LEVEL 3 - UNIT 3 - CRIMINAL LAW SUGGESTED ANSWERS JUNE 2011

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1 Note to Candidates and Tutors: LEVEL 3 - UNIT 3 - CRIMINAL LAW SUGGESTED ANSWERS JUNE 2011 The purpose of the suggested answers is to provide students and tutors with guidance as to the key points students should have included in their answers to the June 2011 examinations. The suggested answers 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. ILEX is currently working with the Level 3 Chief Examiners to standardise the format and content of suggested answers and welcomes feedback from students and tutors with regard to the helpfulness of the June 2011 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 Question 1 The actus reus of murder is that the defendant must cause the unlawful killing of a human being during the Queen s peace. Question 2 This question required consideration of situations where an omission could lead to there being criminal liability. Although the question only asked for two situations, there are in fact five major areas and it is also possible to create liability for an omission under statute law, as with s.170 Road Traffic Act Parents and family or their equivalent will often be liable for omissions when the fail to act, as is shown in Gibbons and Proctor (1918).Contractual duties often relating to employment is another area as can be shown in Pittwood (1902). An omission can occur where there has been an assumption of responsibility Stone and Dobinson (1977).Where someone creates a dangerous situation and fails to do anything about it, can lead to liability as was shown in Miller (1983). It can also be that a person in public office who fails to act may create a potential liability, Dytham (1979). Question 3 The main differences between basic and aggravated criminal damage are the length of sentence, the fact that for it to be an aggravated offence life needs to be endangered and with the aggravated offence it is possible to damage or destroy your own property. Page 1 of 5

2 Question 4 The two main types of involuntary manslaughter are constructive manslaughter also known as unlawful manslaughter, as can be seen in the cases of Franklin (1883), Church (1966) and gross negligent manslaughter as can be seen in the case of Adomako (1994). Question 5 The three statutory beliefs contained in the Theft Act 1968 are where the person believes he has the right in law to deprive the other of the property, where he believes he would have the others consent if the other knew of the appropriation and where the person believes the owner cannot be discovered by taking reasonable steps. Question 6 The Ghosh test has two stages the first is objective and is, was what was done dishonest according to the standards of a reasonable and honest person and if so the subjective test comes into being and that is did the defendant realise that what he was doing was dishonest by those standards. If the answer to both tests is yes, then he is dishonest. Question 7 The mens rea of attempt is essentially that of the completed crime. The defendant has to intend to commit the substantive offence as was shown Easom (1971). Question 8 Voluntary intoxication may be a defence if it negates the mens rea of the offence. The offence has to be a specific offence and not a basic offence as was shown in Majewski (1977). Question 9 Mistake is a general defence and must be a mistake as to facts and not as to the law. The mistake must be genuine but does not have to be reasonable, Beckford (1987). Question 10 The main justifications for strict liability are their existence forces people to comply with regulatory offences, they are of a minor nature which means there is no stigma attached, proving fault would often be impossible and the amount of time to prove the mens rea is disproportionate. SECTION B Scenario 1 1(a) The question relates to theft under the Theft Act For a person to be guilty of theft there needs to be the dishonest appropriation of property belonging to another with the intention of permanently depriving them of it. Page 2 of 5

3 1(b) The question looks to see if Tim has the mens rea of theft. The elements to be considered are the dishonesty and intention to permanently deprive. The dishonest will be viewed under the Ghosh test. The test is in two parts. Firstly was what was done dishonest according to the standards of a reasonable and honest person (objective test)? If so we move to the second part of the test which is did the defendant realise that what he was doing was dishonest by those standards (subjective test)? It would seem that Tim realised that what he was doing was dishonest. However he does return it so doesn t permanently deprive the shop, but never the less he has assumed ownership and may have prevented the shop from selling it to someone else. Tim has the mens rea for the offence. 2(a) The incident concerning the sandwich relates to attempted theft under the Criminal attempts Act We have to consider whether Tim s actions were more than merely preparatory, had he embarked on the crime proper? There is no need to have performed the last act before the crime proper. In attempt it is not sufficient for recklessness, the defendant must have the intention to commit the crime proper, see Jones (1990), Campbell (1991), Gullefer (1987). It is possible to attempt the impossible. 2(b) It would certainly appear that Tim had the intention to steal the sandwich but were his actions sufficient to amount to an attempt? In this situation it would appear that although there was mens rea, there was no actus reus. Tim is not guilty of attempted theft. 3. Tim will plead voluntary intoxication and say that he did not have the mens rea for the offence. Tim was voluntarily intoxicated and this defence only works for crimes of specific intent, if he was involuntarily intoxicated it could be a defence to both basic and specific crimes. Specific intent crimes require intention and not recklessness. If he was voluntarily intoxicated but could still form the intention it will not be a defence, Kingston The offence of attempt is a specific intent crime and so as long as Tim can prove that through the intoxication he had no intention, he has a possible defence. See Majewski 1976, Gallagher (a) The offence is basic criminal damage under s.1(1) Criminal Damage Act The offence is damaging or destroying property without lawful excuse. It includes non-permanent damage. The mens rea of the offence is intention or recklessness. Damage is determined by the time and cost of repairing, see Morphitis v Salmon (1990), Hardman v Chief Constable of Avon & Somerset (1986). 4(b) Tim intends to cause damage, it doesn t matter that it can be cleaned up, the relevance is the time and cost of clearing it up. Scenario 2 1(a) The offence is aggravated criminal damage as defined by s.1(2) Criminal Damage Act For the offence to take place there must be damage or destruction to property. The property can belong to the defendant or another. The property must be destroyed intentionally or recklessly and there must be intention by the damage or destruction to endanger the life of another or be reckless as to whether life would be endangered. The danger to life must come from the destruction or damage to the property. Life does not actually have to be endangered. See Webster (1995), Warwick (1995). 1(b) There can be no doubt that Theo intends to damage the tyre, even though it can be repaired, Hardman v Chief Constable of Avon & Somerset (1986).He Page 3 of 5

4 has not been reckless and there is intent. However as to the endangering life he may not have the intent but he has certainly been reckless. 2(a) The offence here is basic criminal damage as defined by s.1(1) Criminal damage Act For the offence to take place there must be damage or destruction of property belonging to another without lawful excuse. The damage includes non permanent damage as can be contrasted in the cases of Hardman v Chief Constable of Avon & Somerset (1986) and R v A (a juvenile)(1978). The mens rea of the offence is intent or recklessness. Whether the act amounts to damage is usually determined by the cost and time of repairing the damage, Morphitis v Salmon (1990), Hardman v Chief Constable of Avon & Somerset (1986). 2(b) Theo is guilty of basic criminal damage in relation to the scraping of the car with the screw driver. He has the intention to cause damage to property belonging to another and it will cost money and take time to repair, Morphitis v Salmon (1990), Hardman v Chief Constable of Avon & Somerset (1986). 3. Theo s defence will be one of duress by threats. He will need to show that he was forced into committing the crime. There must be a threat of death or serious injury. Although the threat from Doug is implied there is nevertheless a threat of serious injury. In addition the threat is aimed at Theo carrying out specific crimes, he is told to scrape the car and let the air out of the tyres. However where Theo may find difficulty in pleading the defence is in his avenue of escape. Could he have gone to the police or was he so scared of Doug that he didn t dare go to them, Hudson and Taylor (1971. To prove duress there is both a subjective and objective test. The subjective test is to establish whether he acted in the way he did because he feared serious injury and the objective element is whether a sober person of reasonable firmness, sharing the characteristics of the accused responded in the same way. From the limited facts we have before us, it is possible to argue his case either way. 4(a) The actus reus of theft is the appropriation of property belonging to another. 4(b) When Theo puts the screw driver in his pocket there is no dishonesty or intention to permanently deprive. However when he throws it on to the waste ground there is clearly an intention to permanently deprive, as Shantala is unlikely to find it. So we then have to decide whether there has been dishonesty. As S.2(1) of the Theft Act 1968 is inappropriate we have to look at his dishonesty in the light of the Ghosh test. Was what was done dishonest according to the standards of a reasonable and honest person and if so did Theo realise that what he was doing was dishonest by those standards. There was no reason why he should not return the screw driver to Shantala and his actions are therefore probably dishonest and he is guilty of theft. Scenario 3 1(a) The offence for which Adam may be charged is constructive manslaughter also known as unlawful manslaughter and which is a type of involuntary manslaughter. The death needs to be caused by an unlawful act. It is necessary for there to be an act and an omission is not sufficient. The unlawful act needs to be dangerous and this is decided on an objective basis. It must be an act that a sober and reasonable person would inevitably recognise as subjecting the other person to at least the risk of some harm, albeit not serious, Church (1966). The act need not be aimed at the person it can be aimed at property, as long as it subjects the victim to some harm. The harm must be physical and not fear or Page 4 of 5

5 apprehension. Where a reasonable person would be aware of the victim s frailty and the risk of physical harm, then the defendant will be liable. It must be proved the defendant had the mens rea for the unlawful act. 1(b) Adam has committed an unlawful act by selling alcohol to Bert who is under age. He has the mens rea for the offence. He is aware of the victim s frailty in that he is not yet old enough to buy alcohol. This in turn meets the objective test of the unlawful act being dangerous. His actions can clearly lead to the risk of harm and his actions have caused Bert s death. 2(a) The question looks at gross negligent manslaughter, another type of involuntary manslaughter. In this type of involuntary manslaughter there is a need for there to be a duty, for the duty to be breached and for a death to occur. The negligence needs to be gross and criminal rather than civil because of its seriousness. The leading case is Adamako (1994). 2(b) The real question is whether Cathy owes Bert a duty of care, and if so has she breached that duty. It was held in the case of Khan (1998) that a duty could exist in a situation where there is a need to summon medical assistance. Was there an omission by Cathy for not summoning medical help? It must be remembered that the negligence must be gross, did she realise the full extent of the situation. Was she aware of the risk of death and was her conduct so bad as to amount to a criminal act or omission, Adamako (1994)? It will be left for the jury to decide. 3(a) The question is one of murder. Did the defendant cause the unlawful killing of a human being during the Queen s peace? Did the defendant have malice aforethought? Did he intend to kill or intend GBH? The question of oblique intention should also be considered, was it virtually certain that his actions would lead to Ethel s death, Woollin (1998)? 3(b) David has malice aforethought. He either intends to kill, has oblique intention to kill or intends GBH. 4. David will plead the partial defence of loss of self-control under s.54 Coroners Act 2009 which if successful will reduce the offence from murder to manslaughter. David will need to show he lost self-control. Was the loss of selfcontrol due to the fear of serious violence to him or another or was it due to things said or done or both? Things said or done have to be of an extremely grave nature. He will need to show there was a qualifying trigger. How sudden was it in this instance? He has been provoked by seeing that the shop has sold alcohol to his son, would a reasonable man have acted the way he did? The characteristics of the reasonable man usually only allow for his age and sex to be taken into account. His loss of self-control does not have to be total. The decision will be left to the jury. Relevant cases are Doughty (1986), Duffy (1949), Attorney General of Jersey(2005),. The question does not involve diminished responsibility. Page 5 of 5