Note to Candidates and Tutors: LEVEL 3 UNIT 3 CRIMINAL LAW SUGGESTED ANSWERS JANUARY 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 January 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. Malice aforethought is the intention to kill or the intention to cause GBH. 2. The actus reus will be the continuing act throughout the duration of the crime. It is necessary for the mens rea to be formed at some time during the actus reus. It can be at the beginning Thabo Meli 1954 or at the end Fagan v MPC 1969 or at some other stage; it can be present throughout as well. 3. The actus reus for basic criminal damage is set out in section 1(1) of the Criminal Damage Act 1971 and requires that property belonging to another must be destroyed or damaged. Damage includes non-permanent damage and whether there has been damage is assessed by the time and cost of rectifying the damage Hardman v Chief Constable of Avon and Somerset Constabulary (1986); A v R (1978). 4. Oblique intention otherwise known as indirect intention is where the defendant s actions are virtually certain to cause the consequences. The defendant will have one purpose in mind but in achieving it, it causes other consequences. The defendant may not even desire the consequences of his action, but the result is virtually certain. Nedrick 1986, Woollin 1996. 5. The Ghosh test is objective and subjective. Firstly you look to see if what was done was dishonest according to the standards of reasonable and honest person and if so you then go on to consider whether the defendant realised that what he was doing was dishonesty by those standards. 6. Section 2(1) of the Theft Act 1968 does not define dishonesty but it does state that there may be three situations where there is not dishonestly. Those situations are where you believe you have a right to it or where you believe the owner would have given consent or a belief that the property has been abandoned or the owner can t be found. Page 1 of 6
7. The actus reus of attempt is where there is an act which is more than merely preparatory to the commission of the offence, s1(1) Criminal Attempts Act 1981. The defendant must have gone beyond purely preparatory acts and embarked upon the crime proper. One needs to look to see if the defendant has actually tried to commit the crime rather than just preparing himself for it. Example cases showing mere preparation include Gullefer 1987, Campbell 1990 and Geddes 1996. Example cases showing an attempt include Boyle and Boyle 1987 and Jones 1990. 8. The leading case on intoxication is Majewski 1977. The case states that voluntary intoxication will be a defence to specific crimes but not to basic crimes which can be done through recklessness. The effect of intoxication is to negate the mens rea. If this does not happen then the defence will not be successful, eg Kingston 1995. 9. If duress by threats is to be successfully pleaded there needs to be a threat of death or serious harm to the defendant or a close relative. It is further necessary for there to be no safe avenue of escape for the defendant and it must be used to make the defendant commit a specific offence. The test for ascertaining whether or not there has been duress is subjective and objective.eg R v Graham (1982). 10. Strict liability is where the actus reus has taken place but there is no mens rea. Usually there is no defence to strict liability. They are known as quasicrimes as they attract very little stigma. Strict liability crimes are often found in areas such as motoring offences, health and safety, manufacturing and the food industry. Scenario 1 Questions SECTION B 1. (a) The offence that Jason may have committed is theft under s.1 of the Theft Act 1968. Theft is defined as dishonestly appropriating property belonging to another with the intention of permanently depriving them of it. The dishonesty aspect is often considered in the light of the Ghosh test. Leading example cases include Turner 1971, Wain 1995. (b) Jason has appropriated the football which belongs to the football club. Jason would be adjudged dishonest in accordance with the Ghosh test. Was what he has done dishonest according to the standards of reasonable and honest person and if so did he realise that what he was doing was dishonesty by those standards. The answer is probably yes and therefore he is potentially guilty. eg Turner 1971, Wain 1995. 2. The defence that would be used is one of intoxication. - Intoxication does not provide a defence as such, but is relevant as to whether defendant had necessary mens rea. If the intoxication does not negate the mens rea then he will still be guilty, Kingston 1995. The defence of intoxication only applies to specific intent crimes, meaning there must be intention and that recklessness is not included and thus with basic crimes voluntary intoxication cannot be pleaded, Majewski 1976. The crime of theft is a specific crime as it requires intention, recklessness is not good enough. Providing Jason can show that his drinking alcohol negated his mens rea, he may well have a defence. Involuntary intoxication, which whilst not relevant in this scenario, is a defence to both basic and specific crimes, if it negates the mens rea. Page 2 of 6
3. (a) The offence for which Jason may be charged is basic criminal damage under s.1(1) of the Criminal Damage Act 1971. The offence requires that there is either destruction of property and this includes where property may be made useless but not completely destroyed or where property is damaged. Whether or not damage has occurred is usually determined by the cost of repairing and the time taken to repair the property, eg Hardman v Chief Constable of Avon and Somerset Constabulary (1986); A v R (1978).The mens rea required is intention or recklessness and there must be no lawful excuse for causing the damage. (b) Jason intends to kick the ball and kicks it hard in an area where there are houses and is therefore reckless. It is quite likely that he doesn t intend to smash the window but this is irrelevant. The window has been destroyed and so this combined with his recklessness means the offence has been committed. 4. (a) The offence for which Jason is likely to be charged is the attempted theft of bottle of milk. The actus reus of attempt is where there is an act which is more than merely preparatory to the commission of the offence, s1(1) Criminal Attempts Act 1981.Has there been an attempt to commit a crime? One needs to look to see if the defendant has actually tried to commit the crime rather than just preparing himself for it. It is possible to attempt the impossible R v Shivpuri (1986). It can be inferred from foresight of consequences where the consequences are virtually certain to occur as a result of the defendant s actions and he is aware that this is so, but recklessness as to consequences is not enough. The mens rea for attempt is essentially that of the completed crime. Cases showing attempt include Boyle and Boyle 1987, Jones 1990 and Geddes 1996. (b) The mens rea for attempt is essentially that of the completed crime. So we need to look at whether Jason was dishonest and intended to permanently deprive the owner of his property. His quietly walking down the path seems to show a dishonest intention. He is only stopped from picking up the milk by the door opening which would tend to show his actions are more than merely preparatory and that he has intention to permanently deprive. Scenario 2 Questions 1. (a) Danielle is likely to be charged with murder. Murder is a common law offence but is defined as the unlawful killing of a human being during the Queen s peace. The defendant needs to possess malice aforethought which includes intention to kill or intention to cause GBH. (b) When Danielle smashes the glass and stabs the jagged edge into Bob there is a clear intention to cause at least GBH. She may not intend to kill but her actions are not just reckless. Bob s death amounts to murder, Bob is a human being who has died during the Queen s peace. 2. The partial defences to murder have been changed by the Coroners and Criminal Justice Act 2009 and the Homicide Act 1957 has been substantially repealed. The appropriate sections of the new act are sections 52-56. With the situation in hand we need to look at the two partial defences under the 2009 Act. The first is diminished responsibility which is similar to the old definition. We need to see whether Danielle has an abnormality of mental Page 3 of 6
functioning and whether it is a significant factor in causing her actions. It needs to arise from a medical condition and we are not told whether she has one or not, so the question of whether she can plead this partial defence is left open. Next we have to look at loss of control which replaces provocation under the Homicide Act. For the new partial defence to be used there are three criteria that need to be met. There needs to be a loss of self control, The loss of self- control comes through a qualifying trigger and finally a person of the same age and same sex might have acted in the same way. The qualifying triggers are fear of serious violence, to certain things said or done (or both) or to a combination of both these. The question in Danielle s case is whether some one of her age and sex would have acted in the way she did to be called ugly and the answer is probably not. The new provisions unlike the old provisions provide for the fact that the loss of self control no longer needs to be sudden. Once the defence is raised it is for the prosecution to disprove. It is difficult to predict what of the old case law will be relevant today but certainly the cases of R v Byrne 1960, Attorney General for Jersey v Holley 2005 would appear to be. 3. (a) In order to be able to show constructive manslaughter, sometimes known as unlawful manslaughter, it will be necessary to show that the victims death was caused by an unlawful act, an omission is not sufficient. The unlawful act needs to be dangerous and this is decided on an objective basis. The act can be aimed at property rather than the victim himself but there must be a risk of physical harm. To prove the defendant is guilty it will be necessary to show he had the mens rea for the unlawful act. Relevant cases could include Franklin 1883, Church 1966. (b) In the scenario to hand it is clear that the death has been caused by Danielle s unlawful act of assault. Danielle had the mens rea for the unlawful act as assault may be done through recklessness. It does not matter that Danielle probably had no intention to assault the old lady but never the less her actions were dangerous, even if they did not appear to be to Danielle, Franklin 1883, Church 1966. 4. (a) In order to show causation it will be necessary to show there has been causation in fact and causation in law. To show causation in fact the but for test is used. But for the defendants actions the death would not have occurred, R v White 1910.In law it is necessary to show causation by showing that the defendants actions were the main cause of the death but they do not have to be the sole cause, Pagett1983.There must be no intervening act and the thin skull rule will apply R v Blaue 1975. (b) Although the old lady has been killed by the bus it is Danielle who has caused her death. But for Danielle assaulting her she would not have fallen in front of the bus, White 1910. Danielle is the main reason for her death although not the sole reason, Pagett1983.There has been intervening act. Additionally Danielle must take her victim as she finds her and the fact that she is a frail old lady and that someone who was a bit more robust would not have fallen is no defence, R v Blaue 1975. Scenario 3 Questions 1. (a) The offence comes under s3(1) of the Theft Act 1968. There is no need for there to be dishonesty or intention to permanently deprive at the time of acquiring the property. It is possible to come by the property Page 4 of 6
innocently without stealing it. However once there is an assumption of the owners rights and an intention to permanently deprive then an offence has been committed, R v Gomez (1991), R v Morris (1983). (b) Ernie doesn t have the intention to deprive until after the event. Once he realises he has property, the money, belonging to Bolah and refuses to give it back he is appropriating property belonging to another and is intending to permanently deprive her of it. In refusing to give the money back he becomes dishonest, R v Gomez (1991), R v Morris (1983. 2. (a) The offence is one of strict liability, where there is no need to prove mens rea but the prosecution must prove the actus reus and show it was a voluntary act. (b) Usually there is no defence to strict liability offences and mistake is never allowed. On occasions it may be possible to avoid liability by showing that state of the art technology has been used and there was no way to avoid liability. There are also some statutory defences. (c) The justification for imposing strict liability is that it is there to protect the public. It also is less time consuming and more cost effective, in that the mens rea does not need to be proved. It is also argued that as it is deemed a quasi-crime there is no blameworthyness. (d) The main criticisms of strict liability is there should be no liability where there is no blameworthyness and people should not be penalised where they have taken care. In addition there is no evidence to prove that such liability improves standards and it goes against human rights. 3. (a) The mens rea of theft is dishonesty with the intention to permanently deprive. The Theft Acts do not define dishonesty, but s.2(1) of the Theft Act 1968 gives three situations where there is no dishonesty, namely believing the property is yours, believing you would have the owners consent to take the property and where you cannot reasonably find the true owner. Common law has established the Ghosh test for assessing whether someone is dishonest. The test asks would a reasonable honest person have thought it dishonest? And if so did they realise what they were doing was dishonest by those standards? (b) Bolah does not have the intention to permanently deprive and she has not been dishonest, a reasonable man would not have seen her actions as being dishonest. She has appropriate property belonging to another but she lacks the mens rea in that she does not intend to permanently deprive and has not been dishonest according to the Ghosh test, see also R v Velumyl 1989. 4. (a) This is an offence under s1(1) Criminal damage Act 1971. The Act makes it an offence for a person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged. The property must be tangible and damage includes non-permanent damage which can be cleaned off or repaired, Hardman v Chief Constable of Avon and Somerset Constabulary 1986. Page 5 of 6
(b) Bolah has clearly intended to cause damage to Ernie s car by scratching his car with her shop keys. The scratch can be repaired but it will take time and cost money Hardman v Chief Constable of Avon and Somerset Constabulary 1986. Page 6 of 6