LEVEL 3 - UNIT 3 CRIMINAL LAW SUGGESTED ANSWERS - JANUARY 2014

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1 Note to Candidates and Tutors: LEVEL 3 - UNIT 3 CRIMINAL LAW SUGGESTED ANSWERS - JANUARY 2014 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 2014 examinations. 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. SECTION A 1. Transferred malice is where a similar crime is committed against a different victim or object. There is no need to have a specific victim in mind. If the mens rea is for a completely different crime then it is not transferred malice, Latimer For the mens rea and actus reus to coincide both elements must be present at the same time, but not necessarily throughout the crime. It can be present at the beginning as in Thabo Meli 1954, or it can be present at the end as in Fagan v MPC In criminal damage property is defined within s.10 Criminal Damage Act Intangible property cannot be damaged but may be stolen. Damage can be non-permanent. One looks to whether it can be cleaned and cost and time of repairing, Hardman v CC of Avon and Somerset Constabulary The defences to criminal damage are the belief that the owner gave consent and/or the belief that other property was in need of protection, Denton Loss of control is a subjective test. It is not necessary to show that the defendant did not know what he was doing but there must be one of two qualifying triggers present. There must either be fear of serious violence or the trigger can be brought about by things said or done, or by both. The things said or done must constitute circumstances of an extremely grave character. Only the defendant s age and sex are to be taken into account, Attorney General for Jersey v Holley Section 54 and 55 Coroners and Justice Act Page 1 of 5

2 6. Constructive manslaughter needs for there to be an unlawful act, which must be dangerous. It must be an act and not an omission. The test for whether it is a dangerous act is objective. The act does not have to be aimed at a specific person but there must be a risk of physical harm, Church Appropriation is the assumption of the owner s rights and can occur innocently. It can be the physical taking of property or the exercising the rights over property. It includes using, selling, changing price labels and damaging or destroying property. Gomez The actus reus of attempt requires for there to be an act which is more than merely preparatory. The defendant needs to have embarked on the crime proper. One needs to look at whether the defendant tried to commit the crime, he does not need to have performed the last act. Gullefer In order for mistake to be pleaded successfully it must be one of fact and not law. If it is successful it means there is no mens rea. The mistake must be genuine but not necessarily reasonable. DPP v Morgan There are many reasons why it is said that strict liability has no place in law today. They include the fact that the person may not be blameworthy and people may have taken all the precautions they can and should therefore not be punished. There is no evidence to show it improves standards and it goes against human rights. (right to fair trial Art 6). Scenario 1 Questions SECTION B 1(a) The offence is attempt, under the Criminal Attempts Act The act needs to be more than preparatory. Has the defendant tried to commit the crime in question? The defendant need not have committed the last act before the crime proper. The mens rea for attempt is the same as for the completed crime. There has to be proof of a decision to bring about the offence. The intention can be inferred from foresight of consequences. Recklessness is not sufficient, however recklessness may be sufficient where the defendant intends to damage proper by fire but is reckless as to whether life is endangered. Easom (b) Renata buying the petrol and lighter does not amount to attempt. However had she not heard someone in the house she would have committed the crime. Renata had intention to commit arson, Miller 1983; (Gullefer 1987). 2. The defence available to Renata is duress. This is where the defendant is forced to commit the crime due to the fear of threats to themselves or their family. There must be no avenue of escape and the defendant must commit the specific offence for which they are threatened. The threat must be effective at the time the crime was committed. The crime doesn t necessarily have to be committed immediately. The test is subjective and objective. Did the defendant act because of fear of violence or death and would a sober person of reasonable firmness, sharing the same characteristics, have responded in the same way? Characteristics include age, serious physical disability, mental disorder or sex. It is likely the defence will succeed for Renata, her only problem will be showing there was no avenue of escape. Hudson and Taylor Page 2 of 5

3 3(a) The offence here is aggravated criminal damage. There is a need to destroy or damage property. The property can belong to someone else or the defendant. There must be intention or recklessness as to the destruction of property and intention or recklessness as to whether life is endangered. Destruction includes where property is rendered useless but not completely destroyed. Damage includes non-permanent damage. The test for whether there has been damage can include assessing the time and cost of repairing the property. The danger to life must come from the destruction. Life does not actually have to be endangered. Sangha (b) The offence is arson. The destruction or damage to property by fire. The mens rea of the offence is recklessness or intention, Miller (c) Renata has committed both arson and aggravated criminal damage. By throwing the petrol over the fence she has been reckless. The explosion did not endanger life but could have. Clearly there has been damage to property and it has been destroyed. The burning of the shed is arson. Miller Scenario 2 Questions 1(a) The unlawful killing of a human being during the Queen s peace. The defendant will have the intention to kill or cause GBH. (b) Kirstin has crushed her manager s skull. The manager has been killed during the Queen s peace. Kirstin may not have intended to kill her but she certainly intended GBH. 2. Partial defences to murder are now contained within the Coroners and Justice Act 2009 ss Diminished responsibility is an abnormality of mental functioning and should be a significant factor in causing the defendant s actions and has to come from a recognised medical condition. Kirstin is suffering depression and it could well be that this will be seen as a medical condition, if diagnosed. For there to be loss of control, there needs to be a qualifying trigger. It can be through fear of serious violence from the victim against the defendant or another. It can also be through things done or said or both. They must have constituted circumstances of an extremely grave character and caused Kirstin to have had a justifiable sense of being wronged. There has to be loss of control and one looks to see if a person of similar sex and age and self restraint would have acted in a similar way. The burden of proof is with the prosecution and if successful will reduce the offence to voluntary manslaughter. A relevant case for DR is Byrne 1960 and for LC Attorney General of Jersey v Holley (a) The offence here is constructive or unlawful manslaughter. This requires an unlawful act leading to a death. It must be an act and not an omission. The unlawful act needs to be dangerous and the test for this is objective. The act does not need to be aimed at a particular individual but there must be a risk of physical harm. The defendant must have the mens rea for the unlawful act but does not need to know that it is unlawful or dangerous. Newbury and Jones (b) The throwing of the lampstand out of an office window is an unlawful act and as the office is on the third floor it is also dangerous. A reasonable person would not have acted in such a way. There is a positive act by Kirstin but she probably didn t intend the consequences, she has been reckless. Page 3 of 5

4 4(a) There is causation in fact and causation in law. Causation in fact is known as the but for test, it is the factual cause of the consequences, White For legal causation the conduct must be more than minimal but does not have to be substantial. The defendant s act need not be the only cause, others may have contributed to the death, Cato (b) Kirstin throw the lampshade from the window and but for her actions the pedestrian would not have died. Her actions are more than minimal. The lack of medical evidence may have contributed to the death. Kirstin s actions don t need to be the only cause of the death, Pagett Scenario 3 Questions 1(a) The potential offence is theft and there will be a need to show the dishonest appropriation of property belonging to another with the intention of permanently depriving. Theft Act 1968 s.2(1)(c), Could he reasonably find owner? Would reasonable man have found it dishonest? Could the owner reasonably have been found? (b) There is no doubt that the actus reus is present because he has picked up the ticket and kept it. The real question is the one of dishonesty and one would look to the Ghosh Test and look to see whether the reasonable man would have seen his actions as dishonest. There is also the question of s2(1)(c) of the Theft Act and whether the owner could reasonably be found. Gomez Jack has been dishonest and has the intention to permanently deprive. The fact that they would have been free to Jack does not affect his mens rea. Jack s dishonesty will be judged in the light of the Ghosh Test. Would a reasonable man have considered his actions dishonest and did Jack realise his actions would have been seen as dishonest by a reasonable man. It is an objective then subjective test. 3. Intoxication is not a defence in itself but can be a defence if it negates the mens rea. Involuntary intoxication can be a defence to all crimes but voluntary intoxication can only be defence to specific crimes. Specific crimes require intention and do not include recklessness as do basic crimes. Theft is an intent only crime and may therefore be able to assist Jack, providing he is able to show that as a result of drinking the intention to commit the crime did not exist. The leading case is Majewski There are potentially two crimes here namely basic and aggravated criminal damage, Criminal damage Act 1971 s.2(1) and s.2(2) respectively. Basic criminal damage is the destroying or damaging of property belonging to another. Destroying means rendering the property useless even if not completely destroying it. Damaging occurs even where the damage may not be permanent and one looks to the time and cost it will take to repair to see if there has been damage. The mens rea for the offence is intention or recklessness. With aggravated criminal damage the property can belong to another or the defendant. There must be intention destroying the property and intention or recklessness as to whether the life of another would be endangered. The danger to life must come from the destruction, but life does not actually have to be endangered. 5. Section 2(1)(c) of the Theft Act 1968 cannot now be relied on as it would seem that the owner could now be reasonably traced and the ticket has Page 4 of 5

5 value. If Jack now attempted to cash in the ticket it would amount to dishonesty. Page 5 of 5