LEVEL 3 - UNIT 3 – CRIMINAL LAW SUGGESTED ANSWERS - JANUARY 2016

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 January 2016 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. The mens rea for murder is intention to kill or cause GBH, known as malice aforethought.

2. The mens rea for aggravated criminal damage is intention or recklessness to damage or destroy property and intention or recklessness as to whether life is endangered

3. Both the actus reus and mens rea must be present at the same time for a crime to be committed, this is the concept of a continuing act. The mens rea does not have to be present throughout and can be at the beginning Thabo Meli (1954) or at the end Fagan v MPC (1969).

4. The partial defence of diminished responsibility requires an abnormality of mental functioning that arises from a recognised medical condition. This needs to substantially impair the defendant’s ability to understand his conduct, form a rational judgement or exercise self-control. It will provide an explanation for the killing in the sense of cause or contributory factor.

5. For constructive manslaughter to exist there needs to be an illegal/unlawful act that is dangerous and leads to a death.

6. The actus reus of theft is the appropriation of property belonging to another.

7. S.2(1) of the Theft Act 1968 provides three situations which are not regarded as dishonest, namely where the defendant believes he has the right in law to take the property, the defendant believes the victim would have given consent if they knew of the appropriation and finally where the person to whom the property belongs cannot be discovered by taking reasonable steps.

Page 1 of 5 8. For there to be attempt it must be an act. An omission is not generally sufficient. The act needs to be more than merely preparatory, Boyle v Boyle (1987).

9. For mistake to succeed as a general defence it must be a mistake as to fact and not the law. The mistake must be genuine and honest but need not be reasonable.

10. There are many areas where strict liability offences are found and include food preparation, pharmaceutical products, road traffic offences, and pollution.

SECTION B Scenario 1 Questions

1. (a) The offence is one of attempted theft. Attempt is dealt with in s.1 of the Criminal Attempts Act 1981. There needs to be an act and an omission will not generally suffice. The act must be more than preparatory. The mens rea of the offence is the intention to commit the offence itself, the defendant must intend the consequences of his act. It must be an indictable or either way offence.

(b) Sam intended to take the wage packets. He was approaching the Wages Clerk desk, but changed his mind when he heard someone approaching the wages room. His actions could be considered more than merely preparatory. Campbell (1991)

(c) The defence that may be available is one of duress by threats. There must be a threat of death or serious injury to the defendant or someone he regards himself responsible for. The threat must be for the defendant to carry out a particular offence. The defendant will be viewed against a sober person of reasonable firmness to see whether they would have acted in a similar way. He must be overborne by the threat. The defence cannot be used for murder or attempted murder.

(d) It is unlikely that the defence will succeed for Sam as he is not told to carry out a particular offence, he has a potential avenue of escape and he has associated with violent criminals, e.g. Hassan (2005), Hudson v Taylor (1971).

2. (a) There has been basic criminal damage to the ornament, s.1(1) Criminal Damage Act 1971. Property must be destroyed or damaged and must belong to another. The defendant must have intended or been reckless as to the damage. The damage does not need to be irreparable and whether there has been damage will depend on the time and cost of repairing, e.g. Hardman v Chief Constable of Avon and Somerset (1986).

(b) Sam has been reckless, the ornament has been destroyed and there has been basic damage to the ornament. Recklessness is taking an unjustifiable risk and this is what Sam has done in relation to the ornament.

3. (a) The offence is theft under s.1 Theft Act 1968. There needs to be the dishonest appropriation of property belonging to another with the

Page 2 of 5 intention to permanently deprive. Dishonesty is judged in accordance with the Ghosh test.

(b) Sam was dishonest and took the box of hats belonging to another. The items left outside the charity shop door belong to the donor until the charity shop takes them into their possession. Sam has been dishonest and appropriated the hats. He had the intention to permanently deprive. E.g. Basildon Magistrates’ Court (Rickets) (2010)

Scenario 2 Questions

1. (a) Harry will be charged with murder. Murder is the unlawful killing of a human being during the Queen’s peace. The mens rea of the offence is the intention to kill or cause GBH, known as malice aforethought.

(b) Harry has killed Jane, even though he may not have intended her death. There was however intention to cause GBH by jabbing the broken champagne glass into her arm and it took place during the Queen’s peace. Oblique/Direct intention. D needs to foresee that the outcome of his actions are virtually certain e.g. Woollin (1999).

(c) The partial defence will be that of loss of control, s.54(5) Coroners and Justice Act 2009. The burden is on the prosecution to disprove the defence. Loss of control need not be sudden. There are two qualifying triggers. There can be fear of serious violence from the victim against the defendant or another identified person. The other trigger is by a thing, or things, done or said or both, which constituted circumstances of an extremely grave character that caused the defendant to have a justified sense of being seriously wronged. Neither qualifying trigger will apply if the defendant’s fear of serious violence is caused by the defendant inciting things. The characteristics of the defendant that may be taken into account are his age and sex, but the defendant must have the normal degree of tolerance and self-restraint), Attorney-General of Jersey v Holley (2005).

(d) The second qualifying trigger is the most relevant, a thing, or things, done or said or both, that caused the defendant to have a justified sense of being seriously wronged. Unlikely Defendant had normal degree of tolerance and self-restraint. Defendant’s quick temper not relevant characteristic. E.g. Case Camplin (1978), Attorney-General for Jersey v Holley (2005)

2. (a) The offence here is involuntary manslaughter. It is unlawful/constructive manslaughter. There must be an unlawful act and the defendant must have the actus reus and mens rea for this unlawful act. The unlawful act does not have to be aimed at the person who dies. The act must be dangerous and result in the victim’s death, e.g. Lamb (1967), DPP v Newbury and Jones (1976).

(b) Killing Jane is an unlawful act and although Harry’s actions are against Jane, Fred has died. There has been a dangerous act and a reasonable man would have foreseen harm. Harry knew that Fred was very old and frail; see Church (1965), Dawson (1985), Watson (1989), Attorney General’s Reference (3 of 1994) (1997).

Page 3 of 5 (c) There needs to be causation in fact and causation in law. The “but for” test is used for causation in fact, e.g. White (1910). With causation in law the act does not have to be the sole cause but a significant one, e.g. Smith (1959).

(d) We need to look at whether there was a break in the chain of causation. It is rare for medical treatment to break the chain. Did the medical staff cause the death? Is the medical staff guilty of a crime? There was probably gross negligence by the staff and there is a break in the chain, e.g. Jordan (1956).

Scenario 3 Questions

1. (a) Property is defined within s.4 of the Theft Act 1968 and can be money and all other property, both real and personal. It includes things in action and all other tangible property.

(b) Wild flowers do not amount to property, unless they are gathered for selling or commercial purposes, when it may amount to theft. Martin is not guilty as they were not picked for sale or commercial reasons.

2. (a) The offence here is one of aggravated criminal damage, s.1(2) Criminal Damage Act 1971. The offence is committed where the defendant intentionally or recklessly destroys or damages property belonging to themselves or another. In addition the defendant must intend or be reckless as to endangering life by the criminal damage. The danger to life must come from the damage or destruction, but life does not actually have to be endangered, Morphitis v Salmon (1990).

(b) By letting the air out of the tyre Shamina has caused criminal damage. The motorbike, if ridden, is now in a dangerous state and could endanger life, to the rider or another. Shamina has intentionally caused criminal damage and been reckless as to endangering life.

(c) The defence that Shamina will be considering is intoxication. Involuntary intoxication is a defence to both basic and specific crimes. Basic crimes are ones that can be carried out with intention or recklessness, whereas specific crimes require intention only.

(d) Shamina would not succeed in using intoxication as a defence to aggravated criminal damage, as the offence is a basic offence, she has voluntarily become intoxicated and the offence for which she will be charged is a basic crime. The leading case is Majewski (1977).

3. (a) The defence is one of self defence. The defendant needs to show that he used reasonable force either to protect himself or his property, s.76 Criminal Justice and Immigration Act 2008. Reasonableness of the force is judged according to the facts and circumstances as the defendant honestly believed them to be. An intoxicated mistake as to the facts or circumstances is no defence. Excessive or disproportionate force negates the defence. Honest and instinctive self defence is strong evidence that the force is reasonable.

(b) Patrick hit Martin and Martin potentially is entitled to defend himself. The question is as to whether he used reasonable force? Was it reasonable to bang his head against the pavement? The test is objective and so one looks to see if a reasonable man would consider

Page 4 of 5 the degree of force reasonable based on the defendant’s belief as to the facts and circumstances. There is a need to take into account the fear that Patrick was experiencing and as a result his ability to make judgements. Patrick’s first punch was probably using reasonable force. However, when he falls to the ground, is the threat of a further attack abated? Martin has probably used excessive force, when banging Patrick’s head on the pavement.

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