INSTITUTE OF LEGAL EXECUTIVES CRIMINAL LAW EXAMINER S REPORT AUTUMN 2007

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1 Subject 23 INSTITUTE OF LEGAL EXECUTIVES CRIMINAL LAW EXAMINER S REPORT AUTUMN 2007 Comments on Overall performance There were some very good responses to some of the questions, but the standard of exam performance was mixed. The issue of poor time management affected candidates performance. It was not unusual for candidates to leave too little time for the fourth question, or even not do a fourth question at all. Pleasingly, the allocation of the burden of proof (Woolmington) was rarely mistaken. There were, however, centres where all candidates failed, and where scripts contained no, or very little, relevant case law. General Advice to Candidates In your revision, learn the law AND the relevant authority AT THE SAME TIME. Let the cases guide your knowledge and understanding. It is hard work, but find time to practise writing exam question answers in timed conditions to reflect on what you can write (and how well) in a mere 45 minutes. If you then mark it yourself, a few days later, you will learn a lot about your exam technique (use these examiner s reports too). Underline case names please. Question 1 PART A (a) (i) Section 18. The actus reus should be established quickly. X has caused (the question makes this clear) really serious harm (Smith) and HIV+ was confirmed in Dica to be sufficiently serious. The mens rea is less likely though. X s lies to Y may affect her capacity to give informed consent to sex (Dica) but are unlikely to mean he aimed for her to get HIV+. Even if we were to use Woollin (and its application outside murder is, of course, moot), it is unclear that he foresaw causing GBH as a virtually certain outcome. If the actus reus and mens rea were proved, however, the fact that Y consented to sex is irrelevant to liability - consent is no defence to intentional harm s. 18 (Dica and Brown). (ii) Section 20. The actus reus is given as above; and the mens rea is not difficult to prove from the evidence. He has been warned to use condoms and inform his sexual partners. Failure to do so must surely mean he foresaw some harm Page 1 of 8

2 ( maliciously, Mowatt) might occur. Uninformed consent is no consent. Dica is the key case here and according to the Court of Appeal, the law centres around knowledge. Knowledge and consent are not synonymous, but consent without knowledge is unlikely to be valid. According to Mukadi as well, Y clearly did not consent to the risks associated with unprotected sexual intercourse, and X is therefore liable. (iii) Section 47. Even though liability for section 20 has been found, the question asks for an examination of section 47 as well. In order to succeed on this charge, the prosecution would have to prove that there was an assault (by battery) occasioning (which is given) and ABH (which is also given; if it is GBH, it is at least ABH, Miller, Brown). The question will be whether X intended to apply or was reckless in the application of force (Venna) which was unlawful. There is no case law exactly on point here. On the one hand, Brown says a person cannot consent to ABH, but does that mean there is a battery or not? One case may assist; Tabassum (the case where D touched women s breasts) where the notable feature was the quality of the act as opposed to its nature. By analogy, therefore, the failure to inform Y of his HIV+ status may change the act of sex, to sex of a different quality in law, and it there may therefore be a battery. (b) In the alternative. The section 18 outcome would not change. Whether the actus reus and mens rea have been established or not, Dica provides consent is no defence. What would change, however, is the outcome in sections 20 and 47; a person can, according to Dica (but not Brown) consent to the risk of infection even with a disease as serious as HIV+ provided the person is informed of the risks. Some analysis between the conflict in the authorities was expected. Surprisingly few students mentioned consent at all. This meant those students did not identify the main issue in the question. The time and effort put into revising the actus reus and mens rea of the sections was time wasted. Consent is a very important area of law and students cannot simply learn Brown, and may be Wilson, and expect to do well. Dica has been around for long enough that students should be well aware of the judgment and its effect. The question was broken into 4 parts. The answers should also be broken into 4 parts. Most candidates did so; and it does assist us when we are marking. Question 2 The charge is murder. The actus reus is causing the death of a human being. The only issue was whether A was the cause of S s death. To be a cause, both the but for and the legal test must be used. But for A s act, S would not have died (cf. White) so A is the factual cause of death. In legal terms, provided his act was a more than nominal cause, it need not be the sole cause (Kimsey). This is established as the book spine hitting S on the head was a more than nominal contribution to death. Causation is then dependent on whether anything broke the chain. Page 2 of 8

3 First, was the tutor s inability to help a free, deliberate and informed act? Latif and Paggett suggest it might not be (she is a trained not a professional first aider) and even Empress Cars (recently of course restricted to its facts, see Kennedy HL) would suggest it is not unusual for a first-aid trained teacher to panic. This, therefore, would probably not break the chain of causation. The acts of K and L should be considered in light of the facts and decision in Smith, and clearly would not be sufficient to break the chain, but the doctor s negligence in misreading the scan might be viewed as so potent, independent etc. per Cheshire, Jordan that the chain of causation would be broken. Provided the law was well explained, it did not matter whether the student concluded it did or did not break the chain as this is a matter of fact, it therefore cannot be wrong. On these facts, turning off the life-support machines is not a break in the chain of causation, Malcherek. The mens rea of murder is intent to kill or intent to cause GBH (Moloney). GBH is defined as really serious harm. We are told that A intended to cause harm, but it unclear how much. If not serious harm, the charge of murder fails. If it is serious harm, then we must deal with the fact that A intended to cause M that harm, but the charge is murder of S. It is possible to transfer his mens rea from Mark to Sheila using Latimer. There is no question of oblique intent here. The marks given reflected the number of (relevant) causation cases explained and applied, and the ability to argue whether the mens rea was established and could be transferred. A full range of case-law on causation, however, appears not to be known. Most candidates know Smith, Jordan and Cheshire, but there was not much else. Failure to mention transferred malice (but not necessarily the cases) was rare, but it did prevent the high marks. One major error here was discussing manslaughter rather than murder. The question specifies the charge. Candidates ignore it at their peril! Another was to ignore the medical negligence causation cases (above). Three points must be emphasised: 1. Adomako is not a case about causation. It is the authority for gross negligence manslaughter. 2. Medical negligence may break the chain of causation, but it does not have to be Adomako negligence. 3. The doctor s liability was not asked for. Question 3 Theft is a given. The question actually specifies that R stole the cigarettes. That means theft does not have to be established. The question also states that P died and R intended to cause P serious harm (Moloney). Murder needs no further consideration. Page 3 of 8

4 Accordingly, the answer is on the likelihood of the defence of duress succeeding. First, was R compelled by D s threat to act as she did, and did she have good cause to fear death or GBH otherwise? Second, would a person of reasonable firmness have done the same thing (Martin, Howe, Hasan)? The threats that D would tell G about her nasty secret are almost certainly insufficient alone (Valderama-Vega), but what of the threat to her prettiness? This could certainly be regarded as a threat to cause GBH. A further issue arises; is the crime nominated (Cole)? Initially it seemed to be, but then R could have bought the cigarettes, rather than steal them. Better to be in debt, than commit a crime. The next issue is that of imminence/immediacy, which is one for the jury (Hudson and Taylor cf. Hussain, Hasan) but D does specific the next day. Finally, as D is a known violent criminal, the recent decision in Hasan works against R where some previous case law might have allowed her the defence; is her duress self-inflicted through her gambling addiction? If so, the defence fails. Finally, we must consider if there are relevant elements to apply to the objective test. Case law suggests that characteristics of pliancy and vulnerability (Horne, Hegarty) are not be relevant, but a recognised mental illness (R has only mild learning difficulties) might be, Bowen. Of course, as for the availability of the defence, she cannot plead duress to murder, Howe, and although it is available per se to theft, on the facts as stated it is unlikely to succeed. Candidates either spent far too long establishing the offences (which as can be seen here should be mentioned only briefly) or ruled out duress for R s association with D, a known criminal, and did not provide more than the most basic reasoning, briefly. The conclusion is not wrong in law, but in terms of exam technique, it is not best practice. To maximise marks, students must show knowledge and understanding across a range and to a depth. The marking was reasonably generous on the offences despite the question making it clear they were established, and we also gave some credit where there were only brief references to duress, but we had to ignore all other defences, especially insanity, which cropped up again and again with no hint of a disease of mind in the question. Question 4 Sunglasses A has appropriated (Morris, Gomez) the sunglasses which are property (tangible) belonging to another (the shop) and clearly has intention permanently to deprive (Velumyl). She is obviously Ghosh dishonest (if she weren t she would have paid full price!). A nice, straightforward theft started the question off. Page 4 of 8

5 Lipstick This is an appropriation as she has assumed a right of the owner. The lipstick is property and it also belongs to the shop. She must have intention permanently to deprive of the part used. There is the slimmest possibility of a section 2 (belief that the owner would consent), but that would work only if the lipstick was a sample, so this is not likely. She is Ghosh dishonest. This is theft. Necklace This is a case of theft by finding. The honest appropriation of property cannot be theft (explain section 2(1)(c)) but where a defendant later becomes dishonest (here where A sees the postcode and decides to keep the necklace anyway), section 3 of the Theft Act provides that a later appropriation of property, originally appropriated without being stolen, is appropriated where the defendant keeps the property or otherwise deals with it as owner. Overpayment The issue here is not whether there is an appropriation, as there clearly is per Gomez and Hinks, but whether the property belongs to another. The extra pay is in A s control (section 5(1)) so it cannot be stolen except for the provisions of section 5(4); property obtained by mistake is regarded as against her as belonging to the employer. Candidates were able to state the Ghosh test correctly and also applied it logically. The most common mistakes/omissions were a failure to consider section 2 on the necklace, and/or section 5 on the overpayment of the wages. Even where the Ghosh test was explained correctly and well applied, omitting both of these elements typically resulted in a mark of between 40-45, which we feel was often far lower than the student was capable of, had they learnt the whole topic of theft, not just Gomez on appropriation and Ghosh on dishonesty. Question 5 PART B The meaning of the word intention should be clear, but it is not. Where a defendant has a single aim or purpose, the word does not lead to jury confusion, but where the defendant has multiple aims or purposes, or perhaps a justifiable, or if not justifiable, understandable, motive, the jury may struggle to find intention. This is a reasonably straightforward question on the difference between direct and oblique intention, and the degree of foresight required where no direct intent (aim, purpose) can be found. Very strong students also considered whether the question is one of fact or law. Key authorities include Smith, section 8 CJA 1967, Hyam, Moloney, Hancock & Shankland, Nedrick, and of course Woollin. As Lord Steyn held the effect of the critical direction is that a result foreseen as a virtual certainty is an intended Page 5 of 8

6 result. Post-Woollin cases are expected as a matter of course including Re A and Matthews. Many candidates cannot define oblique intent and/or get the wrong decision in a particular case (for example by stating the ratio decidendi of Moloney was whether D foresaw the outcome as a virtual certainty ). Question 6 Only the first part of the title is correct. Duties can arise where, for example, in a relationship (Gibbins and Proctor), where the defendant assumes responsibility for another (Stone and Dobinson, Nicholls, Instan cf. Khan and Khan) or creates a dangerous situation (also called the supervening fault principle, Miller, Santa- Bermudez), but in none of these situations does liability depend on proof of endangering the general public. The second part of the title is only correct where criminal liability arises for failure to perform a contractual duty (Pittwood) and possibly where the duty arises out of a public office (Dytham). Candidates were able to list the categories of duty, and show a reasonable knowledge of the case facts. Too few considered the extent to which liability arises once a duty is found in law or where the failure to act endangers the public. Again, many candidates examined only the manslaughter cases and we repeat; there is more to omissions than manslaughter. Question 7 In essence, the Law Commission proposes there should be two main categories of homicide retaining the terms murder and manslaughter. Murder would, however, be split into two; murder in the first degree and murder in the second degree. This is described as the ladder of offences; murder 1 at the top rung, murder 2 in the middle, and manslaughter at the foot. Murder 1 will alone carry the mandatory sentence in the ladder, that of life imprisonment. It will be satisfied where a defendant kills with intent to kill, or with intent to cause serious injury where the defendant was aware of a serious risk of causing death. Murder 2 would be committed where; 1. the defendant kills with an intention to do serious injury; or 2. the defendant kills intending to cause some injury, or a fear of injury or a risk of injury, plus has an awareness of a serious risk of causing death; or Page 6 of 8

7 3. the defendant kills and the crime would be first degree murder but he successfully raises a defence of provocation, diminished responsibility or killing pursuant to a suicide pact. Manslaughter will also carry a discretionary life sentence, but would be the least serious homicide offence under the proposals. It would consist of three types: 1. Causing death by a criminal act intended to cause injury; or 2. where the defendant was aware that a criminal act involved a serious risk of causing injury; or 3. gross negligence as to causing death. It is suggested that as the Law Commission proposals had attracted so much attention in texts and journals candidates should be broadly familiar with the provisions in the proposals and how (if at all) they would improve the current law (common law and under the Homicide Act 1957). Question 8 Voluntary Intoxication The Majewski rules are to the effect that voluntary intoxication is not a defence, but if the defendant is charged with a specific intent crime and he lacks mens rea, he is entitled to an acquittal (theft) or the charge is reduced to the basic intent alternative (e.g. section 18 OAPA to section 20). If the defendant is charged with a crime of basic intent, the prosecution does not have to prove mens rea. Non-insane automatism If the defendant is an automaton (Hill v Baxter etc) and is charged with a specific intent crime, irrespective of fault, he is not guilty, but if the defendant is charged with a crime of basic intent, he may be guilty if the prosecution proves he was Bailey reckless in becoming an automaton. SI and BI Candidates had to show that the distinction is vital, as without it the defences fail to operate. So, what is the distinction and how is it defined? Case law peculiarly fails to assist; Beard, Morgan, Majewski, Caldwell; is it all in the wording of the charge or is it a principled approach? The recommended textbook covers this is the required detail (see syllabus). Where students did not recite the tests on SI and BI from the key cases, but simply listed which offences are specific intent and which are basic, credit was given, but only if students were able to apply the listed offences to the rules on the defences; but if that was done well, the higher marks were available. Page 7 of 8

8 EXAMINATION STATISTICS Candidates Sitting: 145 Percentage Passing: 41% Distinctions Achieved: Institute of Legal Executives Page 8 of 8