LEVEL 6 - UNIT 3 CRIMINAL LAW SUGGESTED ANSWERS JANUARY 2016

Transcription

1 Note to Candidates and Tutors: LEVEL 6 - UNIT 3 CRIMINAL LAW SUGGESTED ANSWERS JANUARY 2016 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 2016 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) Strict liability refers to offences where the offence does not require proof of Mens Rea (MR) for at least part of the Actus Reus (AR) but the AR must be proven and the defendant s (D s) conduct must be voluntary in performing the AR. Strict liability offences can be common law offences or they can be statutory offences. Under common law, strict liability is very rare and only applies to a small number of offences namely public nuisance, some forms of criminal libel and outraging public decency: Whitehouse v Gay News (1979), Gibson and Sylviere (1991). In contrast, there are hundreds of strict liability statutory offences and most of them are regulatory in nature. There is a presumption that an offence requires MR: Sweet v Parsley (1969), B (a minor) v DPP (2000), but the judiciary are willing to interpret the offence as one of strict liability if there are no words indicating the MR in the statute. The Gammon Criteria as set down in the case of Gammon (Hong Kong) Ltd v Attorney-General of Hong Kong (1984) illustrates the judicial reasoning employed by judges when deciding whether an offence is one of strict liability or not. The starting point is that there should be a presumption of MR before a person can be convicted of a criminal offence. The presumption can be displaced by clear words in the statute or by necessary implication: R v K (2001). It can also be displaced where the issue is one of social concern: Blake (1997), and when it can be shown that strict liability will be effective to promote the objectives of the statute: Muhamad (2003). The presumption is particularly strong where the offence is truly criminal i.e. serious Page 1 of 15

2 crimes, crimes with long sentences and crimes carrying a stigma on conviction: Howells (1977). There are a number of regulatory offences which are aimed at consumer protection and are interpreted as being offences of strict liability. In Callow v Tillstone (1990), it was held that the selling of meat unfit for human consumption was an offence of strict liability, this was so, even though the meat had been certified by a vet. There have also been a number of other cases which involved a regulatory offence being interpreted as an offence of strict liability: Cundy v Le Cocq (1884), Gammon (1984), Harrow LBC v Shah and Shah (1999), and Alphacell Ltd v Woodward (1972). Therefore, strict liability is typically used in less grave offences where no MR is required for at least part of the AR and the penalty quite often is a fine. This is because most strict liability offences are regulatory in nature. When the court decides that an offence is one of strict liability, it makes the process of dealing with that offence quicker and more straightforward.this is because the prosecution is relieved of having to prove MR and there is also no evidential burden on D to prove that he acted without fault. This has the effect of not clogging up the court system. The imposition of strict liability can be justified as strict liability offences help to protect society in general by the regulation of activities involving potential danger to public health, safety or morals. It encourages higher standards in respect of hygiene when processing and selling food and it ensures that businesses are run properly. Enforcement of the law should be more straightforward as there is no need to prove the MR and this in turn could lead to more early guilty pleas thus saving court time. In some statutes there is the inclusion of a due diligence defence although this area is very haphazard, as in the case of Harrow LBC where there was a section in the statute to allow a due diligence defence for promoters of the lottery but not for those managing businesses where the lottery is sold. The alternative of this argument is that the imposition of strict liability cannot be justified as it imposes guilt on people who are not blameworthy in any way. Even those who have taken all possible care can be punished as in Harrow LBC and Callow. There is no evidence to support the argument that strict liability improves standards in respect of hygiene when processing and selling food or that it ensures that businesses are run properly. Strict liability offences that are punishable by imprisonment would be contrary to the principles of human rights as absence of proof of fault contravenes the presumption of innocence. b) Gross negligence manslaughter refers to a situation where a death has occurred due to a grossly negligent breach of a duty of care involving a risk of death. The elements that satisfy criminal liability in this situation are that there has to be an existence of a duty of care, a breach of that duty which causes death and D s behaviour is grossly negligent and goes beyond civil liability: Adomako (1995). As far as the duty of care is concerned the meaning is the same as in civil law: Caparo v Dickman (1990), the three stage test. There are a number of situations that could impose a duty to act, duty under contract Pittwood (1902), Adomako (1995), voluntary assumption of care Stone and Dobinson (1977), duty of landlord to tenant Singh (1999), duty of driver to other road users Page 2 of 15

3 Andrews (1937), Wacker (2003), and duty of a captain of a ship to his crew Litchfield (1998). The breach of duty could be a positive act or an omission and D would be judged against the standard of a reasonably competent person performing the duty involved. A breach of duty per se may not always lead to criminal liability even if D is responsible for the person s death. It was decided in Adomako (1995) that something more should be required to satisfy criminal liability and this had to be conduct so bad in all the circumstances as to amount to a criminal act or omission. Prior to this, in Bateman (1925), Lord Hewart CJ explained gross negligence as going beyond a matter of mere compensation showing such disregard for the life and safety of others as to amount to a crime. This was followed by Andrews (1937) in which gross negligence was described as a very high degree of negligence. These tests were considered unsatisfactory as they were circular, in that, the jury were directed to convict if they thought a crime had been committed. Adomako remains the leading case in this area. Gross negligence relates to nothing less than a risk of death: Misra & Srivastava (2004). It could be said that there is a need for criminal sanctions that can be applied to situations where a breach of duty of care is so bad that D deserves to be punished over and above the civil remedies that would ordinarily be available. This does not mean that everyone who is in a position where they owe a duty of care could be liable for a criminal offence. The important element of this offence is that D s conduct must be so negligent that it should be characterised as criminal. Question 2 To determine whether there is an overlap between the defences of diminished responsibility, insanity and automatism we first have to look at the definitions applicable to each defence. The definition of diminished responsibility can be found in s2 of the Homicide Act 1957 (HA), as amended by s52 of the Coroner s and Justice Act 2009 (C&JA),which 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. To successfully plead a defence of automatism D would have to show that an external factor resulted in his conduct being involuntary, as a result of a total lack of control, and that he was not at fault. Except for automatism, these defences relate to D s mental state at the time of the commission of the offence. Diminished responsibility can only be pleaded as a defence to murder, whereas insanity and automatism are general defences and Page 3 of 15

4 can be pleaded to any crime. The defences all have different results. If diminished responsibility is pleaded successfully it can reduce a charge from murder to voluntary manslaughter. A successful plea of insanity will lead to a qualified acquittal and a successful plea of automatism will lead to an acquittal. It is necessary to consider whether there is an overlap between these defences as they would appear to be quite different. Diminished responsibility and insanity have similarities and can be said to overlap as both require an internal condition of the mind. For diminished responsibility the condition is an abnormality of mental functioning. The case of Byrne (1960) sets out that for a defence of diminished responsibility, responsibility is the key. In this case D felt an irresistible urge to act as he did (killing a number of women) and even though he knew the nature and quality of the act was wrong, he could not help himself. It was held that whilst he had understood what he had done, he was not responsible for his actions due to an abnormality of mental functioning. Contrast this with insanity which requires a disease of the mind and where the nature and quality of an act relates to an awareness of its physical nature and quality not its moral quality. Codere (1916) and Johnson (2007) confirmed that the key to a defence of insanity was D s understanding of his actions. 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. It could be said that the defences of insanity and automatism also overlap as, for both defences, D has to have 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. 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 internal defect the diabetes itself. Insanity appears to overlap with both diminished responsibility and automatism. This could cause confusion as they all require proof of a lack of mental responsibility. There are obvious similarities between the defences but each has radically different outcomes for the defendant. Question 3 The issue which has caused concern here is that the courts cannot be seen to condone drunken behaviour which results in the commission of an offence by allowing a D to escape liability due to intoxication. Therefore, intoxication is said not to be a defence per se, but evidence of intoxication may be sufficient to negate the MR of an offence: DPP v Majewski (1977). Page 4 of 15

5 Majewski is the leading authority on voluntary intoxication and sets down the principles in respect of voluntary intoxication which is known as the Majewski Rule. Simply put, the rule states that voluntary intoxication is no defence to crimes of basic intent, but it may be a defence to crimes of specific intent if D lacks the requisite intention for the offence. The decision taken in Majewski has been criticised for a number of reasons. The difference between basic intent offences and specific intent offences has never been clearly defined but they are distinguished by the MR of the offence committed. A basic intent offence can be committed intentionally or recklessly, whereas a specific intent offence can only be committed intentionally. This means that a voluntarily intoxicated D will automatically be reckless and will therefore have the MR for every basic intent crime. A more recent approach in relation to basic intent offences was taken in Aitken and others (1992) where the D pleaded intoxication to a basic intent offence and the jury were directed to ask themselves whether D had appreciated any risk that he would have appreciated had he been sober. This approach was also followed in Richardson and Irwin (1999). In relation to specific intent offences, intoxication can be a complete defence if it was found that the D was so intoxicated that he was incapable of forming the requisite MR and that there was no basic intent alternative to the offence committed such as theft: Beard (1920). If a D is intoxicated but still able to form the requisite intent for the offence, he will still be liable for the offence as a drunken intent is still an intent: Sheehan & Moore (1975). The same applies to a person who forms the intention to commit a specific intent offence when sober and then becomes intoxicated to give himself Dutch courage to carry out the offence. He cannot rely on the defence of intoxication: A-G for Northern Ireland v Gallagher (1963). The decision in Majewski has also been criticised for compromising the principles of law for reasons of public policy. A fundamental principle of criminal law states that for a D to be convicted of an offence there has to be a guilty act (AR) which has to coincide with a guilty mind (MR). The Majewski rule ignores this principle as according to the rule, a D who voluntarily becomes intoxicated is automatically reckless. This means that the MR is formed when D becomes intoxicated, which is prior to the AR of the offence being committed. It could also be argued that the presumption that a D who is voluntarily intoxicated must also be reckless, contravenes s8 of the Criminal Justice Act 1967 (CJA1967) which requires a D to foresee the result of his actions by reference to all the evidence. In respect of the Majewski rule it could be said that the principles above have been compromised in the interest of policy considerations the courts being seen not to condone drunken behaviour. However, the policy aims that the rule was designed to tackle remain problematic in cases where there is no lesser basic intent offence of which to convict the D. In the report entitled Intoxication and Criminal Liability, Law Com No. 314 (2009), the Law Commission (LC) proposed that whilst the distinction between Page 5 of 15

6 specific intent and basic intent offences should remain, the terminology should be dropped. It also proposed a number of fault requirements where the prosecution would have to prove the state of mind regardless of D s intoxication, which would also incorporate the approach in Richardson. To date none of the LC s proposals have been incorporated and the defence of voluntary intoxication could be said to be in an unsatisfactory state. The criticisms of the Majewski rule are well founded as it compromises the fundamental principles of criminal law in the name of public policy and provides an unclear and confusing manner of distinguishing offences which is inappropriate for today s offences. Question 4 It has proved difficult to define with clarity a general test in respect of the AR of an attempt. The main problem has been identifying the point at which the act intended to result in the commission of an offence, changes from being merely preparatory to an attempt in law. The offence of attempt is regulated by the Criminal Attempts Act 1981 (CAA). S1(1) of the CAA states that, If, with intent to commit an offence to which this section applies, a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence. The AR requires D to commit an act which is more than merely preparatory to the commission of the offence. This is usually a question of fact for the jury and the test is to look forward and decide whether D s act has gone further than the preparatory acts. Prior to the CAA there were a number of common law tests which looked backwards from the complete substantive offence to determine whether D s actions were immediately connected to the AR of the substantive offence which would then justify the imposition of liability for an attempt. The proximity test looked backwards from the substantive offence to determine whether D s acts were immediately connected to the AR of attempt: Eagleton (1855). This test was criticised as being narrowly construed by some judges, resulting in unjustified acquittals. The reason for the criticism was because D s who had got very near to the commission of the offence but had not quite reached the last act prior to the commission of the offence would be acquitted: Robinson (1915). The Rubicon test was formulated in the case of R v Stonehouse (1978), where it was decided that when D took out a life insurance policy for his wife s benefit and then faked his own death, his acts were proximate enough to the complete offence and were capable of amounting to an offence of attempt as D had crossed the Rubicon and burnt his boats. This test was followed after the introduction of the CAA by Widdowson (1986). Whilst the above cases took the last act approach there were some cases that took a different approach which was based on Stephen s Digest of Criminal Law (1894). Stephen devised the series of acts test which defined an attempt to commit a crime as an act done with intent to commit that crime, and forming part of a series of acts which would constitute its actual commission if it were not interrupted. This approach was followed in Hope v Brown (1954), Davey v Lee (1968) and Boyle and Boyle (1987). Page 6 of 15

7 The test was modified in Gullefer (1990) which determined that the elements of proximity, rubicon and the series of acts test should be used together. According to this test, D has committed an attempt when he has embarked upon the crime proper. This approach was agreed in Jones (1990). The above approach should be contrasted with the case of Campbell (1991), where the Court of Appeal (CA) quashed the D s conviction for attempted robbery on the basis that a number of acts remained undone, despite the fact that D was arrested outside a post office and was equipped to commit a robbery. The most recent test, and the one generally followed, is that set down in Geddes (1996) where it was decided that an act would be more than merely preparatory if there was acceptable evidence to show that D was actually trying to commit the substantive offence. This approach has been applied in Tosti and White (1997) and in Nash (1998). There have been considerations for reform in this area. In a paper entitled Conspiracy and Attempts: a Consultation Paper (Law Com CP no.183, 2007), the Law Commission (LC) recommended replacing s1 CAA with two new offences:- a) Attempted crimes; and b) An offence of criminal preparation. These proposals were abandoned by the LC in 2009 as it was decided that the offence generally works well in practice and that there was no need for reform. It is clear that the introduction of the CAA has done little to clarify the AR of an attempt, in particular, an act which is more than merely preparatory to the commission of the offence. An understanding of the AR of the substantive offence is crucial, as the legislation does not provide a general test which is capable of uniform application. The question of whether the AR of an attempt is satisfied must still be determined on a case-by-case basis. Question 1 SECTION B The question requires us to consider the criminal liability, if any, of Viktor. Broken window When Viktor broke the window to gain entry into the school he may be guilty of causing criminal damage under s1 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 local council would consent to him damaging the school. The damage caused to the school is temporary and could be rectified by the local Page 7 of 15

8 council at their own expense: A v R (1978), Hardman and another (1986). They may be able to claim compensation from Viktor. Viktor deliberately and intentionally broke the window to gain entry into the school. He was obviously intending to damage the window. Viktor will be liable for an offence of criminal damage under s1(1) CDA. Burglary and theft of computers Under s9 of 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 GBH or to cause criminal damage when D entered the premises. We are told that Viktor entered the school with an intention to steal; that being the case, he would be liable for burglary under s9(1)(a) TA. In this case Viktor knew that he was trespassing as he did not have the permission of the local council to be inside the school: Collins (1973). Having entered as a trespasser, he did steal personal property belonging to the owner. 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. Viktor also satisfied s1 TA, as he entered the school and, once inside, he appropriated property which belonged to the local council, with the intention to permanently deprive the local council of the property by selling it to buy drugs. To satisfy the MR for theft the Ghosh test must be applied to show that he was dishonest. In Ghosh (1982) a two limbed test was established and both limbs must be satisfied to prove dishonesty. Firstly was D s appropriation dishonest according to the ordinary standards of reasonable and honest people? This is the objective element and only if the answer to this question is yes would you proceed to the next limb: was D aware that reasonable and honest people would regard this appropriation as dishonest? This is a subjective test and if the answer is yes then D is dishonest. In this case Viktor s behaviour is definitely dishonest. Viktor would be guilty of burglary contrary to s9(1)(a) and s9(1)(b). He would also be guilty of theft under s(1) TA. Threats against the police officers This could constitute common assault contrary to s39 of the Criminal Justice Act 1988 (CJA). Common assault is an act by which a person intentionally or recklessly causes another to apprehend immediate, unlawful personal violence. There does not have to be any contact, the offence can be committed using words alone: Constanza (1997). Silence can also amount to an assault: Ireland (1998). The MR for an assault is either an intention to cause another to fear immediate unlawful personal violence, or recklessness as to whether such fear is caused Page 8 of 15

9 Applying this to the facts, the officers might well have apprehended immediate, unlawful personal violence as Viktor had aimed his gun at the officers and had threatened to shoot them if they tried to enter the building. Whether Viktor intended to carry out the threat or not doesn t matter. By threatening to shoot the officers, Viktor was reckless as to whether he had caused the officers to fear immediate personal violence or not. Viktor could be guilty of common assault contrary to s39 CJA. Death of Shanay Here we must consider Viktor s potential criminal liability for Shanay s death. Viktor has caused the death of Shanay in both fact and law. There is no evidence of anything that would suggest a novus actus interveniens (intervening act) which would break the chain of causation. The first offence to consider would be murder. The definition of murder is the unlawful killing of a human being with malice aforethought. There is no problem here with the AR being satisfied as Viktor caused the death of Shanay. In order to support a charge of murder the prosecution will have to establish that Viktor intended to kill Shanay or intended to do her some GBH: Moloney (1985), Woollin (1998), Vickers (1957). It does not matter that Viktor intended to shoot the police officer as under the doctrine of transferred malice, the MR in relation to one victim can be transferred to another as long as the MR remains the same: Latimer (1886) Mitchell (1983). Malice can be transferred irrespective of whether Viktor succeeds in committing the MR against his intended target, the police officer. In this case the AR of the crime was directed at the police officer but was transferred to Shanay when Viktor shot her as the MR remained the same. The same logic applies to the other potential offences as discussed below. The prosecution could also consider involuntary manslaughter, in particular, unlawful/ dangerous act/ constructive manslaughter. It is clear from the facts that there has been an assault which resulted in the death of Shanay. Firing the gun was an unlawful and dangerous act: Church (1965), Watson (1989) and Newbury and Jones (1976). When he shot Shanay, it could be said that he did not intend to hurt her but his actions were at least reckless and he could reasonably have foreseen that some injury would occur: Cunningham (1957). Viktor could therefore be liable for involuntary unlawful/dangerous act/ constructive manslaughter in respect of Shanay. Taking all of this into account Viktor could potentially be charged with the murder of Shanay if it can be shown that he intended to cause serious harm to the police officer when he shot at him. This intent was then transferred to Shanay. At the very least he could be charged with involuntary manslaughter as his behaviour was at least reckless in firing the gun. Question 2 This question requires consideration of offences that can be committed contrary to the Fraud Act 2006 (FA). a) In respect of the false statement made to the newspaper, Jamelia could be charged with fraud by false representation contrary to s2 FA. Page 9 of 15

10 The AR for s2 FA requires that Jamelia made a false representation: Barnard (1837). She did this when she told the local newspaper that a famous chef would be working in her restaurant. The MR requires that Jamelia knew that the representation was or might be untrue or misleading under s2(2)(a) and (b): Cornelius (2012). As Jamelia has never even met the chef, she knew that the representation was untrue. As proof of dishonesty is required, the Ghosh test must be applied. The honest and reasonable person would certainly regard Jamelia s conduct as dishonest and Jamelia should realise this. Finally consideration would have to be given as to whether Jamelia intended to make a gain for herself or another or cause loss to another s2(1)(b): Gilbert and others (2012). Under s5(2)(a) gain and loss extend only to gain and loss of money or other property. In this case, by making the false statement to the newspaper, Jamelia is hoping to gain financially by encouraging people to use her restaurant. b) In respect of his personal use of the football club funds, Ahmed could be charged with fraud by abuse of position under s4 FA. Whilst abuse and position are not defined under the FA, it is likely that the offence will apply because, as treasurer of the club, Ahmed occupies a position in which he is expected to safeguard, or not to act against, the financial interests of another person under s4(1)(a) FA: Doukas (1978). S4(1)(b) requires an abuse of that position: Gale (2008). Ahmed abuses his position when he uses some of the funds to pay for his holiday. The MR requires proof of dishonesty by abuse of position (s4(1)(b)) and the application of the Ghosh test. The honest and reasonable person would certainly regard Ahmed s conduct as dishonest and Ahmed should realise this. Ahmed also intends to make a gain for himself by the abuse of his position. Ahmed is likely to be guilty of fraud by abuse of position in relation to the football club funds. Ahmed could also be charged with fraud by failing to disclose information contrary to s3 FA. By making the declaration, he is not only making a false representation, but is also failing to disclose the heart attack that he had a year earlier. The AR of this offence requires that D fails to disclose information which he has a legal obligation to disclose, in this case Ahmed s heart attack and his continuing use of medication. The MR requires that Ahmed is dishonest and has an intention to make a gain or cause a loss, in this case his aim is to obtain travel insurance and at a lower cost. Following the steps set out in a), Ahmed could also be charged with fraud by false representation contrary to s2 FA as he made a false representation that the he has no medical problems. He knows that the representation is untrue and he will gain by obtaining travel insurance and at a lower cost. Ahmed is also dishonest as he knows that he does have ongoing health problems but does not acknowledge them. Therefore Ahmed is also likely to be guilty of fraud by failing to disclose information and fraud by false representation. c) In respect of her use of the false bus pass, Ella could be charged with obtaining services dishonestly contrary to s11 FA and fraud by false representation contrary to s2 FA. The AR for s11 requires that Ella obtained services which are not paid for or not paid for in full: Nabina (2000), Rai (2000). When she uses the bus pass she obtains the services of the bus for her journeys every day; she has not paid for the journeys so the AR is satisfied. Page 10 of 15

11 The MR requires that in obtaining the services she acted dishonestly, knowing that the services are, or might be, made available on the basis that payment has been, or will be, made for them and she did not intend to pay for the services. When she got on the bus she knew that the service had been made available on the basis that payment would be made for the journey and she had no intention of paying as she intended using a false bus pass. Applying the Ghosh test, the honest and reasonable person would regard Ella s conduct as dishonest. Ella should also realise that her conduct is dishonest as she is using someone else s bus pass to pay for her bus travel. Ella is likely to be guilty of obtaining services dishonestly in relation to her use of the bus pass. Following the steps set out in a), Ella also makes a false representation that the bus pass is legal and is hers. She knows that the representation is untrue and she will gain by not paying the fare and the bus company will lose by her not paying the fare. Ella is also dishonest as she knows that the bus pass is not rightfully hers but she still uses it. Therefore Ella is also likely to be guilty of fraud by false representation. Question 3 Injuries caused to Sally s buttocks In respect of the injuries caused to Sally s buttocks by Phil s use of his belt as a whip, Phil could be charged with assault occasioning actual bodily harm (ABH) contrary to s47 of the Offences Against the Person Act 1861 (OAPA). S47 OAPA is the intentional or reckless infliction of unlawful violence upon someone without consent: 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). When Phil whipped Sally s buttocks it was an assault. The injuries sustained by Sally were abrasions, bruises and severe soreness to her buttocks. This would constitute an injury which was more than transient or trifling and would interfere with her comfort. Phil should have been aware that there was a risk that his actions towards Sally could cause him injury. Phil is likely to be charged with this offence. S20 and s18 OAPA should also be considered. S20 OAPA is the unlawful and malicious wounding or inflicting of GBH upon any other person, either with or without any weapon or instrument. GBH means serious harm : Smith (1961), Wood (1830) and Bollom (2004). There must be foresight (or intention) of causing some harm: Mowatt (1968) S18 OAPA is the unlawful and malicious, by any means whatsoever, wounding or causing any GBH to any person with intent to do GBH. The AR of the offence is the same as that for s20 OAPA.The difference lies in the MR of the offences. For a s20 offence there must be an intention or recklessness as to some harm. For a s18 offence there must be a specific intention to cause GBH; this makes s18 a more serious offence. Page 11 of 15

12 The injury sustained by Sally would probably not be an assault contrary to s20 or s18 OAPA as the level of harm is not serious enough, unless the collection of minor injuries is seen as collectively serious: Brown and Stratton (1997). Whilst Phil s actions could be seen as reckless there is no evidence that he intended to cause her GBH. Silent phone calls and presence at Sally s home Both of these could constitute assaults contrary to s39 of the Criminal Justice Act 1988 (CJA). Common assault is an act by which a person intentionally or recklessly causes another to apprehend immediate, unlawful personal violence. There does not have to be any contact, the offence can be committed using words alone: Constanza (1997). Silence can also amount to an assault: Ireland (1998). The MR for an assault is either an intention to cause another to fear immediate unlawful personal violence, or recklessness as to whether such fear is caused Applying this to the facts, if it can be proven that Phil is responsible for making the silent phone calls he could be guilty of an assault as it was held in Ireland that silent phone calls were a form of positive communication as the defendant, in that case, intended his silence to communicate a threat. Whether Phil intended the silent calls to be a threat or not doesn t matter. The positive communication that he made to Sally means that he was reckless as to whether he caused Sally to fear immediate personal violence or not. In respect of standing outside Sally s window, this could also be an assault if his presence there caused Sally to apprehend immediate, unlawful violence: Smith v Chief Superintendent of Woking Police Station (1983). In Smith it was held that although the D was outside the window, the victim (V) was frightened by his conduct as she did not know what he would do next, but that it was likely to be of a violent nature. Sally was frightened when she saw Phil outside and if she feared that he was there to cause her harm, he could be guilty of an assault, whether he intended to cause her to fear immediate personal violence or not. When he stood outside Sally s house and knocked the window he was reckless as to whether he caused Sally to fear immediate personal violence or not. Grabbing Sally s arm The next offence to consider in respect of Phil is Battery contrary to s39 CJA. Phil intentionally or recklessly: Venna (1975), Savage; Parmenter (1989) inflicted personal violence on Sally by grabbing her arm: Rolfe (1952). Sally did not give Phil permission to assault her, therefore the contact was both physical: Ireland; Burstow (1998) and unlawful. Phil carried out an unprovoked assault on Sally. He grabbed her by the arm, which means that he intended, or was at least reckless, as to causing unlawful violence. There is no suggestion of any resulting injury, therefore Phil is likely to be found guilty of battery contrary to s39 CJA in respect of the unprovoked assault on Sally. Possible defence The only possible defence that Phil could plead in order to avoid liability would be consent. The general rule is that consent can only provide a defence for assault Page 12 of 15

13 and battery and will not provide a defence for ABH or GBH unless there is good reason: Attorney General s Reference (No. 6 of 1980) (1981). The case of Bree (2007) addressed the issue of whether a voluntarily intoxicated victim (V) could consent to sexual activity with another. In that case, it was held that as long as the V was capable of choosing whether to participate in sexual activity and had agreed to do so, that would amount to free, valid and informed consent. There are exceptions to the general rule which are relevant to this situation. For example, surgery and tattooing would support a good reason, as would branding: Wilson (1997). In the case of Wilson the court compared the act of branding to tattooing, which is rendered lawful by consent. The court also held that consensual activity between husband and wife in private should not be prosecuted. In respect of the injuries to Sally s buttocks, Phil may want to use Wilson to support his argument. The prosecution could argue that the injuries inflicted in that case were not for sexual gratification as they were in Sally s case. The prosecution would compare Phil s conduct to that in Brown (1994) and would ask the court to refuse the defence of consent for reasons of public policy and public protection. The fact that Sally had had one or two drinks would not invalidate her consent to Phil whipping her, as long as she was still capable of making the decision to participate: Bree. We are not told that Sally was drunk or incapable so we must assume that she was capable of consenting to Phil whipping her. Phil would have no defence in respect of the silent phone calls and his presence at Sally s house, but he may have a defence of implied consent in respect of the battery on Sally. The law dictates that we impliedly consent to physical contact in everyday life: Collins v Wilcock (1984), where touching someone to get their attention was held to be everyday contact. The general rule is that consent can be a defence to assault or battery: Donovan (1934), A-G s Reference (No 6 of 1980) (1981). These are both offences which require no proof of any harm being caused to the victim. Given the circumstances of this case, it would not appear that Phil would be able to use the defence of implied consent in relation to the battery on Sally. Question 4 Nia s potential liability and defence/s Theft the mobile phone 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. The mobile phone is property under s4 and it belonged to another the girl in the park. Page 13 of 15

14 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 this offence. 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. Nia s conduct is likely to be dishonest according to the Ghosh test because the honest and reasonable person would regard taking a phone from a stranger s bag 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). Nia s intention was to give the phone to Lola for Lola to keep it. Nia is likely to be charged with theft of the phone. The defence of duress of threats may be available to Nia. To successfully plead a defence of duress of threats the defence must be able to adduce evidence that the threat was of serious personal injury or death: Hudson and Taylor (1971), DPP v Rogers (1998), the threat must be towards D or a member of his immediate family or some other person for whose safety D would regard himself responsible: Wright (2000), the threat must be immediate: Hasan (2005) not imminent, D must take advantage of any reasonable opportunity to escape or to raise the alarm: Gill (1963), D should seek police protection if possible: Hudson (1971). The defence is not available if D just reacted to the threats and the threat must be one that the ordinary man could not have resisted: Graham (1982). D s belief in the threat must be reasonable: Nethercott (2001), Safi and others (2003), and that belief must have given him good cause to fear the consequences threatened. An objective test will also be applied which is, if the ordinary person sharing the same characteristics as D would have resisted the threats, the defence is unavailable: Hegarty (1994), Horne (1994), Bowen (1996). If D voluntarily associates himself with a violent criminal gang, the defence will fail, for this reason: Hasan (2005). A successful plea of duress of threats will result in a complete acquittal. In this case the subjective limb of duress appears to be satisfied as the threat to slash Nia s face is sufficient to support a defence of duress: Wright (2000), Hasan (2005), as it could leave a scar which would be regarded as a serious injury. However, a further requirement is that the threat must be of immediate harm to Nia so that she would be unable to take evasive action. They are in the park together so there does not seem to be an opportunity to escape. Page 14 of 15

15 Applying the objective, two stage test from Graham clearly Nia felt compelled to act as she did and it is possible that a sober person of reasonable firmness would act in the same way were they threatened with a knife. Whilst Lola has forced Nia to steal the phone, there is no evidence that she is part of a gang. This means that Nia could be successful in her use of this defence. Theft - the car In relation to her taking the car, Nia did appropriate it and assumed the rights of the owner by driving it, the car did not belong to her. The problem here would be whether she intended to permanently deprive the owner of the car and whether she was dishonest in her actions. Under s6 TA 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). Under s2 dishonesty is defined by what is not dishonest; which includes if D believes he would have the owner s consent to the appropriation. The question will be whether they honestly believe in that consent had the owner known about the circumstances; to which the Ghosh test may guide a jury. In her defence, Nia could say that she thought that the owner would have allowed her to use the car in the circumstances and that she had intended to return the car. If this is accepted she would not be guilty of theft. Alternatively, she could also say that she took the car out of duress of circumstances. To successfully plead a defence of duress of circumstances, like duress of threats, there must be a threat of immediate death or serious injury towards D or to someone for whom D feels responsible: Hasan. Unlike duress of threats, D s actions can arise from feeling threatened by surrounding circumstances and commits the offence because it seems to be the only way to avoid the threat that he faces: Willer (1986), Conway (1988), Shayler (2001). D s actions must be a reasonable and proportionate response to the threat of death or serious injury: Martin (1989), the threat of death or injury must come from an external source: Rodger and Rose (1998) and D s conduct can only be excused whilst the threat exists: DPP v Jones (1990), DPP v Bell (1992). In this case, given that Lola has already threatened to slash Nia s face with a knife, it could be found that her actions in taking the car were reasonable and proportionate to the threat that she perceived from Lola and Mike. She was obviously scared of what they may do to her and, to Nia, taking the car was the only way of getting away from them and avoiding the threat she felt Lola and Mike posed to her. Page 15 of 15