LEVEL 6 UNIT 3 CRIMINAL LAW SUGGESTED ANSWERS - JUNE Note to Candidates and Tutors:

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1 LEVEL 6 UNIT 3 CRIMINAL LAW SUGGESTED ANSWERS - JUNE 2011 Note to Candidates and Tutors: 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 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. SECTION A Question 1 (a) When an offence is described as being of strict (or absolute) liability, it means that the offence does not require the perpetrator to have any mens rea in relation to at least one part of the actus reus. This means that the offence can be committed without fault- intent, recklessness or even knowledge. Strict liability offences are almost all statutory and often involved regulatory offences. Being largely statutory, there is occasional uncertainty as to whether an offence is one of strict liability or not. The courts have therefore had to develop guidelines for their approach to such matters. Gammon (1985) sets out the broad guidelines. The courts start from the premise that all criminal offences normally require means rea in relation to every aspect of the actus reus. This presumption will be given greater significance dependant on the seriousness of the come. All major crimes, which involve also breaches of morality and consequent stigma to those found guilty, will be assumed to carry mens rea, even where that is not totally clear in the definition. A clear example of this approach is in the case of Sweet v Parsley (1970) where a landlady of tenanted premises was prosecuted for being concerned in the management of premises used for drug use. The House of Lords held that the offence, though not specifically drafted as involving mens rea, should be interpreted as though knowingly was included within the definition. The stigma applicable on conviction of such offences was deemed to be crucial. However, Lord Scarman in Gammon said that such a presumption could be displaced by clear words in the statute and in particularly by considering the subject matter and its relevance (or not) to public safety and the social concern in preventing the particular type of offence. Other guidelines referred whether strict liability would assist in prevention, and the severity of the penalty. Blake 1977 is an example of a situation where strict liability was held applicable to encourage legal compliance with wireless telegraphy rules. Page 1 of 14

2 Gammon being a PC case must be read in the light of B v Dpp (2000) and K (2001) HL ( both of which have been criticised in their particular application) which indicated that the presumption of mens rea was strong and it could only be displaced by clear words or necessary implication in the statue However, courts still appear to consider the guidance above. (b) The criminal law is generally concerned with blameworthy actions, and in allocating responsibility and hence punishments to those who are aware of a) what they are doing ( i.e. acting voluntarily) and b) are aware of some level of risk that their actions bring about. This approach has been recently been given greater prominence in the move to subjectivism visible in e.g. R v G and ors in relation to recklessness and in the development by now) statutory defence of self- defence. Whether looking at offences or defences, the law rarely attaches liability where no blame can be attributed, through lack of understanding or awareness. Where people are or can be punished, despite not being morally culpable, that act can be seen itself as immoral and can thus bring the criminal law into disrepute. Additionally the law ceases to have a purpose. If one of the reasons of allocating punishment is to deter, this purpose is rendered impossible if the offender could not have refrained, because he did not mean to infringe. Thus it can be said that it is immoral to attribute criminal liability in strict liability situation. However, when one examines the most common areas in which strict liability offences arise, there are both practical and moral arguments in favour of (limited) strict liability. Firstly in many such situations there exists a due diligence defence which exonerates the defendant if he has taken reasonable care to avoid the offence. The effect of the defence may in some cases be to place a legal burden of proof on the defendant, but the defence does meet that argument in principle: only the culpable should thus be held responsible. There are further arguments in favour of strict liability: where the offence relates to commercial matters it emphasises the points that businesses should be run properly. Commission of the actus reus of an offence (such as selling food unfit for human consumption) demonstrates that the business in not being run properly. It also creates a level playing field for businesses: they all must be run properly or an offence is committed. Many of the offences have direct public protection impact and this is held to be a practical justification, as is the often difficulty of proof. Lack of possession of a licence, or insurance etc would be difficult to prosecute if each case required the prosecution to show some element of deliberateness pr even awareness. It is also argued that the existence of the strict liability offences demonstrates the public disapproval of the conduct prohibited, and encourages a high standard of care. They reduce the time and difficulty in proving mens rea in petty prosecutions whilst allowing the defendant still to assert his lack of blameworthiness. Many of the issues can be satisfactorily dealt with by traders undertaking risk assessments and engagement in insurance: the more care they take, the lower the risk and insurance. Page 2 of 14

3 One of the most controversial areas are in relation to the possession of drugs where an element of strict liability is present even where such serious offences are involved: Warner held that possession of drugs was made out if the defendant was aware he had something even if he did not know what it was. (There is of course a defence if the defendant can prove lack of knowledge) The approach seems to be based on public protection and/or the difficulties of enforcement but seems like the policy approach common when drugs cases come before the courts. Whilst the strict liability of accidental criminal may seem immoral, an examination of both practicalities and principled arguments may suggest that the risk can be accepted. Question 2 The approach of the law to defendants who cause risk either to themselves or others generally is that by causing the dangerous situation they must accept liability for anything that follows. This general approach informs in part the law s approach to intoxication, which also recognises that much crime is caused or contributed to by alcohol or drugs and seeks to ensure that a defendant cannot avoid liability for a crime by relaying on conduct which itself is not to be encouraged. Nevertheless, the criminal law generally accepts that if a defendant does not have the relevant mens rea for an offence, he is not guilty. Reconciling the two approaches in cases where the lack of mens rea may be caused by ingestion of drugs or alcohol has caused some of the apparent anomalies. In order to consider these points it is necessary to first of all identify what is included in the term intoxication and then to examine the rules that apply to intoxicated defendants. Intoxication in law concerns those whose actions or understanding are significantly impaired by drink, drugs are any other substance (such an inhalation of fumes). In keeping with the principles set out above in relation to fault, those who become involuntarily intoxicated, i.e. through no fault of their own, are treated differently from those who have brought about their own impaired state. Involuntary intoxication occurs where the effect was caused by a medically prescribed drug such as the unexpected consequences of taking a soporific drug caused aggression (Hardie (1984)), where a defendant has his non alcoholic drink spiked, where he is physically forced to take intoxicants, or where the defendant takes an intoxicant believing it to be non intoxicant (as in Hardie above). However merely mistaking the strength of alcohol would not bring a defendant into the category of being involuntarily intoxicated (Allen 1998). Nor is a defendant able to rely on intoxication where the alcohol reduces their inhibitions (Kingston 1995). However, whenever a defendant can properly rely on the fact (a matter for the jury to judge) that he was voluntarily intoxicated, the question becomes relevant to an assessment of mens rea. The question became one of fact: did the defendant actually have the relevant mens rea for the specified crime? Assessing the state of his intoxication might well be an explanation of why he did not recognise the natural (s 8 CJA 1967) (or virtually certain) consequences of his action (in offences involving intention) or why he was unaware of the risk he was Page 3 of 14

4 running (in offences involving recklessness) Voluntary intoxication is thus a factor to be taken into account when assessing the facts of the case and whether relevant mens rea has been proved. Involuntary intoxication is however more problematic and this is where policy may over ride principle, as voluntary intoxication is seen as culpably bringing about a risk. The leading HL case of Majewski 1977 sets out the framework for dealing with such cases and differentiates between offences of specific and basic intent. The latter are offences where the requisite intention does not go further than intention to do the act itself (such as common assault), whereas specific intent offences have a further or specified intent usually to bring about a specified result (e.g. murder or s 18 OAPA). Some offences can have both a basic and a specific intent version such as criminal damage (Caldwell) Majewski laid down that voluntary intoxication was only capable of being a defence to offences of specific intent, and would provide a defence if in fact the defendant had not formed the specific intent required. (This approach is much in line with the principled approach set out above, and adopted by the criminal law generally). However, policy takes over in relation to basic intent offences. Majewski holds that voluntary intoxication is not capable of providing a defence to basic intent offences. These tend to be offences where the mens rea of the offence is or includes recklessness. The approach is sometimes stated as that getting drunk provides the recklessness for the offence. The abolition of Caldwell recklessness by R v G, specifically did not affect this approach. When Majewski was decided, it was accepted in the HL that there were some logicalities; intoxication avoided mens rea in specific intent cases, but provided it in basic ones, but the need to protect the public and to uphold the public s regard for the law in dealing with violent drunks was deemed sufficient to overcome the needs of logic (Lord Salmon). Question 3 Offences involving physical contact or violence demonstrate the conflict between two cardinal principles of the criminal law. On the one hand, personal autonomy dictates that those individuals (or at least those with sufficient maturity and understanding) should be able to make decisions about the circumstances in which they are willing to be touched by others (whatever the motive for the touching). On the other hand, the principle of personal protection dictates that the function of law is to protect individuals from harm. The subject matter of this essay concerns situations where those two principles may conflict. The general approach of the law is that where actual bodily harm is intended or caused by the act of the defendant even to a consenting victim, the act thereby becomes unlawful, unless the context of the activity is one accepted as providing an exception. (AG ref 6 of 1980, Brown 1994). Thus the principle of autonomy gives way where actual harm is inflicted, or intended. There are many situations where individuals routinely allow harm, to be inflicted upon them, most obviously in contact sports and consenting to surgery. The principle become problematic however in the examination of the exceptional circumstances where consent even to gbh (but never, incidentally, to murder) is Page 4 of 14

5 permitted. These including properly conducted games and sports, including boxing, medical interventions, ritual circumcision, tattooing, dangerous exhibitions, lawful parental chastisement (all referred to in the cases mentioned above). Aitken 1992 added a controversial category of rough and undisciplined horseplay to the list. It is the list of exceptions where consent if actually given, by an individual who can lawfully give consent (there are statutory age limitations on tattooing for example) provides a defence to even the infliction of serious harm, which provides pause for thought. The exceptions are all said or accepted in the cases to be socially useful situations, situations which have public support. It is however the judiciary who have amassed over time the list of socially useful pastimes. Boxing where the purpose (at least in the professional game) is to knock the opponent out may not be supported by a majority of the population. It is however a legal pastime and it is no role of the judiciary to surreptitiously criminalise a legal activity. Parental chastisement, oddly included as an example of where the victim consents to the harm being inflicted, has been overtaken by a statutory provision criminalising activity where abh is inflicted. Properly, common law did not criminalise normal parental activity, but statute could (and arguably did). It was however in the case of Brown that controversy arose, where a group of consenting males indulged in sado masochistic activities, occasioning some degree of harm to themselves, (but not of a degree which occasioned hospital treatment or long lasting harm). The House of Lords, in a decision subsequently ratified in the ECHR sub nom Laskey et al, held that such activities, where actual bodily harm is intended and /or caused, were not and could not be included with in the list of exceptions and so were unlawful. The decision was by a majority with different views being explored as to whether the purpose of the activities was violence and the setting sexual, or whether the true purpose was a sexual one with a by-product of harm. The former view would tend to suggest the activity should be criminalised, the latter that it was a private matter in which the law should not intervene. Alternatively, it could have been argued that sexual activity was a social useful one for the law to permit. It should be noted that the activities per se did not constitute particular sexual offences: only if the harm caused brought the individuals within the ambit of s 47 or s 20 OAPA, was an offence committed However the majority view prevailed with some reliance apparently been given to the possibility of greater harm through infection (it was more by good luck that no serious harm was caused) the possibility of corruption of the victims and the interest of society in public protection. The minority view relied on the fact that harm and corruption had not occurred, and that criminalisation was for Parliament. Controversy over the decision was heightened after the subsequent case of Wilson 1997, where a wife s consent to her husband burning his initials on to her buttocks was held to be acceptable, as akin to and no more dangerous than tattooing, and was akin to body piercings (which also appeared to be accepted by analogy with tattoos). The argument of the minority in Brown; that this was a Page 5 of 14

6 matter of marital privacy appeared to hold sway; leading to further criticism in that there was one rule for married (and thus heterosexual) partners and another for homosexual ones. Emmet 1999 apparently laid rest to that argument where consent was held to be no defence when a man semi asphyxiated his willing female partner and set fire to lighter fuel on her body. It is in the examination of the cases involving a sexual context that the question whether the determination of what is socially useful lies in the hand of the judges. It is of course appropriate that they should reflect society s views, and in the current framework allow some latitude as to acceptable behaviour, it is no function of the judiciary to effectively criminalise otherwise lawful behaviour (Knuller) by determining what is or is not within the list of exceptions. As could be suggested from the case of Brown, such an approach is susceptible to the person viewpoint of the judges concerned. Question 4 (a) An attempted offence lays the person responsible open to be charged, prosecuted and punished just as for the substantive offence. The attempted version arises most often when a crime is interrupted, perhaps, but not necessarily, by the police or where it fails: is unsuccessful in some way. The role of the attempted offence largely rests on two factors. Firstly, on a matter of public protection and law and order. If there was no offence of an attempted specified crime, then punishment would not be possible until after a crime had been committed: there could be no prosecution for attempted murder, but only for murder: intervention before the offence would then result in no crime being committed. Secondly, and linked to the former, the culpability of the perpetrator of an attempted crime is exactly the same as one who carries it out (save perhaps in the circumstance of a later withdrawal from a crime). It is often a matter of chance and unrelated to the defendant s activities or blameworthiness whether a crime actually results. However a problem arises. If the substantive offence is not committed, for whatever reason, liability might arise in connection with anyone who starts to think about, or at least embarks on the early stages of a crime. Withdrawal and change of mind would not be rewarded, and the courts could in theory be full. A line therefore has to be drawn as to as what stage preparation turns into a prosecutable offence. The answer can be found in the definition of attempts in the Criminal Attempts Act 1981, which states that if a person does an act which is more than merely preparatory to the commission of an offence, with the intention to commit it, then they are guilty of attempting that offence. The difficulty lies in determining what is meant by more than merely preparatory. Although the courts have attempted to lay down guidance, actual decisions seem to be on a case by case basis. For example in Gullefer (1990) the activities of the defendant in seeking to disrupt a greyhound race pursuant to a plan to regain stake money he had betted (and thus a fraud), was held to be merely preparatory: he had not yet tried to get his stake money back and had not embarked on the crime proper Page 6 of 14

7 This approach was followed in A-G s Reference (no 1 of 1992) (1993) where the defendant was found guilty of attempted rape as a result of having interfered with her clothing, intimately touched her and having apparently arranged her body to facilitate intercourse though no attempt at penetration had begun. In Geddes 1996 the CA held that the crime was still at a stage of preparation when the accused ran away when he was discovered in a toilet with rope and other impedimenta with which he was intending to carry out a kidnap. Similar in Campbell the accused was held not guilty of attempted robbery when he was arrested outside a post office on his way to commit a robbery. (His argument that he had changed his mind, only succeeded on the basis that he had not already committed the offence) The cases mentioned above indicate the principled difficulty of determining at what stage the interests of crime prevention are paramount and when those of not wanting over criminalisation, should prevail. One practical problem is in relation to the fact that the offence is properly- the offence of attempting a specified substantive offence. Sometimes preparatory acts do not reveal sufficiently what in the object of the defendant actions: that would support an approach dependant on embarkation on the crime proper. (b) The concept of the impossible attempt is something of a misnomer, in that what is being referred to is an attempt to do a crime that is factually impossible in the circumstances. It is not referring to legally impossible crime. The situation is made clear in s 1(2) of the Criminal Attempts Act which states that a person may be charged with an attempt even though the facts are such that the commission is impossible. The accused is liable if his conduct would have constituted a crime if the facts had been as he supposed them to be. The problem is clearly demonstrated in the case of Shivpuri [1986], where the defendant was charged with attempting to be knowingly concerned in dealing with a controlled drug, heroin. He was found n possession of a substance he believed to be heroin, it was in fact snuff. The HL held that he was guilty of the attempt even though he could not on the facts be guilty of the complete offence. However, if the facts had been as he believed them to be, he would have committed the full offence. However if the defendant for example, believed it was an offence to import snuff and does import it, s/he does not commit the offence of attempting to supply a controlled drug, as the importation of snuff is not a crime. The impossibility relates to the facts not the desire to commit a crime which does in fact not exist. The same would apply for example in the case which arose in Anderson v Ryan 1985 where the defendant should have been found guilty of attempted handling of stolen goods, where he carried out with the necessary mens rea what would have been the actus reus, save for the fact that unknown to the defendant the goods in question were t not stolen. Thus it can be seen that unusually, an innocent act becomes a crime, albeit an inchoate one, by being carried out with a criminal intent. Page 7 of 14

8 However this ignores the peculiar nature of inchoate offences, which involve an actus reus other than that for the substantive offence. SECTION B Question 1 In this scenario, to consider the criminal liability of Alan and David it is necessary to analyse a variety of non fatal offences, the offence of criminal damage and whether any liability for Bill s death is displaced by his refusal of medical treatment. It is also possible that Alan and Bill may be guilty of conspiracy to commit a crime, based on an agreement to do so, but it is unclear from the facts what, if any offence they had agreed to carry out. The first offence is of criminal damage under s 1 of the Criminal Damage Act This appear straightforward in that an offence is committed where someone damages or destroys property belonging to another with the intention of being reckless as to whether the property is destroyed or damaged. Alan throws a brick through the window of the bar, breaking the glass. It would seem incontrovertible that he intended to or was reckless as to whether he damaged the glass. The fact that he had been drinking, even if sufficient to raise the defence of intoxication, would not avail him. He is voluntarily intoxicated and commits a crime of basic intent. [Credit was given for considering the aggravated offence] (Recklessness is canvassed below) More problematic is whether he is also guilty of battery (s39 Criminal Justice Act 1988) in that he recklessly or intentionally caused unlawful contact to Carol (Collins v Wilcox): it matters not that the contact was indirect (Haystead), or recklessly or intentionally caused another to apprehend immediate unlawful contact (also s 39). Further he may be guilty of s 47 OAPA of occasioning actual bodily harm (to Carol) each of these offences can be committed recklessly or intentionally and so the meaning of these two terms needs to be examined. It is at least arguable that that Alan did not directly intend to contact Carol in any way much less cause her injury from the glass. To deal first with the identity of the victim, it is not necessary that she in particular is the object; the doctrine of transferred malice would apply (Pembliton)[but transferred malice does not transfer from simple criminal damage to assault on a person] Intention may be found by the jury to exist if on the basis of evidence they determine that either apprehension of contact ( for assault) or actual contact ( battery) was a virtually certain consequence of his throwing the brick and that he knew it was as virtually certain consequence ( Woollin). If the outcome was not virtually certain or Alan was unaware that it was virtually certain, he may nevertheless be liable for reckless assault or battery. Since R v G, recklessness in all offences, both criminal damage referred to above, and offences under the OAPA means being aware of the risk of the result Page 8 of 14

9 (the actus reus of assault or battery) occurring as a result of your actions, and taking that risk when it was unreasonable so to do. Even if the outcome of contact with or fear of contact with an individual is not virtually certain as a result of Alan s throwing the brick, it would seem that there was a high probability, and as it is likely that Alan would be aware of that, his intoxication if it exists would not avail him Furthermore if either of the above offences can be made out, then the fact that abh resulted from the assault or battery, even though no harm was anticipated is sufficient for liability under s47 (Parmenter & Savage, Venna) Alternatively Alan may be liable for wounding under s 20, as a wound is any penetration of all of the layers of the skin, however trivial the actual injury. (Eisenhower) David responds to the injury to Carol by attacking Bill, who is not to blame. He would clearly be liable for battery and possibly abh if harm is caused, unless he has a defence available. Self defence, though this does apply to defence of others as well as oneself, would not avail him; the danger to Carol is over, and he is retaliating rather than protecting Carol. Self defence under the common law and as now dealt with by s76 Criminal Justice and Immigration Act 2008 requires an honest belief in the need for force and the use of proportionate force. It is never proportionate after a threat is clearly over (Beckford, Palmer, Clegg) It is possible that David may have a defence under s 3 of the Criminal Law Act 1967 as amended by the CJIA 2008, if his action is in the prevention of crime. Again the action must be proportionate to the threat. Alan then further intervenes to protect Bill. If Bill is under threat from David, which he clearly is, Alan is permitted to use force as is proportionate to the threat according to the same principles as are set out above. Issues of causation arise in connection with the injuries to Bill. He is injured by a vehicle. The question arises whether David is responsible for those injuries or whether they are seen as a novus actus interveniens which will relieve him of liability. The general approach is that the perpetrator is responsible for additional consequences if his action was more than a trivial contribution to the ultimate injury; if the greater consequence was foreseeable then the consequence lies at the door of the original actor. If it was foreseeable that a further injury might be occasioned David will remain responsible (Paget, Cheshire Roberts). If David is deemed responsible for the injuries, then the refusal of Bill to accept treatment will not normally relieve him of liability (Blaue, where a victim of a criminal assault refused a blood transfusion for religious reasons) However, the principle in Roberts may provide some succour for David: a victim s own action may break the chain of causation if it was unreasonable or daft. If that principle prevails then the death of Bill would not be caused by David, but if the Blaue principle prevailed he could be liable for causing the death. He may then be liable for unlawful and dangerous act manslaughter assuming that his original assault on Bill was unlawful. The act was a criminal offence (assault) it was objectively dangerous, and caused the death (Church) Page 9 of 14

10 Question 2 (a) In order to consider the criminal liability of Ed and Faisal it is necessary to consider burglary and also conspiracy to burgle. Under s 9(1) of the Theft act 1968, a person is guilty of burglary if a) he enters any building or part of a building as a trespasser and with intent to commit theft, inflicting gbh or doing unlawful (i.e. criminal) damage or (b) having entered any building or part of a building as a trespasser he steals or attempts to steal anything in the building or that part of it or inflicts or attempts to inflict on any person therein any grievous bodily harm. In this scenario both E and F are guilty of 9(1) (a) burglary. They have both entered the building as trespassers with the relevant intent. It matters not that they could not find anything to take: entry with the relevant intent is the MR for the substantive offence. Their intent was to steal which is of course defined in s1 Theft Act as the dishonest appropriation of property belonging to another with the intention of permanently depriving the other of it. There are no problematic issues save arguably a possible consideration of the dishonest element of theft. If E and F were to argue that their action was intended as recompense for nonpayment, an analysis both of the partial definition in the Theft Act s 2, which reveals what is not dishonest, and an examination of the guidelines in Ghosh would reveal that E and F are unlikely to succeed. Under s2 a person is not acting dishonestly is he has a claim of right to take the property (not applicable here) or in he believes the owner would permit him to take the property (not likely). Under Ghosh a person is not dishonest if he succeeds under either of the two tests. Is he dishonest under the standards of reasonable people? If the answer is yes, then the second test should be applied, did the defendant believe he would be considered honest by reasonable people? If so he is not dishonest. It is unlikely either test would help Ed and Faisal. As far as the burglary itself is concerned the only issue is in relation to entry as a trespasser. Ed normally has permissions to enter. However his entry is for a nefarious purpose, so he exceeds his permission, he is a trespasser, (Smith & Jones) Both E and F commit burglary. In addition they are both guilty of conspiracy to burgle, having agreed on a course of conduct which would necessarily involve the commission of an offence CLA (b) George may be liable for either fraud by false representation under s 2 Fraud Act 2006 or for dishonestly obtaining services under s11 of the Act. The section 2 offence provides that an offence is committed when a person (a) dishonestly makes a false representation, and (b )intends, by making the representation (i) (ii) to make a gain for himself or another, or to cause loss to another or to expose another to a risk of loss. Page 10 of 14

11 We can assume that the representation (that George is a representative of a national retailer) is false, in that (as provided in subsection 2): it is untrue and George knows it to be so. Gain or loss refers to gain only in terms of money or other property, and includes keeping what one has (gain) or not getting what one might get (loss). It would seem therefore that George gains by not paying for the design and Harry loses by not being paid. The section 11 offence is committed where someone obtains services by a dishonest act. It only applies to services for which payment is expected, and he obtains them knowing that and intending not to pay (c) Ira will be liable for (presumably) intentional criminal damage under the Criminal Damage Act. Wheat is property and belongs to another. The damage need not be, but probably is permanent. Lawful excuse or necessity would not run as defences. Question 3 In all the scenarios in this question a consideration is required of whether the person in question would be liable for murder. A consideration of the new partial defence of loss of control will be undertaken. (This replaces with some changes provocation and reduces murder to manslaughter.) It also will be necessary to consider involuntary manslaughter. Murder is committed when a person of sound mind and discretion causes the death of a reasonable person in being with malice aforethought (Coke s institutes, Cunningham). Malice aforethought means the intention to cause death or really serious harm (Smith). Intention signifying meaning to bring about the desired outcome, or can be inferred where the consequence of the defendant's action is virtually certain (i.e. to cause death or gbh) and the defendant is aware this is virtually certain (Woollin). As far as a) is concerned it seems apparent that Jess desires to kill Ken. However if she merely wished to cause him harm the Woollin approach would be determine whether or not the jury could infer intention. If not Jess may be liable for unlawful and dangerous act manslaughter. Assuming she would be initially liable for murder, then a consideration of loss of control arises. From October 2010, the former defence of provocation is replaced by loss of control under ss 54 and 55 of the Coroners and Justice Act Significantly for Jess the loss of control no longer needs to be sudden (s 54(2)) as under the old law. However a) she needs to have lost self control and the killing must have resulted from a loss of control. Specifically the defendant cannot use the partial defence where here action is out of a considered desire for revenge (s 54 (4) Page 11 of 14

12 It seems apparent that she was acting from a desire to punish rather than out of loss of control. That however would be a matter of fact for the jury to determine and they would be directed to consider the issue set out below if they did find a loss of control As far as b) is concerned, first we have to consider Ken s possible liability for murder. If he does not have the relevant mens rea (in that he did not realise it was virtually certain that his action would cause at least gbh), he may nevertheless be liable for constructive (unlawful and dangerous act) manslaughter or indeed gross negligence manslaughter. The former is most appropriate. If in striking Jess, Ken was committing a criminal act (there is clearly as assault unless he was acting in proportionate self defence, or public defence: both unlikely here) the offence was objectively dangerous. (Church, Newbury) The act caused Jess s death. Liability is made out. If he did have the relevant mens for murder, then again loss of control should be considered. As before the first question is the subjective one. Did Ken in fact lose control, and did that loss of control cause the death. To be eligible for the defence, the cause of the loss of control must be as a result of a qualifying trigger. The new law lists the circumstances where the law accepts it is acceptable to lose control. Qualifying triggers are set out in s 55 and are: i) the Defendant's fear of serious violence from the victim against themselves or another: ii) a thing said or done which constituted circumstances of an extremely grave character AND caused the defendant to have a justifiable sense of being seriously wronged, or a combination of the i) and ii). Self induced fear of violence is disregarded as is sexual infidelity as a thing said or done. If the trigger is within the list then the next test to apply the objective one, based on the common law developed in Camplin, Holley and Karimi: might a person of the defendant s age and sex, with a normal degree of tolerance and self restraint and in the circumstances experienced, have acted in the same or a similar way. ( Jess in a and Ken in b) As far as c is concerned, the sexual infidelity cannot be accepted as a qualifying trigger (see above) and thus Jess is most likely to be guilty of murder in c Thus in a) Jess may be liable for murder, unless a loss of self-control for a qualifying trigger is found. In b) Ken may be liable for murder, constructive manslaughter or manslaughter by loss of control And in c) Jess is liable for murder. Page 12 of 14

13 Question 4 (a) Scenarios a and c involves a consideration of the defence of automatism, so this will be defined as a starting point. Automatism is the name given to a defence that reflect that the actus reus of an offence was not under the voluntary control of the defendant. He had no or had sever impairments in the ability to control his action by his will, or his mind. Perhaps the most famous description is from the case of Hill v Baxter where a list of causes were give to explain why this condition might arise : a stroke, a blow from a stone, reaction to a swarm of bees. Other causes/conditions have been suggested: sleepwalking (Burgess) hypnosis, brain tumour, anaesthesia. A number of medical conditions notably diabetes and epilepsy have cause individuals to exhibit symptoms of automatism. However medical conditions or incidents as listed above are not the only occasions in which automatism may arise. Where an offence is concerned with control of an inanimate object and that object eg a car- is out of control so they cannot be said to be driving, principles of automatism arise. The key is that the elements that constitute the actus reus are not actually under the control of the defendant though to all intents and purpose the defendant carried the actus reus out. Automatism is dealt with in two ways: sane or simple automatism, from an external cause, or insane automatism, from an internal cause. In the scenario a, it would appear that Leo could suggest that he is suffering from automatism. As the condition emanates from an internal cause, the automatism would be dealt with an insane automatism (Bratty) and would in addition need to satisfy the McNaughton test for insanity. This would mean that the defendant has a defect of reason (apparently so) from a disease of the mind (possibly so here) so that he did not know the nature and quality of his act or did not know that it was (legally) wrong. However to rely on automatism the defendant must not be at fault: the condition must not have been self induced. If it is the defendant is treated as being responsible for his actions, Where a condition is occasioned as an unknown effect of something the defendant has done ( or some substance he has taken) the automatism will not be held to be self induced ( Quick & Paddison) Alternatively the condition might be treated as diminished responsibility which would reduce any murder charge to manslaughter. Under the CAJA diminished responsibility is a condition of abnormal mental functioning arising from a recognised mental condition that substantially impairs the defendant s ability to understand the nature of his conduct, form a rational judgement or exercise selfcontrol and provides an explanation for the act of killing because it is significant contributory causative factor in the killing. (b) This scenario involves another situation where a defendant may not be at fault for his actions in that his will was overborne by threats or by circumstances. Page 13 of 14

14 Duress allows a complete defence if the defendant believed he or another was threatened with death of serious injury if he did not carry out the crime In the case of R v Martin (1989 a woman threatened to kill herself if her husband did not drive though he was disqualified from driving. This provided a defence for him. Duress only succeeds if the individual's will was overcome by threats (or circumstances giving rise to the belief in) death or serious bodily injury (Gotts, Graham, and Hasan) and a person of reasonable firmness would do as the defendant did. In this case it would appear that Mark can avail himself of the defence if there was no reasonable opportunity of escape (Hudson and Taylor). (c) In this case, as referred to in the introduction, mechanical failure can provide a defence to crimes of strict liability (Burns v Bidder) provided the defendant is not at fault. The failure to stop was outside his control: a form of automatism. If however Neil has been at fault by failing to maintain the brakes, his defence would fail. Page 14 of 14