CHIEF EXAMINER COMMENTS

Transcription

1 CHIEF EXAMINER COMMENTS WITH SUGGESTED ANSWERS JUNE 2018 LEVEL 3 UNIT 3 CRIMINAL LAW Note to Candidates and Learning Centre Tutors: The purpose of the suggested answers is to provide candidates and learning centre tutors with guidance as to the key points candidates should have included in their answers to the June 2018 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 candidates may have included in their responses to the questions. Candidates will have received credit, where applicable, for other points not addressed by the suggested answers. Candidates and learning centre tutors should review the suggested answers in conjunction with the question papers and the Chief Examiners comments contained within this report which provide feedback on candidate performance in the examination. CHIEF EXAMINER COMMENTS Overall performance was very good. Section A was in the usual format and presented no problems to most candidates. Section B answers were generally very competent, with the majority of candidates choosing Scenario 1. Candidates should remember to cite the full title of a statute before using the initialism to gain a mark. While the year of cases is not required for a mark, the correct year of a statute is, together with the relevant section and subsection. Scenario 2 was fairly popular amongst candidates with the better prepared achieving high marks. However, a good percentage of candidates failed to recognise the offence as gross negligence manslaughter and then became lost when discussing duty and causation. Scenario 3 was not very popular, but those who did attempt it either achieved good marks or failed completely. As in previous papers, some candidates Page 1 of 11

2 chose questions pertaining to murder but failed to sufficiently revise loss of control as a defence. The change in law from the Ghosh test to that found in Ivey v Genting Casinos (2017) was mentioned by only a handful of candidates. CANDIDATE PERFORMANCE FOR EACH QUESTION SECTION A 1. Generally this was well-answered with most candidates gaining maximum marks. 2. Most candidates achieved at high marks. 3. Very well-answered by the majority of candidates. 4. Answers ranged from the very competent to incorrect identification of the offence. There were three marks for this question and candidates needed only to mention that it is an offence of an unlawful act, of a dangerous kind that causes victim s death. Some candidates argued that it was murder by another name, whilst others seemed to confuse tort with criminal law. Other answers which would have gained marks would be an act not an omission, relevant case (e.g. Church; Franklin), it is a common law offence. 5. Overall answers were competent. However, candidates must remember to cite the definition accurately e.g. it substantially impaired D s mental ability to either understand the nature of their conduct or form a rational judgment or exercise self-control. It is extremely important to learn the definitions for each crime/defence, as this will not only aid memory during the examinations, it will also ensure that candidates will achieve high marks. 6. Very well-answered by all candidates. 7. Most candidates achieved full marks. 8. Well-answered, with most candidates achieving the high marks. 9. Well-answered by the majority of candidates. 10. Always a popular question and, as usual, very well-answered. Page 2 of 11

3 SECTION B SCENARIO 1 Question 1(a) Very well-answered with most candidates achieving high marks. Despite this part of the question asking that candidates apply the law, a good percentage failed to do so and merely recited the definition of basic criminal damage. Law questions in this paper required candidates to set out the definition and then apply that definition (the law) to the facts of the scenario in the question. Vital marks were lost by those candidates who simply repeated what they had said in 1(a). What was required was an explanation that by smashing the speakers John has damaged or destroyed them, the speakers are property and they belonged to his neighbours and he did so without lawful excuse. He also had intent and he fulfilled the AR which is damaging/destruction. Question 2(a) Theft questions are always answered well and again most candidates achieved high marks. The majority of candidates produced sound answers but, again, there was lack of application to the facts. A simple explanation as to the lights being property, they belonged to the neighbour (another), they were appropriated by John hiding them and assuming rights of an owner and he had fulfilled the actus reus would have been sufficient for full marks. This question required a discussion of dishonesty and a very small percentage of candidates cited Ivey v Genting Casinos (2017) as the current test. Most candidates explained the Ghosh test which is no longer current law, with the test now being, firstly, to ascertain (subjectively) the actual state of D s knowledge/belief of the facts and then applying the second part by asking whether the actions were dishonest by the objective standards of ordinary decent people. Question 3(a) Most candidates recognised the offence as arson under s.1(3) Criminal Damage Act Regrettably, there are still those candidates who do not cite the section and/or the Act in full and simply provide initials. It is important to remember that when citing a statute, it must be written in full when first cited, only then is it acceptable to initialise the statute. Application of the law to the facts was required and, as in previous years, there was a lack of application. For the full 5 marks, a discussion of the Page 3 of 11

4 damage to shed being by fire, that the shed did not belong to D, R v G (2003), damage does not have to be irreparable/impairment of use, subjective test, unjustified risk taking, D aware of risk but took it anyway and D was reckless. Those candidates who had revised and prepared for the exam managed to achieve good marks. Question 4 This question was not very well-answered. Many candidates failed to explain that the D was voluntary intoxicated and that this is only a defence to specific intent offences. As arson can be committed recklessly, it is therefore a basic intent offence and the defence would not be available to Victoria. Whilst most candidates recognised voluntary intoxication and Majewski, only the better candidates managed to include most points for high marks. SCENARIO 2 Question 1(a) Most candidates identified the offence of gross negligence manslaughter and achieved high marks. Overall, most candidates managed to apply the law to the facts of this scenario. However, a sizable number recited the law already provided in Q1(a). There should have been an explanation that a duty existed by virtue of contractual and/or statutory duty, this was breached by falling asleep while driving and responsible for passengers, that D created a risk of death by arriving to work tired, he was aware of the risk which led to the death of the passengers who died as a result of the crash, grossly negligent standard, Adomako case. Question 2(a) It was heartening to see that most candidates achieved good marks for this question. Whilst only a handful of candidates managed to achieve high marks for this question, the majority of candidates did manage to gain good marks. This question was answered well by most candidates, who discussed intervening acts, thin skull rule and taking your victim as you find him with Blaue. Only the better-prepared candidates explained the whole person and refusal of a blood transfusion by a Jehovah s Witness would not break the chain of causation. (d) question was not answered well at all. Whilst some candidates recalled the Jordan and Cheshire cases, they did not explain that negligent medical treatment does not normally break the chain of causation. Page 4 of 11

5 Question 3(a) This question and scenario proved very problematic for a large proportion of candidates, with some concluding that Dr Sharma had committed murder. The offence was involuntary manslaughter by gross negligence. There is generally no duty to act but it can arise in certain categories e.g. special relationship and public office. Application of the law was required here and, as a result of some candidates discussing murder in 3(a), they failed to achieve any marks at all. A good answer would have explained that there was a duty of care owed by way of special relationship as husband and wife and also as a doctor (public duty), Dytham case, D breached her duty by failing to give husband his medicine which caused his death, objectively the breach was grossly negligent objective standard in Adomako, D does not have to foresee death or bodily harm. Reading the question paper thoroughly is vital when taking exams and identification of the correct offence would have elevated marks and grades for a good proportion of candidates. SCENARIO 3 Question 1(a) Very well-answered by all candidates. The intention must be explained as that to kill or cause grievous bodily harm (GBH), not cause death. Most candidates performed well with some failing to apply the law by explaining that Chizu is a human being, the killing was unlawful, it took place during the Queen s Peace and Angela had intention to kill/cause GBH. Question 2(a) Generally well-answered by most candidates. This question was worth 10 marks. However, only a small percentage of those sitting the exam managed to achieve high marks. Some answers suggested that a normal person might have acted the same way when the correct definition is a reasonable person of D s age and sex with normal degree of tolerance and self-restraint might have acted the same way. It is pleasing to note that many candidates discussed both qualifying triggers, some with more accuracy than others. As mentioned earlier in this report, preparing for the exam by revising the definitions is vital. Only in this way can candidates expect to achieve the grades they are hoping for. Answers varied from very competent to confusing as this required application of law to the facts. The better-prepared candidates explained that Angela lost Page 5 of 11

6 control as she became enraged, that a qualifying trigger can be anger/words or actions of extremely grave character that caused justifiable sense of being wronged, she was taunted over her poverty etc, asking whether someone of D s age and sex would have reacted in the same way, revenge is excluded as a trigger, Coroners and Justice Act 2009 s.54(4), Ibrams & Gregory (1982) or other relevant case, the defence is not likely to be successful and closing with a conclusion. Loss of control questions seem to pose difficulties for candidates and have done in the past. It is therefore recommended that candidates revise this area thoroughly prior to examinations. Question 3(a) As usual, almost every candidate achieved high marks for this theft question. This question required an application of the law, which most candidates managed to do, but a small number were unable to explain how the pearls were approriated, that the pearls were property and that they belonged to another (Chizu or her husband) with intent to permanently deprive shown by the D running off with them. It is not sufficient to restate the definition of theft, application requires each element to be applied to the scenario. SUGGESTED ANSWERS JUNE 2018 LEVEL 3 UNIT 3 CRIMINAL LAW SECTION A 1. The three main types of mens rea are intention; recklessness; and negligence / gross negligence. 2. Transferred malice is a mens rea principle that applies to intention and recklessness. It explains the circumstances in which MR can be transferred from the intended target to another victim. Example can be given, e.g. suppose A shoots at B intending to kill B, but misses, and hits and kills C. If mens rea is for different crime then it is not transferred malice. Use of a case e.g. Latimer (1886). 3. Aggravated criminal damage is governed by section 1(2) of Criminal Damage Act (CDA) The actus reus includes: destroying or damaging property that belongs to themselves or another without lawful excuse. The mens rea is intention or recklessness as to damage to property; and intention or recklessness whether life/the life or another was endangered through the damage. Recklessness test is subjective as in R v G (2003). Life does not actually have to be endangered. Cases to mention can include Webster (1995), Warwick (1995). 4. Constructive manslaughter is a common-law offence, which has three elements. The elements are an unlawful act (must be an act, not an Page 6 of 11

7 omission); the act must be dangerous; and the unlawful and dangerous act must cause the death of the victim. Mens rea is the mens rea of the unlawful act. Cases can include Franklin (1883), or Church (1966). 5. Diminished responsibility is governed by s.2 Homicide Act 1957, as amended by s.52 of Coroners and Justice Act It is a partial defence that reduces the charge of murder to voluntary manslaughter; must prove that: a) D was suffering from an abnormality of mental functioning; b) it arose from a recognised medical condition; c) it provided an explanation for the defendant s acts or omissions in being party to the killing; d) it substantially impaired his/her mental ability to either understand the nature of their conduct or form a rational judgment or exercise self-control. Cases can include e.g. Byrne (1960). 6. The actus reus of theft consists of property, belonging to another and appropriation. Cases can include Turner (1971) and Gomez (1993). 7. For mistake to succeed as a general defence, it must be a mistake as to fact and not the law. The mistake must be genuine and honest but need not be reasonable. 8. The mens rea for attempt is the intention to commit the full offence. Cases can include Whybrow (1951) or Shivpuri (1986). 9. There are two types of duress. Duress by threats and duress by circumstances. 10. Strict liability is an exception to the rule that all crimes must have the actus reus and mens rea element. In strict liability offences, there is no mens rea requirement. Appropriate examples might include certain health and safety offences, road traffic offences, sale of alcohol, food and pharmaceutical products, trade descriptions and pollution related offences. Scenario 1 Questions SECTION B 1. (a) Basic criminal damage is a statutory offence under section 1(1) of Criminal Damage Act (CDA) The offence includes the following elements: destruction or damage of property belonging to someone else without lawful excuse. The damage does not have to be irreparable or completely impair the use of property. The mens rea is intention or recklessness. Leading case is R v G (2003). This answer requires application of the law to the facts. Jon smashed (damaged/destroyed) the speakers (property that belongs to his neighbours). He had no lawful excuse. He also had the required mens rea as he had the intention to damage. 2. (a) Jon might be guilty of theft. Theft is governed by s.1 Theft Act (TA) Under section 1 TA 1968 a person is guilty of theft if he Page 7 of 11

8 dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it. The actus reus of theft consists of appropriation, property, belonging to another. The mens rea consists of dishonesty and the intention to permanently deprive. Both mens rea and actus reus need to coincide before theft can be found. Case law: Ghosh (1982), Gomez (1993), Lloyd (1985), Turner (1971), Hinks (2006). This answer requires application of the law to the facts. Jon has the required actus reus as he has fulfilled all the elements. Firstly, he appropriated the item when removed it from the neighbours garden and hid it in his shed. The lights are property. The lights belong to someone else, e.g. the neighbours, and Jon knew this. Jon might not have required mens rea for theft. He is dishonest as none of the exclusions in s.2 of Theft Act 1968 apply. Candidates should apply the test from case Ivey (2017) that has overruled the Ghosh (1982) test. It is a one-part test: did reasonable and honest people think that what the defendant did was dishonest? Applying Ivey Jon is dishonest. However, he does not have the intention to permanently deprive, as he intended to return them on Monday. Borrowing them (even if dishonestly) for the weekend does not render the item useless; some of the value and goodness of the items still exist. Cases include Lloyd (1985), Velymyl (1989). 3. (a) Victoria might be charged with arson. Arson is governed by section 1(3) CDA Arson is criminal damage, simple/basic or aggravated, that is committed by fire. Mens rea is intention or recklessness. Relevant cases are Hunt (1997), R v G (2003). This answer requires application of the law to the facts. The damage to the shed was caused by fire. The shed did not belong to Victoria, as she was only a guest. The shed was damaged by fire; damage does not have to be irreparable/cause impairment of use. The mens rea here is recklessness as per the case of: R v G (2003). The test is subjective: a) unjustified risk taking, and b) D was aware of the risk but took it anyway. Victoria was reckless, as she ignored the warning that she was given. 4. The relevant defence to consider is intoxication. Victoria was voluntarily intoxicated, so intoxication can only be considered in relation to specific intent offences, e.g. murder. Basic intent offences are those where proof of recklessness is sufficient. Criminal damage is a basic intent offence and Victoria will not be able to rely on the defence of intoxication. Cases can include Majewski (1976). Scenario 2 Questions 1. (a) Obasi might be liable for involuntary manslaughter. The relevant type of involuntary manslaughter here is gross negligence manslaughter. There are four elements that must be established to find a defendant guilty of gross negligence manslaughter. These elements are: duty of care; breach of that duty; risk of death; breach of the duty must have caused death; the breach was grossly negligent. Conduct can be an act or an omission and the defendant Page 8 of 11

9 does not have to foresee death or bodily harm. Leading case is Adomako (1994). This question requires application of the law to the scenario. Firstly, Obasi had duty of care towards the passengers. This would come under the category of contractual duties or a statutory duty. Case for contractual duty is Pittwood (1902). There was a breach of that duty when Obasi fell asleep while driving. The breach of the duty caused the death of the passengers. He also created a risk by falling asleep/not being fit to drive a train. Finally, gross negligence is assessed on an objective standard. Objectively, a reasonable person would be likely to find that the breach of the duty was grossly negligent. Leading case Adomako (1994). 2. (a) To establish causation for result crimes, it is necessary to establish factual and legal causation. Factual causation is determined by the but for test; but for the actions of the defendant, would the outcome have been the same. Leading case White (1910). Legal causation means that the defendant s actions had to be significant and the operating cause of death. His actions do not need to be the sole cause of death, but they must be more than minimal. There must be no intervening act. Leading cases are Smith (1959); Pagett (1983). (d) There are certain events that may break the chain of causation. These are refusal of medical treatment/aggravation of injuries by the victim, the thin skull rule; injuries sustained during escape; negligent or poor medical treatment, and natural disasters e.g. acts of God. Case e.g. Blaue (1975). This answer requires application of the law to the facts. Firstly, there are certain circumstances where victim intervention can break the chain of causation. If victim intervention is reasonable and foreseeable, it does not break the chain of causation. Thin skull rule or take your victims as you find them rule applies here. Victim should be considered as a whole person, together with religious and other beliefs. If the victim refuses treatment due to religious beliefs, the chain of causation is not broken. Case is Blaue (1975). This answer requires application of the law to the facts. Poor medical treatment does not normally break the chain of causation and medical intervention is not judged on the same rules as other intervening events. Medical treatment would have to be so independent of defendant s acts and in itself so potent in causing death as was decided in Cheshire (1991). In exceptional cases/when treatment is palpably bad, it could break the chain of causation, as was decided in Jordan (1956). Here, giving the wrong type of blood is arguably palpably bad, and a very basic mistake. Candidates can argue that chain of causation was or was not broken; provided they apply the correct principle. 3. (a) Dr Sharma might be liable for involuntary manslaughter. The relevant type of involuntary manslaughter here is gross negligence manslaughter. Generally, there is no duty to act, but a duty to arises in some circumstances, such as a special relationship or public office. Page 9 of 11

10 This question requires application of the law to the facts. Dr Sharma potentially had a duty of care towards her husband under more than one category. As a wife, she had a duty of care under a special relationship. As a doctor, she had duty of care, potentially under public office, and even contractual duty if, he was a patient. There was a breach, as she failed to give his medication. Objectively, the breach was grossly negligent. Leading case is Adomako (1994). Other cases that could be mentioned are Gibbins and Proctor (1918); Dytham (1979); Pittwood (1902). Scenario 3 Questions 1. (a) The offence is murder and murder is a common law offence. The definition of murder is the unlawful killing of a human being in the Queen s peace with malice aforethought. This includes the intention to kill and the intention to cause grievous bodily harm (GBH). Intention can be direct or indirect. This answer requires application of the law to the facts. Angela repeatedly hit Chizu, who is a human being, on the head. This is an unlawful killing, as it was not done in self-defence. Angela was enraged and wanted to hurt Chizu; this shows intention to kill or to cause GBH, and the killing took place during Queen s peace. 2. (a) Angela might be able to rely on the partial defence of loss of control. The relevant law is the Coroners and Justice Act 2009, section 54. The partial defence of loss of control was established in the Coroners and Justice Act 2009 s.54. It includes three parts: firstly, defendant s acts or omissions resulted from a loss of control. Secondly, there was a qualifying trigger. And finally, a reasonable person of D s age and sex, with a normal degree of tolerance and self-restraint might have acted in the same way, relevant case is Jersey v Holley (2005). The definition of a qualifying trigger is found in the Coroners and Justice Act 2009 s.55. A qualifying trigger can be the fear of serious violence or it can be anger/words or actions of an extremely grave character that caused a justifiable sense of being wronged. Loss of control need not be sudden, but neither trigger will apply if D s fear of serious violence is caused by things D incited to provide an excuse to use violence. Revenge and sexual infidelity cannot be a qualifying trigger under section 55. Cases include Clinton (2012). This answer requires application of the law to the facts. Angela clearly lost control, but would someone who is her age and sex have reacted the same way if they were taunted about being fired, not being married, and being poor? It is unlikely. The candidates also needed to consider whether she had a valid qualifying trigger, as revenge is excluded from the scope of the law under Coroners and Justice Act 2009 s.54(4). V taunted D over her poverty, lack of employment and marriage: it is unlikely that these could be of extremely grave character under Coroners and Justice Act 2009 s.55(4). Cases can include Ibrams & Gregory (1982) or any other relevant case. The defence is not likely to be successful. If Page 10 of 11

11 candidates argue that not successful as LoC was out of revenge, point also awarded. 3. (a) Angela might be guilty of theft. Theft is governed by s.1 Theft Act Under section 1 Theft Act 1968 a person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it. The actus reus of theft consists of appropriation, property, belonging to another. The mens rea consists of dishonesty and the intention to permanently deprive. Both mens rea and actus reus need to coincide before theft can be found. Case law: Ivey (2017), Gomez (1993), Lloyd (1985), Turner (1971), Hinks (2006). This answer requires application of the law to the facts. Angela has the required actus reus as she has all the elements. Firstly, she appropriated the items when she took the pearls. The pearls are property. The pearls belong to someone else. Even if Chizu was dead when she took them, the pearls would not be abandoned but belong to her husband or another. Angela also has the required mens rea as she has the intention to permanently deprive. She also has dishonesty as none of the exclusions in s.2 of Theft Act 1968 apply. Candidates should apply the test from case Ivey (2017); applying Ivey, by the objective standards of ordinary decent people, Angela is dishonest. Page 11 of 11