LEVEL 3 – UNIT 3 – CRIMINAL LAW SUGGESTED ANSWERS – JANUARY 2012 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 2012 examinations. The suggested answers do not for all questions set out all the points which students may have included in their responses to the questions. Students will have received credit, where applicable, for other points not addressed by the suggested answers. Students and tutors should review the suggested answers in conjunction with the question papers and the Chief Examiners’ reports which provide feedback on student performance in the examination. SECTION A 1. Malice aforethought is the intention to kill or the intention to cause GBH. 2. The actus reus will be the continuing act throughout the duration of the crime. It is necessary for the mens rea to be formed at some time during the actus reus. It can be at the beginning Thabo Meli 1954 or at the end Fagan v MPC 1969 or at some other stage; it can be present throughout as well. 3. The actus reus for basic criminal damage is set out in section 1(1) of the Criminal Damage Act 1971 and requires that property belonging to another must be destroyed or damaged. Damage includes non-permanent damage and whether there has been damage is assessed by the time and cost of rectifying the damage Hardman v Chief Constable of Avon and Somerset Constabulary (1986); A v R (1978). 4. Oblique intention otherwise known as indirect intention is where the defendant’s actions are virtually certain to cause the consequences. The defendant will have one purpose in mind but in achieving it, it causes other consequences. The defendant may not even desire the consequences of his action, but the result is virtually certain. Nedrick 1986, Woollin 1996. 5. The Ghosh test is objective and subjective. Firstly you look to see if what was done was dishonest according to the standards of reasonable and honest person and if so you then go on to consider whether the defendant realised that what he was doing was dishonesty by those standards. 6. Section 2(1) of the Theft Act 1968 does not define dishonesty but it does state that there may be three situations where there is not dishonestly. Those situations are where you believe you have a right to it or where you believe the owner would have given consent or a belief that the property has been abandoned or the owner can’t be found. Page 1 of 6 7. The actus reus of attempt is where there is an act which is more than merely preparatory to the commission of the offence, s1(1) Criminal Attempts Act 1981. The defendant must have gone beyond purely preparatory acts and embarked upon the crime proper. One needs to look to see if the defendant has actually tried to commit the crime rather than just preparing himself for it. Example cases showing mere preparation include Gullefer 1987, Campbell 1990 and Geddes 1996. Example cases showing an attempt include Boyle and Boyle 1987 and Jones 1990. 8. The leading case on intoxication is Majewski 1977. The case states that voluntary intoxication will be a defence to specific crimes but not to basic crimes which can be done through recklessness. The effect of intoxication is to negate the mens rea. If this does not happen then the defence will not be successful, eg Kingston 1995. 9. If duress by threats is to be successfully pleaded there needs to be a threat of death or serious harm to the defendant or a close relative. It is further necessary for there to be no safe avenue of escape for the defendant and it must be used to make the defendant commit a specific offence. The test for ascertaining whether or not there has been duress is subjective and objective.eg R v Graham (1982). 10. Strict liability is where the actus reus has taken place but there is no mens rea. Usually there is no defence to strict liability. They are known as quasi- crimes as they attract very little stigma. Strict liability crimes are often found in areas such as motoring offences, health and safety, manufacturing and the food industry. SECTION B Scenario 1 Questions 1. (a) The offence that Jason may have committed is theft under s.1 of the Theft Act 1968. Theft is defined as dishonestly appropriating property belonging to another with the intention of permanently depriving them of it. The dishonesty aspect is often considered in the light of the Ghosh test. Leading example cases include Turner 1971, Wain 1995. (b) Jason has appropriated the football which belongs to the football club. Jason would be adjudged dishonest in accordance with the Ghosh test. Was what he has done dishonest according to the standards of reasonable and honest person and if so did he realise that what he was doing was dishonesty by those standards. The answer is probably yes and therefore he is potentially guilty. eg Turner 1971, Wain 1995. 2. The defence that would be used is one of intoxication. - Intoxication does not provide a defence as such, but is relevant as to whether defendant had necessary mens rea. If the intoxication does not negate the mens rea then he will still be guilty, Kingston 1995. The defence of intoxication only applies to specific intent crimes, meaning there must be intention and that recklessness is not included and thus with basic crimes voluntary intoxication cannot be pleaded, Majewski 1976. The crime of theft is a specific crime as it requires intention, recklessness is not good enough. Providing Jason can show that his drinking alcohol negated his mens rea, he may well have a defence. Involuntary intoxication, which whilst not relevant in this scenario, is a defence to both basic and specific crimes, if it negates the mens rea. Page 2 of 6 3. (a) The offence for which Jason may be charged is basic criminal damage under s.1(1) of the Criminal Damage Act 1971. The offence requires that there is either destruction of property and this includes where property may be made useless but not completely destroyed or where property is damaged. Whether or not damage has occurred is usually determined by the cost of repairing and the time taken to repair the property, eg Hardman v Chief Constable of Avon and Somerset Constabulary (1986); A v R (1978).The mens rea required is intention or recklessness and there must be no lawful excuse for causing the damage. (b) Jason intends to kick the ball and kicks it hard in an area where there are houses and is therefore reckless. It is quite likely that he doesn’t intend to smash the window but this is irrelevant. The window has been destroyed and so this combined with his recklessness means the offence has been committed. 4. (a) The offence for which Jason is likely to be charged is the attempted theft of bottle of milk. The actus reus of attempt is where there is an act which is more than merely preparatory to the commission of the offence, s1(1) Criminal Attempts Act 1981.Has there been an attempt to commit a crime? One needs to look to see if the defendant has actually tried to commit the crime rather than just preparing himself for it. It is possible to attempt the impossible R v Shivpuri (1986). It can be inferred from foresight of consequences where the consequences are virtually certain to occur as a result of the defendant’s actions and he is aware that this is so, but recklessness as to consequences is not enough. The mens rea for attempt is essentially that of the completed crime. Cases showing attempt include Boyle and Boyle 1987, Jones 1990 and Geddes 1996. (b) The mens rea for attempt is essentially that of the completed crime. So we need to look at whether Jason was dishonest and intended to permanently deprive the owner of his property. His quietly walking down the path seems to show a dishonest intention. He is only stopped from picking up the milk by the door opening which would tend to show his actions are more than merely preparatory and that he has intention to permanently deprive. Scenario 2 Questions 1. (a) Danielle is likely to be charged with murder. Murder is a common law offence but is defined as the unlawful killing of a human being during the Queen’s peace. The defendant needs to possess malice aforethought which includes intention to kill or intention to cause GBH. (b) When Danielle smashes the glass and stabs the jagged edge into Bob there is a clear intention to cause at least GBH. She may not intend to kill but her actions are not just reckless. Bob’s death amounts to murder, Bob is a human being who has died during the Queen’s peace. 2. The partial defences to murder have been changed by the Coroners and Criminal Justice Act 2009 and the Homicide Act 1957 has been substantially repealed. The appropriate sections of the new act are sections 52-56. With the situation in hand we need to look at the two partial defences under the 2009 Act. The first is diminished responsibility which is similar to the old definition. We need to see whether Danielle has an abnormality of mental Page 3 of 6 functioning and whether it is a significant factor in causing her actions.