piecemeal way, most of which is neither coherent nor systematic. The partial defences to murder of provocation (now loss of control) and diminished responsibility were developed in such a way and have led to a framework of offences which lack coherent structure. The Law Commission s (LC s) recommendations for reform involves converting the two current offences into three and provides a hierarchy of offences. The original definition of murder supplied by Coke in the seventeenth century is still cited today and is the unlawful killing of a human being in peacetime with malice aforethought. Over the years the common law has sought to clarify the meaning of some of the terms contained within the definition and statutory provisions have made amendments to the scope of murder, such as the Law Reform (Year and a Day Rule) Act The Homicide Act 1957 (HA) attempted to deal with the partial defences to murder but did not provide new definitions of murder or manslaughter and neither has the recently introduced Coroners and Justices Act 2009 (C&JA). The MR of murder is malice aforethought which has been defined as the intention to kill or cause GBH: Vickers (1957), Moloney (1985). This definition has developed over many years and at one stage was so widely defined that that it blurred the lines between intention and recklessness, and thus between murder Page 3 of 17

4 and manslaughter. Murder is deemed to be very broad in its scope as oblique intention is sufficient MR for murder as is an intention to cause GBH. Some may say that the scope of murder is too broad and its relationship with manslaughter is not always clear. Involuntary manslaughter is also a very broad offence. The MR for unlawful act/constructive manslaughter only requires that the reasonable man would foresee the risk of some harm and not that D foresaw a risk of death: Church (1966). This MR has always been subject to criticism as it equates cases which are not far short of murder with cases which would, ordinarily, be nothing more than assaults. Gross negligence manslaughter requires conduct so bad in the circumstances so as to amount to a criminal act or omission: Adomako (1995). Subjectively reckless manslaughter requires that D caused death with awareness that his conduct caused a highly probable risk of causing death or serious harm, provided that the level of risk foreseen was less than a virtual certainty (otherwise D would be liable for murder on the basis of oblique intention): Lidar (2000). Although subjectively reckless killing is arguably more culpable than killing by gross negligence, both are sufficient for manslaughter. This highlights the fact that the present framework of offences is incoherent. There have been several proposals for reform from the LC which recommend a grading structure of homicide offences which reflect different levels of culpability. The most recent is Murder, Manslaughter and Infanticide (Law com no November 2006). This supersedes Law Commission: A New Homicide Act for England and Wales; Consultation paper no. 177 (2005). The report proposes a 3 point structure: 1. First degree murder, which relates to the offence of murder as it currently stands save for the requirement that D would have to appreciate a serious risk of death. The partial defences to murder would still exist and if successfully pleaded would reduce D s liability to secondary degree murder; 2. Second degree murder, which encompasses voluntary manslaughter and what is currently reckless manslaughter with the exception that a D who successfully pleads a partial defence to second degree murder would not have his sentence reduced to manslaughter; and 3. Manslaughter, which encompasses what is currently unlawful act/constructive manslaughter and gross negligence manslaughter with slight changes. The proposed change to unlawful act/constructive manslaughter is that it would be based on a subjective test of D s foresight of at least a risk of harm as opposed to the present objective dangerousness test which is based on whether the sober and reasonable person would recognise the risk. There is no change to gross negligence manslaughter. In the main, the proposals have been welcomed by academics who agree with the restriction of the scope of murder and manslaughter and the creation of the three tier framework. It has also been said that the recommendations would make the offences more coherent in terms of labelling. Page 4 of 17

5 There have also been criticisms of the proposals. Under the recommendations mercy killing would be first degree murder as it would be an intentional killing. Some say that this is unfair and that the consent of the V should be recognised as a partial defence to murder. Murder and manslaughter are in need of reform since for the reasons set out above they are not currently fit for purpose. A more coherent framework of offences is necessary. Even though most academics welcome the proposals made by the LC, no decision has yet been made in respect of reform of this area. Question 3 The Coroners and Justice Act 2009 (C&JA) has made a number of changes to the partial defences to murder. The common law defence of provocation which was modified by statute under s3 of the Homicide Act 1957 (HA) has been replaced by the defence of loss of control which is contained in s54 and 55 C&JA. Under s3 HA where a person was charged with murder and was provoked to lose his self-control, the jury determined whether the provocation was enough to make the reasonable man do as he did. This established subjective and objective elements to the defence of provocation. The defence of provocation was often the subject of criticism and confusion. The subjective element stated that there must be some provocation together with a sudden loss of control, Duffy (1949). This was criticised for failing to protect women in abusive relationships. In situations where there was a delay between the provoking conduct and the killing, there was no guarantee that women in abusive relationships would be able to rely upon the defence. Quite often women in this situation would have to plead diminished responsibility. This was later addressed by Ahluwalia (1992) where it was accepted that a loss of self-control could also be a slow burn reaction as in cases of long term partner abuse. The objective element posed two questions: first would the reasonable man have been provoked? (gravity of provocation) and then would the reasonable man have lost control and acted as the defendant did? This meant that if the provocative conduct was directed at a characteristic of the defendant, that would be a characteristic which affected the gravity of the provocation and, therefore, that characteristic would be relevant to the reasonable man. The objective limb of the defence has caused the courts difficulties, particularly the reasonable man element of the defence. The different approaches taken by the courts are evident in the conflicting decisions in Smith (Morgan James) (2001) and Holley (2005). In the case of Smith (Morgan James) the House of Lords held that D s clinical depression was a characteristic that could be attributed to the reasonable person. This approach was criticised for being more subjective than objective. In Camplin (1978) D s age and sex were also relevant to the gravity of provocation. In the later case of Holley, The Privy Council declined to follow the decision in Smith (Morgan James) and held that the only characteristics to be taken into account were D s age and sex. The decision in Holley has also been preferred in the cases of James (2006) and Karimi (2006). Page 5 of 17

6 The reforms created by the C&JA were intended to redress the gender imbalance and to clarify the law, putting an end to the criticism and confusion created by the defence of provocation. Loss of control under s54(1) C&JA still requires a loss of self-control caused by a qualifying trigger; and that a person of his age and sex with the normal degree of tolerance and self-restraint circumstances of him, and of the same age and sex of him might have reacted in the same or similar way to him. The first element again is subjective and requires consideration of whether D actually lost self-control. Under s54(2) C&JA the loss of self-control need not have been sudden as in Ahluwalia. The removal of the requirement of suddenness was intended to protect those who had suffered years of cumulative abuse and may have snapped over a minor incident. S54(4) also provides that the defence will not apply if D killed the victim (V) in a considered desire for revenge: Ibrams and Gregory (1982). This means that loss of self-control cannot be apportioned to pre-planned killings even though D may have been provoked previously by V. The two qualifying triggers are set out s55 C&JA and are fear of violence or anger by things done or said (or both) in circumstances of an extremely grave character and caused D to have a justifiable sense of being seriously wronged. The first trigger is the fear trigger s55(3). This applies in situations where the loss of control was attributable to D s fear of serious violence from V against D or another: Pearson (1992). The second trigger is the anger trigger s55(4) which is attributable to things done or said (or both) in circumstances of an extremely grave character and caused D to have a justifiable sense of being seriously wronged: Camplin. This is similar to the previous defence of provocation but for the exception that the language used here is far more severe. This could seriously limit the application of the defence. Either of the qualifying triggers will be sufficient, or a combination of both of them: Humphreys (1995). Neither of them are clearly defined and will be left open to interpretation by the courts. S55(6)(c) states that sexual infidelity must be disregarded as a qualifying trigger. This was introduced to stop husbands who had killed unfaithful wives from relying upon the defence, as had happened under the old law: Davies (1975). The objective test remains under the new law; the test set down in Holley remains good law with the reasonable person being replaced with the ordinary person. The confusing thing about the new law is that characteristics has been replaced by circumstances. This makes it unclear whether facts such as those in Smith (Morgan James) would be covered under the new defence. It has also been argued that may have reacted in the same or similar way is quite vague and arguably more nebulous than the old law. Although the reforms introduced by the C&JA may have clarified the law in some respects, the defence of loss of control is itself open to criticism. Some might argue that in trying to redress the gender imbalance, the gender balance has been shifted too far by the new defence. Page 6 of 17

7 Question 4 Intention and recklessness are the two most important fault elements used in criminal law. As far as these two forms of Mens Rea (MR) are concerned, liability cannot be established without evidence as to what a person foresaw when he committed the acts which caused the prohibited results. Exactly what it is he had to foresee and how much foresight he must be shown to have had, goes to the core of the debate relating to whether the dividing line between different types of subjective MR has become blurred. Direct intention, was defined by Mohan (1976) as a person desiring to bring about the consequences of his actions, this was approved by Gillick (1986). The Criminal Justice Act 1967 (CJA) 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 was expected or foreseen and the more likely, therefore, it was intended by the person doing the act. This approach has been developed through caselaw and has become indirect/oblique intention. In Hyam (1975) it was held that a person intends a result which he forsees as a (highly) probable result of his actions; whilst Moloney (1985) held that foresight 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. The case of 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. The case of 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. The case of Matthews and Alleyne (2003) further confused the law in this area by stating that foresight of a consequence as a virtual certainty is merely 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. The difficulty for the courts in respect of the above cases was to decide which test should be applied in each particular case as this would impact on the direction that the judge gave to the jury prior to retiring. Intention is said to be the higher standard MR whilst recklessness is a lower standard MR. It has been suggested that the level of awareness or of probability of an outcome are the equivalent of intention. If the judge asked the jury to consider whether the outcome was a natural consequence (Moloney) of D s actions or whether he foresaw a high level of probability of its occurrence Page 7 of 17

8 (Hancock and Shankland) the MR was placed at the lower level and, as was stated by the House of Lords, blurred intention and recklessness. However, it is still uncertain whether juries can infer intention where there is less than virtual certainty. During the summing up in Woollin at first instance, the recorder told the jury that if they were satisfied that D realised there was a substantial risk of the consequence then they could find intention. The House of Lords later decided in this case that by using the phrase substantial risk the judge had erred in blurring the line between intention and recklessness and reaffirmed the virtual certainty test from Nedrick. The cases were decided on the level of awareness of the consequence of the act that D had, or must have had and whether the jury were entitled to draw inferences or whether they had a duty to draw inferences to enable them to decide if the outcome was intended. D must, therefore, have a very high degree of foresight before his actions could be labelled as intentional. Recklessness, by contrast, implies risk taking as opposed to D foreseeing a consequence as a certainty. 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 (1982). The question to be asked when considering objective recklessness is Would a reasonable man have recognised the risk? This was the standpoint until G and Another (2003) which changed the law in respect of the MR required for criminal damage which is now subjective recklessness. It is clear, therefore, that direct intention requires aim, purpose or desire of the consequences. This could not be confused with indirect/oblique intention or recklessness. Confusion does, however, arise between the definitions of indirect/oblique intention and recklessness. Subjective recklessness requires a minimal foresight of the result. The definition of indirect/oblique intention has been clarified with Woollin and Matthews and Alleyne that virtual certainty is evidence of intent and not equivalent to intention. Finally, the inclusion of foresight in cases where the MR was intention goes beyond aim, purpose and desire and it could be argued that this is a reason why the boundaries between indirect/oblique intention and subjective recklessness have become blurred. Page 8 of 17

9 SECTION B Question 1 Lee, Greg and Callum could all be charged with statutory conspiracy to commit actual bodily harm (ABH) contrary to s1(1) of the Criminal Law Act 1977 (CLA 1977). The reason they would be charged with this offence is due to the injuries caused to Jamal namely a swollen lip and a black eye and the agreed intention to cause ABH 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 assault Jamal. 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 assault 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 assault did take place and Jamal suffered immediate and unlawful personal violence the AR and MR of ABH are satisfied and all three are guilty of a conspiracy to commit ABH. Lee and Greg both assault Jamal and are, therefore, joint principals: Macklin and Murphy s case (1838). They are both the direct cause of the AR of ABH which is defined as an assault which interferes with the comfort of the victim and is more than transient or trifling: Miller (1954) and T v DPP (2003), which also requires an injury: Chan-fook (1994). They also have the relevant MR which is defined as the intentional or reckless infliction of unlawful violence upon someone: Savage;Parmenter (1991). Thus they will be charged jointly as principals to the ABH contrary to s47 of the Offences Against the Person Act 1861 (OAPA). The AR and MR of ABH are satisfied as they assaulted Jamal with the intention of causing him unlawful violence or being reckless as to whether he would suffer unlawful violence. Callum may not be a principal offender in respect of the assault. However, he may be convicted as a secondary party to the assault. There are two offences with which he could be charged in this regard. Firstly, he could be charged with aiding, abetting, counselling or procuring the assault contrary to s8 Accessories and Abettors Act 1861 (AAA 1861). Presence alone at the scene can be sufficient to abet a crime if Callum s presence provided encouragement in fact and he intended to provide encouragement with his presence and was combined with the culpable mental element: Clarkson and others (1971), Wilcox v Jeffrey (1951). Callum s presence at the scene would satisfy the elements of abetting as he knew and agreed to be part of the assault on Jamal and was voluntarily and purposely present at the scene immediately prior to the assault: Coney and Others (1882), Wilcox v Jeffrey (1951). It is also clear that Callum knew of the circumstances which constituted the offence: Johnson v Youden (1950). Secondly, he could be charged with ABH contrary to s47 OAPA 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. Page 9 of 17

10 Under the doctrine of joint enterprise Callum could also be found guilty of assault even though he did not perform the AR of ABH. He is likely to be convicted on the basis that he embarked on a joint enterprise with Lee and Greg and they all acted in pursuance of a common purpose, ABH. The final issue to be considered in respect of Callum is whether he effectively withdrew from the joint enterprise when he ran away from the scene. 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 Callum tried to withdraw from the assault after it had begun, he is required to do more than merely communicate his intention to play no further part in the joint enterprise to Lee and Greg. He did communicate his withdrawal but he did not try to stop the assault, consequently his withdrawal was not effective and he would be held liable for assault under the doctrine of joint enterprise. When Lee stabbed Jamal he departed from the common purpose and became the principal offender in respect of grievous bodily harm (GBH) contrary to s18 OAPA. He performed the AR of the offence by unlawfully causing a wound or GBH to Jamal and he had the MR for the offence as he intended to cause GBH to Jamal: Vickers (1957). Greg and Callum could also be liable for GBH as secondary parties. The key issue is whether Greg and Callum had the requisite degree of foresight in respect of the GBH to be held liable for the GBH under the doctrine of joint enterprise. Greg and Callum could be liable for GBH if either of them foresaw that Lee might cause GBH to Jamal after the initial assault: Powell and Daniels; English (1997). They may also be liable if the court finds that they foresaw that Lee may do an act that could lead to death or GBH: Rahman and others (2008). There is no evidence that Greg and Callum foresaw the GBH because they believed Lee had stayed to check that Jamal recovered. The fact that Lee stabbed Jamal after both Greg and Callum had left and neither of them knew he was carrying a knife, means that Greg and Callum would not be liable under the doctrine of joint enterprise for the GBH caused to Jamal. In conclusion, all three would be liable for conspiracy to commit ABH. Lee would also be liable for GBH, Greg would be liable for ABH and Callum may be liable for abetting ABH and/or ABH on the basis of joint enterprise. Question 2 a) Leonie has been charged with constructive/unlawful act manslaughter. There are potentially three defences that may be available to Leonie in this case, they are automatism, intoxication and insanity. For Leonie to be able to rely on the defence of automatism she would have to be able to show that an external factor resulted in involuntary conduct by her, where she was not at fault. Automatism must relate to external factors and to temporary disturbances which cannot be related to any notion of disease. In Quick (1973), Lawton LJ observed that Quick s mental condition was not caused by his diabetes but by his use of Page 10 of 17

11 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. Automatism requires a fundamental and not merely partial loss of control of movement: Broome v Perkins (1987), Bratty (1963). This means that the automatism must be of such a degree that D cannot be said to have performed the AR voluntarily. It would be for the defence to prove on the balance of probabilities and with supporting medical evidence that Leonie was suffering from automatism at the time of the offence. A successful plea of automatism would lead to a complete acquittal. Unfortunately, Leonie would be unlikely to succeed in a plea of automatism due to the fact that her actions were caused by internal factors (bipolar disorder and sleepwalking) as opposed to the required external factor for this defence. She may, however, try to say that her level of intoxication was the external factor that caused her to be an automaton. This would also fail as in the case of Quick (1973) it was decided that self-induced automatism due to voluntary intoxication would not negate criminal liability for crimes of basic intent. The reason for this is that the person was reckless in getting into an automatic state in the first place so they would not be allowed to plead the defence of automatism for an offence where the MR is recklessness. She may try to rely on the defence of intoxication. We are told that Leonie was taking medication for her bipolar disorder and that she knew that she should not drink alcohol. We are also told that she has a history of sleepwalking after drinking alcohol. She was aware of all of these points and her intoxication would have been voluntary at the time of the offence. She was also reckless in allowing herself to become voluntarily intoxicated due to her underlying condition. Constructive/unlawful act manslaughter is a basic intent offence and the rules laid down in Majewski (1976) state that voluntary intoxication is a reckless course of conduct in itself and is sufficient to constitute the relevant MR for basic intent offences. This defence is unlikely to be successful. The final defence that Leonie may be able to rely on is the defence of insanity at the time of the commission of the offence. The definition for insanity is founded on the M Naghten Rules (1843) and their subsequent interpretation by the courts. To satisfy the defence of insanity Leonie would have to be able to prove that on the balance of probabilities she was suffering from a defect of reason caused by a disease of the mind and that she did not know the nature and quality of her act or that it was wrong, and that she was insane at the time of the commission of the offence. The disease of the mind must be internal to D: Sullivan (1984). In the case of Burgess (1991), it was held that sleepwalking was an abnormality or disorder, albeit transitory, due to an internal factor. In the case of Kemp (1957), it was held that a disease of the mind must affect the cognitive or intellectual capacities of the mind in the sense of reasoning, memory and understanding. The case of Hennessey (1989) found that hyperglycaemia due to diabetes was a disease of the mind together with epilepsy: Sullivan, sleepwalking: Burgess, schizophrenia, clinical paranoia, and manic depression to name but a few. Page 11 of 17

12 A defect of reason means an impairment of D s powers of reasoning as opposed to a failure to use such powers: Clarke (1972). 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 the defence of insanity if he did not know the act was legally wrong, even if he knew it was morally wrong. Leonie can supply medical evidence to support her claim that she suffers with bipolar disorder. This could be deemed to be a disease of the mind and an internal factor: Sullivan (1984). For a plea of insanity to be successful she must also be able to show that either she did not know the physical nature of the act she was doing, or that she did not know that the act was legally wrong. If Leonie is successful in her plea of insanity, the result would be a verdict of not guilty by reason of insanity and could lead to either a supervision order, a hospital order or an absolute discharge. b) Marcus has been charged with GBH. The defence available to Marcus is selfdefence which requires the consideration of the concept of reasonable force used due to a mistaken belief. Marcus 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). 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. Self-defence is a common law defence which permits a person to use reasonable force in protection of himself or others if he honestly believes the use of force is necessary: Rose (1884), Duffy (1967), Palmer (1971). The issue with this defence is usually whether the force was reasonable in the circumstances. The evidence indicates that Marcus was alarmed and was motivated in his actions by a desire to defend himself from any further physical assault; he was neither looking for a fight nor was he motivated by any desire for revenge. Mistake of fact occurs in situations where, if the facts had been as D believed them to be, he would have had a defence. In Albert v Lavin (1981) it was held that a mistaken belief in the necessity for self-defence would only excuse if it was reasonable. The case of Beckford (1988) contradicted the aforementioned decision as it was held that the reasonableness or unreasonableness of D s mistake is material only to the credibility of the assertion that he made the mistake. If the mistaken belief was, in fact, held, its reasonableness is irrelevant: Jaggard v Dickinson (1980). Even if Marcus was mistaken in his belief that he was going to be further assaulted, he is entitled to be judged on the circumstances that he genuinely believed to exist: Williams (1987), Owino (1995). A jury should be objective in deciding whether Marcus s actions were reasonable. It would have to consider whether Marcus honestly believed that it was necessary to defend himself and, if so, on the basis of the facts and the danger perceived by Marcus was the force used reasonable? If the jury answers yes to both points then it must acquit Marcus of GBH. Page 12 of 17

13 However, if it accepts that, whilst his actions were to protect himself, but that he went beyond the use of reasonable force then Marcus would have no defence under common law: Clegg (1995). The assault on Simon clearly involved the commission of an offence. The issue for the jury will be as to whether the force used by Marcus was reasonable in the circumstances. The burden of proof would be on the prosecution to prove that the actions of Marcus were not reasonable in the circumstances. Question 3 Rashid could be liable for a number of offences in this scenario. Theft - the perfume Under s1 of the Theft Act 1968 (TA) 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. 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. Perfume is property under s4 and it belonged to another the shop. For the purposes of the offence of theft, s2(1) TA specifies three instances of states of mind which, as a matter of law, are to be regarded as honest. None of these would apply to Rashid s case. Next we must consider Ghosh (1982) which provided a positive aspect to the determination of dishonesty. The Ghosh test has two limbs. The first, objective limb requires the jury to consider whether the honest and reasonable person would regard what D did as dishonest. Only if the answer is yes to this question can the second limb be considered. The second, subjective limb requires the jury to question whether D himself realised that the honest and reasonable man would regard what he did as dishonest. Only if the answer is yes, to both the objective and subjective questions, can D be found to be dishonest. Rashid s conduct is likely to be dishonest according to the Ghosh test because the honest and reasonable person would regard taking perfume from a shop as acting dishonestly. 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). Rashid s intention was to give the perfume to his mother as a birthday present. Rashid would be liable for theft contrary to s1(1) TA. Attempted Burglary the till Under s1(1) Criminal Attempts Act 1981 (CAA) to be guilty of attempting to commit an offence a person must perform an act which is more than merely preparatory to committing the offence, intending to commit the offence and Page 13 of 17

14 intending to bring about the result, and knowing that the surrounding circumstances would be in existence or was reckless as to this. The CAA requires an act to be more than merely preparatory to the commission of the crime: Gullefer (1990), Jones (1990), Litholetovs (2002), Tosti (1997), Moore (2010). When Rashid tried to open the till, he did an act which was more than merely preparatory as the only part of the act left was to steal the money. Unbeknown to Rashid, the till was empty so the law on attempting the impossible must be considered. Under s1(2) of CAA a person may be guilty of attempting to commit an offence, even though the facts are such that the commission of the offence is impossible: Shivpuri (1987), Jones (2007). In this case, there was no money in the till to steal so commission of the full offence would have been impossible, however, if Rashid had the requisite MR to carry out the substantive offence he may be guilty of attempted burglary of the till. The MR for an attempt is an intention to commit the full offence and recklessness in respect of any circumstances surrounding it: Khan (1990). Therefore, it did not matter whether Rashid knew that the till was empty or not. The fact that he intended to commit burglary was sufficient for the offence. Rashid would be liable for attempted burglary under s1(1) CAA. Burglary - the charity box Under s9 of the 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 GBH or to cause criminal damage when D entered the premises. On the facts provided Rashid entered the shop with the intention of potentially buying some perfume. Whilst he did not intend to steal the charity box when he entered the store, it could be argued that the intent to steal became present when he went in to the till area with the intention to steal the money from the till and that intent could be applied to the theft of the charity box. That being the case he could be liable for burglary contrary to s9(1)(a) TA Rashid knew that he was trespassing because even though he had permission to be in the shop, he exceeded that permission by entering a part of the building for which he did not have permission, namely, the area behind the tills: Collins (1973), Walkington (1979), Jones & Smith (1976). Having entered the area as a trespasser, he did steal property belonging to the shop. There is no requirement of prior 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. As far as s1 TA 1968 is concerned, he did enter the area behind the tills and once there he appropriated a charity box which belonged to shop. He was dishonest in the appropriation and he intended to permanently deprive the shop by keeping the charity box. Rashid would be guilty of the burglary of the charity box contrary to s9(1)(b) TA. Page 14 of 17

15 Criminal Damage the china The final offence to consider is criminal damage, contrary to s(1) of the Criminal Damage Act 1971 (CDA). The situation here relates to the basic offence under s1(1) CDA. The AR is that without lawful excuse D s conduct destroys or damages property belonging to another. The MR is where D intends or is reckless as to destroying or damaging the property. He would not have the defence of lawful excuse under s5(2): Denton (1982), Appleyard (1985) and Jaggard and Dickinson (1980) as he could not possibly believe that the store manager would consent to him damaging the china. The damage caused to the china is permanent and the store manager may be able to claim compensation off Rashid for the losses incurred. Rashid intentionally destroyed the china whilst trying to evade capture by the store assistant. He will be liable for an offence of criminal damage contrary to s1(1) CDA. Question 4 This question requires consideration of Robert s potential liability in respect of the death of Iwan. As Iwan has died Robert could be potentially liable for murder/involuntary manslaughter. Robert could only be found liable for the murder of Iwan if he had the requisite intent to kill or cause GBH: Woollin (1998). This would require at least an awareness that serious injury: Cunningham (1957) was virtually certain: Woollin (1998) to result from him pushing Iwan in the back. A push is likely to cause injury, but it is not likely that Robert would have foreseen serious injury. Therefore, it is unlikely that Robert would be liable for murder, this also means that voluntary manslaughter would also not be an option. The relevant offence here in respect of Robert would be involuntary manslaughter. The offence was defined in the case of Larkin (1994) where it was held that to satisfy the offence of unlawful/dangerous act/constructive manslaughter, there must be an intentional act, which is unlawful, objectively dangerous and which causes death. It is clear from the facts that there has been an assault which resulted in the death of Iwan. The criminal act here is battery contrary to s39 of the Criminal Justice Act 1988 (CJA 1988). Both the AR and MR of the criminal act must be established. Robert intentionally or recklessly: Venna (1975) Savage; Parmenter (1991) inflicted personal violence on Iwan: Rolfe (1952). Iwan did not give Robert permission to assault him therefore the contact was both physical: Ireland; Burstow (1998) and unlawful. Robert carried out an unprovoked assault on Iwan. He intentionally pushed Iwan, which means he intended to inflict unlawful violence on Iwan. This would be a sufficient base act to support a charge of unlawful/dangerous act/constructive manslaughter. The assault was an unlawful and dangerous act: Church (1965), Watson (1989) and Newbury and Jones (1976). When he pushed Iwan, Robert did not intend to harm Iwan, but he should have realised that there was the risk of some harm to Iwan albeit not serious harm. Page 15 of 17

16 The chain of causation seeks to provide rules that balance legal and moral culpability so that there isn t endless liability for linked consequences. We must now consider causation and whether there was a break in the chain of causation. Involuntary manslaughter is an offence for which there must be a result. It must be proven that Robert s conduct caused Iwan s death both in fact and in law. Factual causation is the but for principle: Pagett(1983), White (1910). But for Robert s actions Iwan would not have died, this is true. Legal causation is only considered if factual causation has been proved. Factors to be considered are, there must be a culpable act, the conduct must be significant and have more than a minimal effect in bringing about the result: Cheshire (1991) and the sequence of events does not affect legal causation from being established. There can be more than one cause. The conduct doesn t have to be the sole cause of death, just one of the causes. Other causes can include pre-existing conditions, whether medical: Dear (1996), Carey and others (2006) and/or religious: Blaue (1975). This is known as the thin skull rule. A novus actus interveniens or a new intervening act could also break the chain of causation. We are told that Iwan s death was instantaneous so there is no need to consider these any further. Applying the above to the facts in this case, causation both in fact and in law is present here. Whilst he did not intend to hurt Iwan, Robert was reckless when he pushed him and could reasonably have foreseen that some injury would occur: Cunningham (1957). Robert would therefore be liable for involuntary unlawful/dangerous act/constructive manslaughter in respect of Iwan. Robert may be able to mitigate his position by pleading the defence of either self-defence or intoxication. Robert may be able to plead self-defence in respect of the initial assault on Iwan. He would have to convince the jury that when Iwan took his arm to assist him in leaving the pub, he genuinely believed that he would be assaulted: Williams (Gladstone) (1987). Self-defence can be considered under both common law (private defence) and/or possibly statute (public defence). 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 Iwan was trying to coax Robert to leave the pub. We are also told that Iwan was gentle in his handling of Robert and not aggressive in any way. The attack on Iwan clearly involved the commission of an offence. The issue will be whether the force used by Robert was reasonable in the circumstances. The burden of proof would be on the prosecution to prove that the actions of Robert were not reasonable in the circumstances. If it is decided that the force used by Robert was excessive, then the defence will fail. Robert will either be convicted or acquitted. In this case, the defence will almost certainly fail as Robert was not in danger of being assaulted by Iwan so there was no need to use any force at all as there was no need to protect himself. Page 16 of 17