Subject 23 INSTITUTE OF LEGAL EXECUTIVES CRIMINAL LAW EXAMINER’S REPORT – AUTUMN 2007 Comments on Overall performance There were some very good responses to some of the questions, but the standard of exam performance was mixed. The issue of poor time management affected candidates performance. It was not unusual for candidates to leave too little time for the fourth question, or even not do a fourth question at all. Pleasingly, the allocation of the burden of proof (Woolmington) was rarely mistaken. There were, however, centres where all candidates failed, and where scripts contained no, or very little, relevant case law. General Advice to Candidates In your revision, learn the law AND the relevant authority AT THE SAME TIME. Let the cases guide your knowledge and understanding. It is hard work, but find time to practise writing exam question answers in timed conditions to reflect on what you can write (and how well) in a mere 45 minutes. If you then mark it yourself, a few days later, you will learn a lot about your exam technique (use these examiner’s reports too). Underline case names please. PART A Question 1 Suggested Answer (a) (i) Section 18. The actus reus should be established quickly. X has caused (the question makes this clear) really serious harm (Smith) and HIV+ was confirmed in Dica to be sufficiently serious. The mens rea is less likely though. X’s lies to Y may affect her capacity to give informed consent to sex (Dica) but are unlikely to mean he aimed for her to get HIV+. Even if we were to use Woollin (and its application outside murder is, of course, moot), it is unclear that he foresaw causing GBH as a virtually certain outcome. If the actus reus and mens rea were proved, however, the fact that Y consented to sex is irrelevant to liability - consent is no defence to intentional harm s. 18 (Dica and Brown). (ii) Section 20. The actus reus is given as above; and the mens rea is not difficult to prove from the evidence. He has been warned to use condoms and inform his sexual partners. Failure to do so must surely mean he foresaw some harm Page 1 of 8 (“maliciously”, Mowatt) might occur. Uninformed consent is no consent. Dica is the key case here and according to the Court of Appeal, the law centres around knowledge. Knowledge and consent are not synonymous, but consent without knowledge is unlikely to be valid. According to Mukadi as well, Y clearly did not consent to the risks associated with unprotected sexual intercourse, and X is therefore liable. (iii) Section 47. Even though liability for section 20 has been found, the question asks for an examination of section 47 as well. In order to succeed on this charge, the prosecution would have to prove that there was an assault (by battery) occasioning (which is given) and ABH (which is also given; if it is GBH, it is at least ABH, Miller, Brown). The question will be whether X intended to apply or was reckless in the application of force (Venna) which was unlawful. There is no case law exactly on point here. On the one hand, Brown says a person cannot consent to ABH, but does that mean there is a battery or not? One case may assist; Tabassum (the case where D touched women’s breasts) where the notable feature was the quality of the act as opposed to its nature. By analogy, therefore, the failure to inform Y of his HIV+ status may change the act of sex, to sex of a different quality in law, and it there may therefore be a battery. (b) In the alternative. The section 18 outcome would not change. Whether the actus reus and mens rea have been established or not, Dica provides consent is no defence. What would change, however, is the outcome in sections 20 and 47; a person can, according to Dica (but not Brown) consent to the risk of infection even with a disease as serious as HIV+ provided the person is informed of the risks. Some analysis between the conflict in the authorities was expected. Key Issues to consider Surprisingly few students mentioned consent at all. This meant those students did not identify the main issue in the question. The time and effort put into revising the actus reus and mens rea of the sections was time wasted. Consent is a very important area of law and students cannot simply learn Brown, and may be Wilson, and expect to do well. Dica has been around for long enough that students should be well aware of the judgment and its effect. The question was broken into 4 parts. The answers should also be broken into 4 parts. Most candidates did so; and it does assist us when we are marking. Question 2 Suggested Answer The charge is murder. The actus reus is causing the death of a human being. The only issue was whether A was the cause of S’s death. To be a cause, both the ‘but for’ and the legal test must be used. But for A’s act, S would not have died (cf. White) so A is the factual cause of death. In legal terms, provided his act was a more than nominal cause, it need not be the sole cause (Kimsey). This is established as the book spine hitting S on the head was a more than nominal contribution to death. Causation is then dependent on whether anything broke the chain. Page 2 of 8 First, was the tutor’s inability to help a free, deliberate and informed act? Latif and Paggett suggest it might not be (she is a trained not a professional first aider) and even Empress Cars (recently of course restricted to its facts, see Kennedy HL) would suggest it is not unusual for a first-aid trained teacher to panic. This, therefore, would probably not break the chain of causation. The acts of K and L should be considered in light of the facts and decision in Smith, and clearly would not be sufficient to break the chain, but the doctor’s negligence in misreading the scan might be viewed as so potent, independent etc. per Cheshire, Jordan that the chain of causation would be broken. Provided the law was well explained, it did not matter whether the student concluded it did or did not break the chain – as this is a matter of fact, it therefore cannot be wrong. On these facts, turning off the life-support machines is not a break in the chain of causation, Malcherek. The mens rea of murder is intent to kill or intent to cause GBH (Moloney). GBH is defined as really serious harm. We are told that A intended to cause harm, but it unclear how much. If not serious harm, the charge of murder fails. If it is serious harm, then we must deal with the fact that A intended to cause M that harm, but the charge is murder of S. It is possible to transfer his mens rea from Mark to Sheila using Latimer. There is no question of oblique intent here. Key Issues to consider The marks given reflected the number of (relevant) causation cases explained and applied, and the ability to argue whether the mens rea was established and could be transferred. A full range of case-law on causation, however, appears not to be known. Most candidates know Smith, Jordan and Cheshire, but there was not much else. Failure to mention transferred malice (but not necessarily the cases) was rare, but it did prevent the high marks. One major error here was discussing manslaughter rather than murder. The question specifies the charge. Candidates ignore it at their peril! Another was to ignore the medical negligence causation cases (above). Three points must be emphasised: 1. Adomako is not a case about causation. It is the authority for gross negligence manslaughter. 2. Medical negligence may break the chain of causation, but it does not have to be Adomako negligence. 3. The doctor’s liability was not asked for. Question 3 Suggested Answer Theft is a given. The question actually specifies that R stole the cigarettes. That means theft does not have to be established. The question also states that P died and R intended to cause P serious harm (Moloney). Murder needs no further consideration. Page 3 of 8 Accordingly, the answer is on the likelihood of the defence of duress succeeding. First, was R compelled by D’s threat to act as she did, and did she have good cause to fear death or GBH otherwise? Second, would a person of reasonable firmness have done the same thing (Martin, Howe, Hasan)? The threats that D would tell G about her ‘nasty secret’ are almost certainly insufficient alone (Valderama-Vega), but what of the threat to her ‘prettiness’? This could certainly be regarded as a threat to cause GBH. A further issue arises; is the crime nominated (Cole)? Initially it seemed to be, but then R could have bought the cigarettes, rather than steal them. Better to be in debt, than commit a crime. The next issue is that of imminence/immediacy, which is one for the jury (Hudson and Taylor cf. Hussain, Hasan) but D does specific the next day. Finally, as D is a known violent criminal, the recent decision in Hasan works against R where some previous case law might have allowed her the defence; is her duress self-inflicted through her gambling addiction? If so, the defence fails.