Note to Candidates and Tutors: LEVEL 3 UNIT 3 CRIMINAL LAW SUGGESTED ANSWERS JUNE 2012 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 2012 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. There are a number of ways in which a duty can arise and which if not carried out can lead to an omission. Students were asked to identify with the aid of case law two situations where there might be a duty to act. These included a contractual duty as in Pittwood 1902, a duty due to a relationship as in Gibbins and Proctor 1918, a voluntary undertaking as in Stone and Dobinson 1977, an official position as in Dytham 1979 or a chain of events as in Miller 1983. 2. The two types of causation in criminal law are factual and legal. Factual causation is seen in the but for test in that the event would not have happened if the defendant had not acted in the way that he did. With legal causation the defendant s actions do not have to be the sole cause of the action but they have to be a substantial reason. Relevant case law would be White1910, or Pagett 1983. 3. Oblique intention is where the defendant does not necessarily intend the outcome of his actions, but they are virtually certain to happen. Relevant case law would be Nederick 1986, Woollin 1997. 4. The three types of criminal damage are basic, aggravated and arson, as defined within the Criminal Damage Act 1971. 5. Under the Coroners and Justice Act 2009 the two main partial defences to murder, reducing the charge from murder to voluntary manslaughter, are diminished responsibility and loss of control. 6. The requirements for constructive manslaughter, also known as unlawful manslaughter, are that there is an unlawful act, which is dangerous and leads to the death of the victim. There must be a risk of some harm as was shown in Lamb 1967. Page 1 of 5
7. Property has a wide definition within S.4 of the Theft Act 1968 and can include money, all other property and tangible and intangible items. 8. Attempt is defined within the Criminal Attempt Act 1981 and is an act that is more than merely preparatory and is where the defendant has embarked on the crime proper as was shown in Gullefer 1987. 9. The defence of mistake must be about fact so that if the facts were as the defendant believed them to be there would either be no mens rea or the defendant would have been able to rely on another defence. It must be a genuine mistake even if it is unreasonable, R v Beckford 1987. 10. There are a variety of justifications for strict liability offences and can include protecting society, easy to enforce, saves court time and lack of blameworthiness. They are usually regulatory requirements and no stigma is attached. Scenario 1 Questions SECTION B 1. (a) Recognise that the potential offence is theft and that the mens rea of theft is dishonestly intending to deprive the owner of his property. The theft act does not define dishonesty but does state what is not honest. Cassandra would not be dishonest if she genuinely believed she would have had her colleague s consent to take the umbrella. Common law defines dishonesty by reference to the Ghosh test. The test takes two parts, firstly was what was done dishonest according to the standards of reasonable and honest people? If so the second test is did the defendant realise what they were doing was dishonest by those standards? In all the circumstances, at this stage, it is unlikely Cassandra has the necessary mens rea for theft. (b) Cassandra s mens rea changes at this stage and she now becomes dishonest as she intends to permanently deprive the owner of their property. Cassandra leaves the umbrella in the bar which the owner would not have agreed to and she can no longer rely on S2(1)(b) of the Theft Act 1968. The Ghosh test would again be applied and this time she has the mens rea of the offence. Cassandra now treats the property as her own by disposing of it regardless of the owner s rights s.6. 2. (a) The offence here is basic criminal damage under S1(1) of the Criminal Damage Act 1971. Cassandra has damaged property belonging to another. The damage does not have to be permanent. Damage is assessed on the cost and time of repairing the damage, Morphitis v Salmon 1990, Hardman v Chief Constable of Avon and Somerset. The mens rea for the offence is intention or recklessness. (b) Cassandra has committed criminal damage within the meaning of the Act. She has not intended to cause the damage but has been reckless. It will take time and cost money to clean the coat Morphitis v Salmon 1990, Hardman v Chief Constable of Avon and Somerset. 3. The defence that will be raised is one of intoxication. There is involuntary intoxication, which can be a defence to most offences and voluntary Page 2 of 5
intoxication which is only a defence to specific crimes and not basic ones, Majewski 1976. Specific crimes are ones where the mens rea is intention whereas basic crimes have a mens rea which can be intention or recklessness. Cassandra is voluntarily intoxicated and therefore she only has a defence to specific crimes. Criminal damage is a basic crime as it can be committed by recklessness and so Cassandra will have no defence. It should also be noted that the defence of intoxication only works if it negates the mens rea. 4. (a) The offence is attempted theft under the Criminal attempts Act 1981. One needs to look at whether has been an actual attempt to commit the crime proper. Has the defendant s actions been more than merely preparatory? Was it the last act before the crime proper? R v Whybrow (1951), R v Geddes 1996 It is possible to attempt the impossible R v Shivpuri (1986). The mens rea for attempt is the same as that for committing the actual offence itself. Recklessness as to consequences is not enough. (b) Cassandra has handled the newspaper which is more than merely preparatory. She has embarked on the crime proper and had she not been disturbed she would have completed the crime. Scenario 2 Questions 1. (a) Richard will be charged with murder, which is the causing of the unlawful killing of a human being during the Queen s peace. The mens rea is malice aforethought which requires intention to kill or cause GBH. (b) By banging the goal keeper s head against the goal post with such force, Richard has clearly shown the intention to cause GBH. He may not have had the intention to kill him, but this does not matter he will still be charged with murder. The goal keeper is a human being and it has happened during the Queen s peace. 2. The partial defences to murder have been changed by the Coroners and Justice Act 2009, which repeals the Homicide Act 1957. The appropriate sections of the new Act are sections 52-56. Diminished Responsibility is an abnormality of mental functioning and needs to be a significant factor in causing the defendant s actions. It has to be a recognised medical condition and we are not told whether this is the case with Richard, but his actions suggest he might. Provocation under the 1957 Act has been replaced with loss of control. There must be loss of self-control, which is caused by a qualifying trigger, which can be fear of serious violence, things said or done or a combination of both. It will be necessary for a person of a similar age and sex to have acted in the same way. The question to ask is whether by them laughing at him is a qualifying trigger and would some one of her age and sex acted in such a way relevant case law R v Byrne 1960, Attorney General for Jersey v Holley 2005. 3. (a) For there to be constructive manslaughter there must be an unlawful act, it must be an act, an omission is not sufficient. The unlawful act must be dangerous and this is assessed objectively. The dangerous act need not be aimed at anybody, it can be aimed at property. It needs to be shown that the defendant had the mens rea for the unlawful act, Franklin 1883, Church 1966. Page 3 of 5
(b) The groundsman s death is caused by Richards s unlawful act. Richard has assaulted him and although he did not intend it, he has been reckless. Barging someone to the ground is a dangerous act and is unlawful. It is a positive act and there is no omission, Franklin 1883, Church 1966. 4. (a) Causation in criminal law needs to be both factual and legal. Factual causation is judged by the but for test, in other words would the consequences have happened but for the defendant s actions. With legal causation it is necessary for the defendant to have been responsible for the substantial cause of the crime but not necessarily be the sole cause. There must be no intervening act, which breaks the chain of causation and the thin rule applies. Main cases include White 1910, Cheshire 1991, Pagett 1983. (b) The fact that the groundsman has a weak heart does not lessen Richard s liability, you must take your victim as you find them, it is known as the thin skull rule. The defendant causes the victim to react in a foreseeable way, Blaue 1975. Scenario 3 Questions 1. She has committed theft under S.1 of the Theft Act 1968 which means she has dishonestly appropriated property belonging to another with the intention of permanently depriving, relevant cases, eg: Turner 1971 or Wain 1995. 2. The defence she would try to use would be duress by threats. The threats must be a threat of death or really serious harm and must be to the defendant or a close member of his family. There must be no avenue of escape, meaning she cannot tell anyone of her situation and seek help. The threat must be aimed at making the person commit a specific crime and must be effective the moment the crime is committed. The test is subjective as to whether she felt threatened and objective as to whether a reasonable person would have acted in such away and the only relevant characteristics are ability to resist threats and pressure, Hudson and Taylor 1971. It is unlikely the defence will be successful in that there is an avenue of escape and her boyfriend is not asking her to commit a specific offence. 3. (a) For there to be constructive manslaughter there must be an unlawful act, it must be an act, an omission is not sufficient. The unlawful act must be dangerous and this is assessed objectively. The dangerous act need not be aimed at anybody, it can be aimed at property. It needs to be shown that the defendant had the mens rea for the unlawful act, Franklin 1883, Church 1966. (b) The stabbing of someone is an unlawful act and there is a risk of physical harm. She has the mens rea to commit an unlawful act, in that she has the intention to stab, Franklin 1883, Church 1966. The test for whether it is dangerous is objective and a reasonable person would have viewed her actions as dangerous. 4. (a) Goss negligent manslaughter comes about where a duty is owed and that duty is breached resulting in a death. A doctor would owe a duty of care to his patient. There needs to be a duty of care. The negligence Page 4 of 5
needs to be gross, in that it goes beyond civil jurisdiction, Adomako 1974. (b) The doctor is guilty of gross negligent manslaughter. He had a duty of care to the security guard, he breached that duty and as a result the security guard died, Adomako 1974. (c) The security guard died as a result of the doctor s actions not the stabbing and so there was an intervening act. For medical negligence to be an intervening act it needs to be extreme and this was the case here, Jordan 1956. Page 5 of 5