LEVEL 6 - UNIT 3 CRIMINAL LAW SUGGESTED ANSWERS - JUNE 2013

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1 Note to Candidates and Tutors: LEVEL 6 - UNIT 3 CRIMINAL LAW SUGGESTED ANSWERS - JUNE 2013 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 2013 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 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. Question 1 SECTION A Theft is defined under S1(1) of the Theft Act 1968 (TA 1968). The Actus Reus (AR) of theft is the appropriation of property belonging to another. The AR of theft is widely interpreted: Gomez (1993) this means that liability for theft often hinges on the ability to prove Mens Rea (MR) that is the defendant (D) was dishonest. For the purposes of the offence of theft, s2(1) TA 1968 specifies three instances of states of mind which, as a matter of law, are to be regarded as honest. Therefore, D is not dishonest if: i) he honestly believes that he had a right in law to the property; ii) he honestly believed that he had or would have had the owner s consent had the owner known about the circumstances; or iii) he honestly believed that the owner could not be found even if all reasonable steps had been taken to try and find him. The burden is on the prosecution to prove that D did not have one of the specified beliefs. If the jury have a reasonable doubt that D was dishonest, then they must acquit. This negative, partial definition of dishonesty is subjectively assessed. Where s2(1) does not apply, the issue of dishonesty is left to the jury to determine as a question of fact. In Feely (1973), the Court of Appeal held that dishonesty was an ordinary word and that the jury would be expected to decide the issue by reference to the current standards of ordinary decent people. This approach was widely criticised. A number of other cases followed: Gilks (1972), McIvor (1982) and Landy (1981), all of which were criticised in the way that the issue of dishonesty was Page 1 of 17

2 resolved. This issue was resolved by Ghosh (1982) which provided a positive aspect to the determination of dishonesty. The Ghosh test has two limbs. The first, objective limb requires the jury to consider whether the honest and reasonable person would regard what D did as dishonest. Only if the answer is yes to this question can the second limb be considered. This preserves the principle that the issue of dishonesty is a matter of fact for the jury and not the judge. The main danger of this approach is the variation in standards from one jury to another. The second, subjective limb requires the jury to question whether D himself realised that the honest and reasonable man would regard what he did as dishonest. Whilst this is referred to as the subjective limb, it contains an objective element and calls for D s recognition of his objective dishonesty. Only if the answer is yes, to both the objective and subjective questions, can D be found to be dishonest. The dishonesty element in theft has become increasingly important in the assessment of a D s liability, especially since appropriation has been very widely interpreted by the courts. Delivering judgment in Ghosh Lord Lane CJ suggested that, if dishonesty was meant to categorise a state of mind, then a purely objective test of dishonesty would not be suitable because the knowledge and belief of the D are at the root of the problem. The suitability of a subjective test was also considered and criticised as a Robin Hood defence. Under a test that was only subjective, a D could argue that he did not believe his conduct to be dishonest and thus he was not dishonest; this could not be right. Lord Lane CJ contends that the Ghosh test does provide a compromise between the unsatisfactory alternatives of a purely subjective or a purely objective approach. The Ghosh test has been applauded for adding clarity to the law. It has also been severely criticised by academics, most notably by Professor Griew who argues that leaving the question of dishonesty to the jury leads to inconsistent verdicts and uncertainty in the law. He suggests that dishonesty is a question of law which should not be left to the jury. Spencer argued that the test is too complicated for juries and that it provides a defence of mistake where a D could argue that he did not realise that honest and reasonable people would regard his conduct as dishonest. The danger is that the jury may apply extremely low standards but the reverse of that is that they could just as easily apply excessively high standards. Campbell argues that the second limb of the test is not necessary where the jury are directed to consider all the circumstances under the first limb. The Ghosh test is by no means perfect but, despite its critics, the test has survived. The criticisms of it may well be valid and the law must be flexible enough to adapt to changing views in society, but should also provide consistency and certainty. With that in mind, it could be argued that the definition of dishonesty should be a matter of law for the judge, applied to the facts by the jury. This would mean that the jury could concentrate more on the states of mind specified in s2, which recognise the proprietary rights of the owner. This would then turn their attention towards the victim s property rights and D s attitude towards those rights. Page 2 of 17

3 Question 2 Insanity is a general defence and may be pleaded to any crime requiring MR, whether tried on indictment or summarily. Quite often D will not raise a defence of insanity but will put his state of mind in issue by raising another mental capacity defence such as automatism. The question of whether the defence pleaded really amounts to a defence of insanity is a question of law to be decided by the judge on the basis of medical evidence: Dickie (1984). Medical evidence is critical to this defence and if the judge decides that the evidence provided does support the defence then he should leave it to the jury to decide if D is insane: Walton (1978). The jury can return a special verdict if they find that D was insane at the time of committing the offence. This verdict is not guilty by reason of insanity. The present law in respect of the defence of insanity is contained in the M Naghten Rules (1843). Whilst the rules are not binding, they have been treated as an authoritative statement of the law since Sullivan (1984). The rules state that at the time of committing the offence, D was labouring under such a defect of reason, from a disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know, then he did not know that what he was doing was wrong. Because there is a presumption of sanity, the burden of proof rests on the defence to prove that D is or was insane on the balance of probabilities There are three main elements all of which must be established before the defence can be proven:- a) Defect of reason; b) Disease of the mind; and c) Not knowing the nature and quality of his act or not knowing that it was wrong. The phrase defect of reason was explained in the case of Clarke (1972) where the judge stated that it referred to people who were deprived of the power of reasoning and it did not apply to those who retain the power of reasoning but who, in moments of confusion or absent mindedness, fail to use their powers to the full. Disease of the mind is not a medical term but a legal term. It is concerned with the mind not conditions affecting the brain. Therefore, if D suffers from a condition that affects his mental faculties but not his brain it could support a defence of insanity: Kemp (1957). To distinguish insanity from the defence of automatism the courts have developed a test based on whether D s defect of reason was internal or external. In the case of Quick (1973) it was held that the cause of D s lack of awareness was external as it was due to his overdose of insulin not due to his diabetes per se, therefore this was automatism. Contrast this with the case of Hennessey (1989) where it was held that his lack of awareness was caused by the diabetes itself and was therefore an internal factor meaning that insanity was the correct verdict in this case. Not knowing the nature and quality of the act requires lack of awareness of the physical nature and quality of the act not its moral qualities. There must be a difference between D s action and what he thinks he is doing. The nature of the act concerns its characteristics and the quality of the act concerns the consequences of the act. D must not be aware that his actions are legally wrong. In the case of Windle (1952) it was decided that wrong meant contrary to law. The Court of Appeal (CA) was invited to reconsider the decision in Windle in the Page 3 of 17

4 case of Johnson (2007). Whilst they felt that the decision in Windle was strict, they felt unable to depart from it. There are numerous problems with the law on insanity as it currently stands. The presumption of sanity reverses the burden of proof on to D. The M Naghten Rules are based on legal definitions rather than medical/psychiatric definitions; this seems absurd when the defence has to be supported by medical evidence. It has been said that disease of the mind is too widely defined and produces illogical results. The internal/external factor test means that diabetics, epileptics and sleepwalkers could potentially be found to be insane. The definition of wrong has been criticised as being too narrow as it only applies to acts that are legally wrong and not morally wrong. If the defence is successful, D is labelled as insane, this is no longer a concept used in mental health law and is inappropriate where the underlying cause is a disease is such as diabetes. There has been some reform in the area to try and bring it into the 21 st century. The first development came in 1957 with the introduction of the diminished responsibility defence to murder which is contained in S2 of the Homicide Act (1957) (HA). The second came in 1965 when the death penalty was abolished. The impact of these developments meant that the importance of insanity as a defence has been much reduced. Under the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 trial judges were given a wider range of disposal options which include hospital supervision orders and absolute discharge. Whilst this could make the defence more attractive the label of insanity still remains. The Law Commission have produced the Law Commission s Draft Criminal Code (1989). The definition suggested by the Code is that a mental disorder verdict shall be returned if the D is proved to have committed an offence but it is proved on the balance of probabilities (whether by the prosecution or the defence) that D was at the time suffering from severe mental illness or severe mental handicap. If enacted this would further update the law in this area by replacing the label of insanity with mental disorder this is a much more medical/psychiatric definition than the current definition. The legal tests of defect of reason and disease of the mind would be replaced with the more medical/psychiatric definitions of severe mental illness or severe mental handicap. Taking everything into consideration it could be argued that the law in respect of insanity as it stands is out of date and out of touch. Whilst there has been some reform in the area, further reform is necessary if it is to become a modern defence. Page 4 of 17

5 Question 3 a) When discussing the effect of mistake upon criminal liability, it is important to appreciate that there are different types of mistake mistake of fact, mistake of law and mistakes relevant to a defence. The first instance of mistake of fact occurs when the prosecution cannot prove that D had the relevant MR for the offence at the time of committing the offence. At one time only mistakes of fact that were reasonably made could operate to negate liability. However, that was changed by the leading case of DPP v Morgan (1976) where it was held that mistakes of fact could negate liability provided they were honestly made. This decision was followed by Kimber (1983) and Williams (Gladstone) (1987) and was further confirmed by B v DPP (2000). A mistake, even a reasonable one, will not excuse a crime of strict liability: Cundy v Le Cocq (1881). In instances where negligence forms the basis of liability, only a reasonable mistake will excuse as an unreasonable mistake, by definition is a negligent one: Tolson (1889). Thus, whether a mistake will excuse will depend on the MR required for the crime. In Ellis, Street and Smith (1987), it was held that it didn t matter what the Ds thought they were importing, the important point was that they knew they were importing prohibited material. The second instance of mistake of fact occurs in situations where, if the facts had been as D believed them to be, he would have had a defence. In Albert v Lavin (1981) it was held that a mistaken belief in the necessity for self defence would only excuse if it was reasonable. The case of Beckford (1988) contradicted the aforementioned decision as it was held that the reasonableness or unreasonableness of D s mistake is material only to the credibility of the assertion that he made the mistake. If the mistaken belief was, in fact, held, its reasonableness is irrelevant: Jaggard v Dickinson (1980). The inclusion of reasonableness for this defence has led to inconsistencies with decisions. In cases of duress the requirement is that the mistake must be genuine and reasonable: Graham (1982), Howe (1987), Safi (2003) and Hasan (2005). However, in the case of Luc Thiet Thuan (1996) the defence of provocation was allowed by the court when D mistakenly believed, without reasonable grounds, that he was being provoked. As far as mistake in law is concerned, ignorance of the law is no excuse. There are a number of cases where D has tried to claim that he made a lawful mistake. In Esop (1836) D sexually assaulted another male. D was from Iraq and what he did was legal there, he tried to claim that he did not know it was illegal in the UK. He was convicted. In Lee (2000) D said that he could not be convicted of resisting arrest as his arrest was not lawful. It was established that his arrest was lawful and by assaulting the officer he formed the MR for the offence. D may, however, have a defence if he lacks the MR for the offence charged. In Smith (1974) D was charged with criminal damage. He was acquitted as he mistakenly believed that the property belonged to him. Also where D makes a mistake of law as a result of a defect of reason caused by a disease of the mind, then D is not guilty by reason of insanity: Windle (1952). Page 5 of 17

6 If the mistake made by D was induced by D s voluntary consumption of alcohol or drugs, then the treatment of the mistake varies depending upon whether the mistake would negate the MR or whether it relates to the possible availability of a defence. As far as negating the MR of a crime is concerned, voluntary consumption of alcohol or drugs will excuse crimes of specific intent but not crimes of basic intent: DPP v Majewski (1977). In relation to self-defence, a mistake of fact that has been induced by voluntary intoxication cannot be relied upon by D, even for crimes of specific intent: O Grady (1987). A defence may be available to a voluntarily intoxicated D if D carried out an act of criminal damage to what he mistakenly believed was his friend s property, as long as he could show that whilst he had damaged the wrong property, he genuinely believed it was his friend s property and that his friend would have given consent for him to damage the property in order to get in: Jaggard v Dickinson (1980). b) The law in respect of self-defence has been codified by the enactment of s76 of the Criminal Justice and Immigration Act 2008 (CJIA 2008). However, s76 has been criticised by academics as being pointless and patchy which raises the question of whether the provision was necessary to clarify the common law provision. Under common law, self-defence could be pleaded by a D who used reasonable force to protect himself from an attack which he honestly believed he would be subjected to: Palmer (1971) set down that self-defence requires proof of subjective and objective tests i.e. that D honestly believed that the use of force was necessary (subjective) and that the force used by D was reasonable in the circumstances (objective). Under common law, if a D makes a mistake, but his belief that force was necessary was honestly held, he would be able to rely upon self-defence: Williams (Gladstone) (1987). The D is judged according to the circumstances as he honestly believed them to be. This has been confirmed and was given statutory effect by s76(3). However, a mistake due to intoxication will preclude the defence as will the use of excessive or disproportionate force. The case of Martin (Anthony) (2002), raised the question of the use of selfdefence by householders who attack intruders. This case led to pressure by the media on Parliament to clarify the law on self-defence and resulted in s76. However, it can be argued that s76 fails to answer the questions posed by the media and merely restates the common law principles on self-defence and therefore, the section does not clarify the law. S76 was never intended to change the law on self-defence; its purpose was to improve the understanding of practical application of the defence. In conclusion s76 appears to have added very little to the law. It could be argued that the codification of the law has failed to incorporate the key principles of criminal law that have been developed over the years. Therefore it could be said that not only does s76 not improve the law, it actually complicates the law. Page 6 of 17

7 Question 4 Constructive manslaughter is also known as unlawful act manslaughter and occurs when D intentionally commits an act which is unlawful and dangerous and causes the death of another: R v Mitchell (1983). There must be an unlawful, positive act; an omission to act will not suffice: R v Lowe (1973). The unlawful act must also consist of a complete criminal offence (the AR and MR of the base offence must be present): R v Lamb (1967), R v Jennings (1990). The CA quashed both of these convictions as in both cases it was established that there had been no unlawful act upon which liability for constructive manslaughter could be constructed. There is no MR as such for constructive manslaughter, the MR will correspond with the MR of the unlawful act upon which liability is based. Constructive manslaughter can be based on any unlawful act whether it is a straightforward, summary only battery or something more serious: R v Church (1965), Carey and Others (2006), Gay (2006). Whilst the unlawful act must be a complete criminal offence, it need not be a crime against the person offences against property such as burglary: Watson (1989) and criminal damage: DPP v Newbury and Jones (1977) will suffice. The unlawful act must also be a dangerous act. The test of dangerousness in constructive manslaughter is an objective test and is outlined in the case of Church. This leading case established the legal principle that It is not enough that an unlawful act caused death. The unlawful act must be one that all sober and reasonable people would inevitably recognise must subject the other person to...the risk of some (albeit not serious) harm. There must be a risk of physical harm; mere fear is not sufficient: R v Dawson (1985). In R v Newbury and Jones (1977) the court considered whether D must realise that his act was dangerous. It was held that, provided that the D intentionally does an act which is both unlawful and dangerous, he need not recognise its dangerousness: there is no requirement that D foresees a risk of harm to others arising from his act. The unlawful and dangerous act must be the cause of death. The ordinary rules of factual and legal causation will apply: R v White (1910), Pagett (1983). White established the but for test for factual causation by asking whether the victim would have died but for D s action. If the answer to this question is no, then D was the cause of death and factual causation is established. Once factual causation has been established, legal causation must also be established to prove criminal liability. It was held in Pagett that D s act need not be the sole cause, or even the main cause, of death provided it is a cause in that it contributed significantly to that result. This is sufficient to prove legal causation. There have been a number of cases involving drug dealers where proving causation has been a problem. This being whether there has been intervening act between supply/injection of a drug and death. The situation has been clarified in the following way:- a) Where D actually injects V with a drug and V dies, then D may face liability for constructive manslaughter: R v Cato (1976); however, b) Where D hands over the drugs and V self-administers the drug (and dies), then D is not liable for constructive manslaughter as the chain of causation is broken: R v Dalby (1982), R v Dias (2001) and R v Kennedy (2007). Page 7 of 17

8 It does not seem fair that a person can be convicted of constructive manslaughter on the basis of committing common assault. Did the CA set down too low a threshold for the liability for constructive manslaughter in Church? Should the objective test for dangerousness require the risk of serious harm at least? Should the test for dangerousness be subjective and not objective? These are questions that have, in part, been addressed by the Law Commission s papers, A New Homicide Act for England and Wales? (Consultation Paper No 177), published in December 2005 and Murder, Manslaughter and Infanticide (Law Com No 304), published in November The first paper attempts to create a three point structure for homicide offences, these being first degree murder, second degree murder and manslaughter. The proposal in respect of constructive manslaughter is that it remains as manslaughter but would be defined as a circumstance where D has committed a criminal act, intending to cause physical harm or with foresight that there was a risk of causing physical harm. The main difference is that the proposal requires foresight by D of at least a risk of causing harm, which is a subjective test as opposed to the objective test set down in Church. The latter paper amends the definition slightly. Constructive manslaughter is defined as occurring where death was caused by a criminal act which was intended to cause injury, or where there was an awareness that the act would involve death or a serious risk of causing injury. Both of these proposals would raise the threshold in respect of liability for manslaughter to a more acceptable level. To date, none of the aforementioned proposals have been implemented but neither have they been ruled out by the Government. Whilst the Government s response to these proposals has been less than enthusiastic, it has not ruled out considering them at a later stage. To conclude, it does seem unjust that a person could be convicted of constructive manslaughter based on a less serious offence but, if the proposals suggested by the Law Commission were implemented, this would place a higher level of responsibility on D for his actions. Page 8 of 17

9 SECTION B Question 1 There are a number of fraud offences for which Fatima could be found criminally liable in this case. Under s1 Fraud Act 2006 (FA), fraud can be committed in a number of ways. s2 provides for fraud by false representation, s3 provides for fraud by failing to disclose information, s4 provides for fraud by abuse of position and s11 provides for obtaining services dishonestly. Although these are four distinct methods of committing fraud, dishonesty is a MR element that is applicable to all methods and the Ghosh (1982) test should be applied, together with a requirement that the D either intended to make a gain for himself or another, or to cause loss to another. Mortgage application In relation to the mortgage application Fatima could be guilty of either fraud by false representation under s2 FA or fraud by failing to disclose information under s3 FA. The AR for s2 FA requires that Fatima makes a false representation, which she does when she ticks the box marked no. The MR requires that Fatima knows that the representation is or might be untrue or misleading under s2(2)(b). As Fatima suspects that Andrew may have taken out a loan, she knows that the representation might be untrue. As proof of dishonesty is required, the Ghosh test must be applied. The objective limb requires that the honest and reasonable person would regard declaring that the couple have no loans when Fatima suspects that Andrew may have a loan as dishonest. The subjective limb requires consideration of whether Fatima realised that the reasonable and honest person would regard this as dishonest. If the answer to both limbs is yes then she will be dishonest. Finally consideration would have to be given as to whether Fatima intended to make a gain for herself or another or cause loss to another s2(1)(b). Under s5(2)(a)gain and loss extend only to gain and loss of money or other property. In this case, by completing the mortgage application Fatima intends to gain property. Alternatively, she could be charged under s3 FA fraud by failing to disclose information. By ticking the box marked no, she is not only making a false representation, but is also failing to disclose the loan that Andrew has taken out. The AR of this offence requires that D fails to disclose information which he has a legal obligation to disclose. The MR requires that Fatima is dishonest and has an intention to make a gain or cause a loss as above. Therefore, Fatima is likely to be guilty of fraud by false representation and may also be guilty of fraud by failing to disclose information. Page 9 of 17

10 Cashpoint machine withdrawal By using Andrew s cashpoint card to withdraw money from a cashpoint machine Fatima may be guilty of fraud by false representation under s2 FA. She makes a false representation of fact to the cashpoint machine that she has the authority to use the card in question: Doukas (1978), Stonehouse (1978) and Darwin and Darwin (2008). Under s2(5) a representation is made if it is submitted in any form to any system or device designed to receive, convey or respond to communications (with or without human intervention). Thus, using Andrew s cashpoint card in the cashpoint machine and inputting his PIN number will be sufficient for a false representation. As far as the MR is concerned, Fatima knows that the representation that she is making to the cashpoint machine is false and she obviously intended to make a financial gain for herself. It is irrelevant that Andrew would have consented to her use of the cashpoint card as the representation is made to the cashpoint machine not to Andrew. The sticking point here may be the application of the Ghosh test. When considering dishonesty the jury/judge/magistrates might take into account the relationship between Fatima and Andrew and whether it was likely, in the circumstances, that Andrew would have consented to Fatima using his cashpoint card and whether the account was a joint one or not. However, in this case the fraud is practised against the cashpoint machine and arguably the bank, so Andrew s consent could be considered to be irrelevant. If Fatima s conduct is found to be objectively dishonest then she will be convicted of fraud if she realised this. Ocean View Yacht Club funds In respect of her personal use of the Ocean View Yacht Club funds, Fatima could be convicted of fraud by abuse of position under s4 FA. Whilst abuse and position are not defined under the FA, it is likely that the offence will apply because, as Treasurer of the club, Fatima occupies a position in which she is expected to safeguard, or not to act against, the financial interests of another person under s4(1)(a) FA: Doukas (1978). s4(1)(b) requires an abuse of that position which Fatima does when she spends the funds to buy a handbag. The MR requires proof of dishonesty by abuse of position (s4(1)(b)) and the application of the Ghosh test. The honest and reasonable person would certainly regard Fatima s conduct as dishonest and Fatima should realise this. Fatima also intends to make a gain for herself by means of the abuse of her position. Fatima is highly likely to be guilty of fraud by abuse of position in relation to the Ocean View Yacht Club funds. Bus Pass In respect of her use of the bus pass which she found on the pavement, Fatima could be convicted of obtaining services dishonestly under s11 FA. The AR for s11 requires that Fatima obtains services which are not paid for or not paid for in full. When she uses the bus pass she obtains the services of the bus to get home; she has not paid for the journey so the AR is satisfied. Page 10 of 17

11 The MR requires that in obtaining the services she acted dishonestly, knowing that the services are, or might be, made available on the basis that payment has been, or will be, made for them and she did not intend to pay for the services. When she got on the bus she knew that the service had been made available on the basis that payment would be made for the journey and she had no intention of paying as she intended using someone else s bus pass. Applying the Ghosh test, the honest and reasonable person would regard Fatima s conduct as dishonest. Fatima should also realise that her conduct is dishonest as she is using someone else s bus pass to pay for her journey home. Fatima is likely to be guilty of obtaining services dishonestly in relation to her use of the bus pass. Question 2 This question requires consideration of the criminal liability of Sam, Barry and Hamit, together with any defences that could be available to Sam. Liability of Sam The first offence to consider here would be the assault on Lynne, which is likely to be Grievous Bodily Harm (GBH), under s18 or s20 of the Offences Against the Person Act 1861 (OAPA). S20 OAPA is the unlawful and malicious wounding or inflicting of GBH upon any other person, either with or without any weapon or instrument. A wound consists of a break to both layers of skin: Eisenhower (1984). GBH means serious harm : Smith (1961), Wood 1830 and Bollom (2004). There must be foresight (or intention) of causing some harm: Mowatt (1968) S18 OAPA is unlawfully and maliciously by any means whatsoever wounding or causing any GBH to any person with intent to do GBH. The AR of the offence is the same as that for s20 OAPA.The difference lies in the MR of the offences. For a s20 offence there must be an intention or recklessness as to some harm. For a s18 offence there must be a specific intention to cause GBH; this makes s18 a more serious offence. When Sam knocked the plant pot off the balcony and hit Lynne on the head it was an assault. The injuries sustained by Lynne were a fractured skull and a deep laceration to her scalp which required stitching. These injuries would substantiate an offence under s18 or s20 OAPA. When Sam knocked the plant pot off the balcony she did not intend to cause Lynne GBH. However, she may have been aware that there was a risk that her actions could cause some physical harm: Mowatt (1968). Furthermore, in certain circumstances excessive consumption of alcohol may itself amount to recklessness. Therefore, Sam could be criminally liable for an assault under s20 OAPA against Lynne. Sam could consider a defence of intoxication. There are two types of intoxicants that need to be considered, dangerous and non-dangerous: Bailey; Hardie (1984). Dangerous intoxicants such as alcohol, heroin and amphetamines, are those that are known to cause the taker to become aggressive or unpredictable. Non-dangerous intoxicants are those that are expected to be merely soporific or sedative. We know, therefore, that Sam took a dangerous intoxicant in the form of alcohol, which made her actions unpredictable. Page 11 of 17

12 Next we must ask Was Sam s intoxication involuntary or voluntary? Involuntary intoxication occurs when a drink is spiked, prescribed drugs are taken in excess or non-prescribed but non-dangerous drugs are taken: Bailey; Watkin Davies (2001). This is not the case here. Voluntary intoxication occurs when there has been voluntary taking of dangerous drugs or drinking alcohol to excess. Sam was voluntarily intoxicated by choosing to drink alcohol to excess. Whether she can use the defence will depend on whether the crime was one of specific or basic intent. In this case the offence is s20 OAPA 1861 which is a crime of basic intent. This means that the defence of intoxication would not be available to Sam as she was reckless in drinking the alcohol: Majewski (1976). Liability of Barry S39 Criminal Justice Act 1988 (CJA 1988) concerns common assault. Common assault is an act by which a person intentionally or recklessly causes another to apprehend immediate, unlawful personal violence. There does not have to be any contact, the offence can be committed using words alone: Constanza (1997). Silence can also amount to an assault: Ireland (1998). Applying this to the facts, when Barry raised his fist at Hamit and threatened to knock him out and take him to the police station, Barry could have committed an assault. The fact that he then grabbed Hamit s arm would indicate that this could be the case and that Hamit may have apprehended immediate, unlawful violence. The next offence to consider in respect of Barry is Battery under s39 of the Criminal Justice Act Barry intentionally or recklessly: Venna (1975), Savage; Parmenter (1989) inflicted personal violence on Hamit by grabbing his arm: Rolfe (1952). Hamit did not give Barry permission to assault him, therefore the contact was both physical: Ireland; Burstow (1998) and unlawful. Barry carried out an unprovoked assault on Hamit. He grabbed him by the arm, which means that he intended to cause unlawful violence but was reckless what the result would be. There is no suggestion of any resulting injury, therefore, Barry would be liable for common assault under s39 CJA in respect of the unprovoked assault on Hamit. Although Hamit panicked and was fearful of an assault by Barry, mere emotions such as fear, distress or panic are not sufficient to support a charge of s47 OAPA: Chan-Fook (1994), Ireland; Burstow (1998). S20 OAPA could have been considered but should have been discarded as the level of injury is insufficient for this offence. Liability of Hamit As far as Hamit is concerned we need to consider the assault on Barry. Due to the level of injury it would be an offence under either s47 or s20 OAPA. S47 OAPA concerns an assault occasioning Actual Bodily Harm (ABH) and is the intentional or reckless infliction of unlawful violence upon someone: Savage; Parmenter (1991). ABH refers to an assault which interferes with the comfort of the victim and is more than transient or trifling: Miller (1954) and T v DPP (2003), and there has to be an injury: Chan-Fook (1994). Page 12 of 17

13 When Hamit punched Barry it was an assault. The injuries sustained by Barry were a dislocated elbow and a black eye. This would constitute an injury which was more than transient or trifling and would interfere with his comfort. Hamit should have been aware that there was a risk that his actions towards Barry could cause him injury. S20 OAPA is the unlawful and malicious wounding or inflicting of GBH upon any other person as detailed above. The injury sustained by Barry would probably not be an assault under s20 OAPA as the level of harm is not serious enough. Hamit would therefore be liable for an offence of ABH under s47 OAPA in respect of the assault on Barry. Question 3 This question requires consideration of dishonesty offences together with any defence that could be available to Jenni. Theft of 10 Under s1 of the Theft Act 1968 (TA) a person is guilty of theft if he/she dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it. Under s3 appropriation is any assumption of the rights of an owner. An assumption of one of these rights is sufficient for appropriation; in Morris (1983) it was changing the labels on goods, which only the owner could do. Under s2 dishonesty is defined by what is NOT dishonest; which includes if D believes he would have the owner s consent to the appropriation. The question will be whether they honestly believe in that consent; to which the Ghosh test may guide a jury. In Ghosh (1982) a two limbed test was established and both limbs must be satisfied to prove dishonesty. Firstly was D s appropriation dishonest according to the ordinary standards of reasonable and honest people? This is the objective element and only if the answer to this question is yes would you proceed to the next limb; Was D aware that reasonable and honest people would regard this appropriation as dishonest? This is a subjective test and if the answer is yes then D is dishonest. Under s6 it is sufficient that D has the intention to permanently deprive: Morris (1983) Wheatley and another (2006). Intention can be inferred if D intended to treat the property as his own by disposing of it regardless of V s rights: Cahill (1993) Lloyd (1985). When Jenni took the 10 from her grandmother s purse without her grandmother s permission, she intended to use it to buy alcohol and cigarettes. She had no intention of returning it. Jenni would be liable for Theft under s1(1) TA. Attempted burglary Under s1(1) Criminal Attempts Act 1981 (CAA) to be guilty of attempting to commit an offence a person must perform an act which is more than merely preparatory to committing the offence, intending to commit the offence and Page 13 of 17

14 intending to bring about the result, and knowing that the surrounding circumstances would be in existence or was reckless as to this. At common law the act had to be sufficiently proximate to the crime: Eagleton (1835). The CAA requires an act to be more than merely preparatory to the commission of the crime: Gullefer (1990), Jones (1990), Litholetovs (2002), Tosti (1997), Moore (2010). When Jenni prised open the window and was about to climb into her grandmother s flat, she did an act which was more than merely preparatory as the only part of the act left was to steal the money. The MR for an attempt is an intention to commit the full offence and recklessness in respect of any circumstances surrounding it: Khan (1990). Therefore, it did not matter whether Jenni knew that her grandmother was asleep or not or whether she was reckless as to whether she would wake up. The fact that she intended to commit burglary was sufficient for the offence. Jenni would be liable for attempted burglary under s1(1) CAA. Burglary Under s9 of TA a person will be guilty of burglary if he enters any building or part of a building as a trespasser with intent to steal, inflict grievous bodily harm (GBH) on any person therein or to cause criminal damage to the building or anything therein or, after having entered any building or part of a building as a trespasser he steals or attempts to steal or inflicts or attempts to inflict GBH on any person therein. S9(1)(a) requires that there was an intent either to steal or to inflict GBH or to cause criminal damage when D entered the premises. On the facts provided it could be said that when Jenni entered the property she did so with at least a conditional intention to steal; that being the case, she would be liable for burglary under s9(1)(a) TA In this case Jenni knew that she was trespassing as she did not have her grandmother s permission to be in the flat: Collins (1973). Having entered as a trespasser, she did steal personal property belonging to the owner. There is no requirement of prior intent to commit an offence for an offence under s9(1)(b), however to prove a s9(1)(b) offence, theft or GBH has to be committed or attempted. Jenni also satisfied s1 TA 1968, as set out above, as she entered the property and once inside she appropriated money which belonged to her grandmother, with the intention to permanently deprive her grandmother of the money by giving it to her brother. By applying the Ghosh test we can also show that she was dishonest. The relevant charges for Jenni are offences of burglary under s9(1)(a) and/or s9(1)(b) TA Page 14 of 17

15 Defences The defence of duress of threats may be available to Jenni. To successfully plead a defence of duress of threats the defence must be able to adduce evidence that the threat was of serious personal injury or death: Hudson and Taylor (1971), DPP v Rogers (1998), the threat must be towards D or a member of his immediate family or some other person for whose safety D would regard himself responsible: Wright (2000), the threat must be immediate: Hasan (2005) not imminent, D must take advantage of any reasonable opportunity to escape or to raise the alarm: Gill (1963), D should seek police protection if possible: Hudson (1971). The defence is not available if D just reacted to the threats and the threat must be one that the ordinary man could not have resisted: Graham (1982). D s belief in the threat must be reasonable: Nethercott (2001), Safi and others (2003), and that belief must have given him good cause to fear the consequences threatened. An objective test will also be applied which is, if the ordinary person sharing the same characteristics as D would have resisted the threats, the defence is unavailable: Hegarty (1994), Horne (1994), Bowen (1996). Jenni could not have used the defence initially as Simon only threatened to tell their father about Jenni stealing money from her grandmother. However, when she did not complete the burglary Simon threatened to slash her with a knife which he had with him at that time. This could be regarded by Jenni as a threat of immediate serious personal injury to her. She did not have the opportunity to escape or call the police as Simon went with her to the flat and waited outside for her. Jenni had a reasonable belief that Simon would do as he had threatened if she did not commit the offence. Jenni may be successful in pleading this defence in respect of the burglary of her grandmother s flat. Question 4 This question requires consideration of the offences of criminal damage, murder and manslaughter together with any defences that may be available to Ben. Criminal Damage When Ben slashed the tyres on Ivan s bike he committed the basic offence of criminal damage contrary to s1(1) of the Criminal Damage Act 1971 (CDA 1971). This offence requires proof that D intentionally or recklessly destroyed or damaged property belonging to another without lawful excuse. The damage need not be permanent: Gayford v Choulder (1898) but must be more than trivial: Fiak (2005), A (a juvenile) v R (1978) and the victim must be put to some expense in rectifying/repairing it: Roe v Kingerlee (1986). It was held in Hardman v Chief Constable of Avon and Somerset (1986) that painting on a pavement in soluble paint was sufficient to constitute damage. Therefore, slashing Ivan s tyres would constitute damage. The bike is the personal property of Ivan s10(2) CDA 1971 and Ben would have no lawful excuse for damaging the bike, thus the AR for the offence is satisfied. The MR for a s1(1) offence requires proof that D intended or was reckless in causing the damage. It is quite obvious that that Ben intended to cause the damage in this case. Page 15 of 17

16 When Ben slashed the tyres on Ivan s bike he is guilty of simple criminal damage under s1(1) as the tyres are permanently damaged. They are the property of Ivan and Ben would have no lawful authority for causing the damage: s5(2)(a) CDA Murder/Manslaughter Here we must consider Ben s potential criminal liability for Ivan s death and whether any defences would be available to him. Ben has caused the death of Ivan in both fact and law. There is no evidence of anything that would suggest a novus actus interveniens. The first offence to consider would be murder. The definition of murder is the unlawful killing of a human being with malice aforethought. There is no problem here with the AR being satisfied as Ben caused the death of Ivan. A potential problem for the prosecution would be proving that he did it with malice aforethought which means an intention to cause death or GBH: Vickers (1957). In order to support a charge of murder the prosecution will have to establish that Ben intended to kill Ivan or intended to do him some GBH: Moloney (1985), Woollin (1998). The prosecution may also consider a guilty plea to voluntary manslaughter. This is the term used for killings where the defendant has the requisite MR for murder but has a partial defence which would reduce the charge from murder to voluntary manslaughter. It could be argued that Ben has a partial defence in loss of control as he may satisfy the requirement that he lost his self-control and the loss of control was due to the qualifying trigger that he feared serious violence towards Daisy or himself. However this defence could fail if the jury believe that Ben acted with a considered desire for revenge. He would not satisfy the elements of the defence of diminished responsibility so that would not be applicable in this case. The final offence that may be relevant here is involuntary manslaughter. This is the term used for killings where the defendant does not have the requisite MR for murder. There are two main types of involuntary manslaughter, gross negligence manslaughter: Adomako (1994) and unlawful and dangerous act manslaughter: Church (1965). Gross negligence manslaughter need not be considered as there is no duty of care. If the MR for murder could not be proved, unlawful and dangerous act manslaughter could be a possibility based on a base offence of GBH. However, Ben would probably be charged with murder as he should have foreseen that death or GBH would be a virtually certain result of his actions: Nedrick (1986); Woollin (1998). Potential defence The most obvious defence that would be available to Ben is self-defence. When he heard Ivan approach him from behind he genuinely believed that he would be assaulted: Williams (Gladstone) (1987) and when he stabbed Ivan it was a preemptive strike: Beckford (1988). Self-defence can be considered under both common law (private defence) selfdefence and/or possibly statute (public defence) under s3(1) of the Criminal Law Act 1967 (CLA 1967). Both of these defences are now governed by the guidelines established under s76 of the Criminal Justice and Immigration Act 2008 (CJIA 2008). Page 16 of 17

17 Self-defence permits a person to use reasonable force in protection of himself or others: Rose (1884), Duffy (1967). The issue with this defence is usually whether the force was reasonable in the circumstances. The evidence indicates that Ben thought he was going to be attacked by Ivan and was motivated in his actions by a desire to stop Ivan from attacking him, he was neither looking for a fight nor was he motivated by any desire for revenge, as he was walking away from Ivan after damaging his bike. A jury would decide whether Ben s actions were reasonable. They would have to consider whether Ben honestly believed that it was necessary to defend himself and, if so, on the basis of the facts and the danger perceived by Ben, was the force used reasonable? If the answer is yes to both points then they must acquit Ben of murder. However, if they accept that his actions were to protect himself but that he went beyond the use of reasonable force then he would have no defence under common law: Clegg (1995). The public defence created by s3(1) CLA 1967 permits the use of reasonable force to prevent the commission of an offence. CJIA 2008 confirms that the same principles apply to both the private and public defences in relation to the concept of reasonable force and mistaken belief. The attack on Ivan clearly involved the commission of an offence. The issue will be whether the force used by Ben was reasonable in the circumstances. The burden of proof would be on the prosecution to prove that the actions of Ben were not reasonable in the circumstances. If it was decided that the force used by Ben was excessive, then the defence will fail. As it is a complete defence, it cannot reduce a charge of murder to manslaughter: Clegg (1995). Ben would either be convicted or acquitted. Page 17 of 17