2 - Criminal Law

Question 1

Define murder.

Answer 1

Comes from common law, given by Lord Coke in 1797: “Murder is the unlawful killing of a human in being within times of peace within the realm with malice aforethought (expressed or implied)”
Has a mandatory life sentence with a minimum term set by the judge (usually 15 years).

Question 2

Explain the AR for murder.

Answer 2

From the definition:
killing - death occurs at brainstem death. (Malcharek & Steele - a doctor turning off life support isn’t the cause of death, the cause of needing the life support is.)
Can be a positive act or omission (Gibbins & Proctor - starved a child)
Human in being - A person who is fully expelled from their mother and capable of independant existence. If a foetus is injured, birthed and then dies it is murder (Attorney General’s Reference 1997)
Unlawful - all intentional killing is unlawful, including mercy killing (Inglis)
In times of peace - killing enemies in times of war is legal unless they are no longer a threat, military personal cannot legally kill on peacekeeping/UN duties etc. (Clegg)(Marine A (Blackman)).
Must have factual causation (but for test) (White)
Legal Causation - from Smith - Act of D was more than a minimal cause of the death.

Question 3

Explain the MR for murder.

Answer 3

Malice aforethought - must have formed the intention before they kill (can be just a moment)
Express malice - D intended to kill (Mohan)
Implied malice - Had intended to do a GBH (Vickers)
Direct Intent - D wanted to kill or commit a GBH
Oblique intent - If there is no direct intent but the death was a virtual certainty (Decided by the Woollin test, part 1 - outcome virtually certain, part 2 - D knew this). (Matthews & Alleyne - threw V into a river knowing they couldn’t swim)

Question 4

Describe the defence of diminished responsibility.

Answer 4

Comes from s2 of the Homicide Act 1957.
Partial special defence only for murder.
When successful murder subsisted for voluntary manslaughter, so the judge has full range of sentences.

Question 5

Explain the requirements for diminished responsibility.

Answer 5

1) From s2(1) - D has an abnormality of mental functioning, Byrne says this is ‘behaving in a way that ordinary reasonable people would say is abnormal’
2) From s2(1)(a) - Caused by a recognised medical condition (From WHO) - e.g. Depression (Seers), schizophrenia (Simcox), severe PMT (Reynolds), paranoia (Tony Martin), PTSD (Marine A), Battered spouse syndrome (Aluwahlia), Grief adjustment syndrome (Dietschmann). acute voluntary intoxication is on the list but is not accepted (Dowds).
3) From s2(1)(b) - Substantially impairs D’s ability to understand the nature of their action, form a rational judgement, or, exercise self-control. This is decided by the jury (Khan) and substantially has its dictionary definition (Golds).
4) s2(1)(c) - Provides an explanation for the killing - it doesn’t have to be the only factor but there must be a causal link. This is decided by the jury (Zebedee)
When D is voluntarily intoxicated, this is ignored and the jury decides whether it was the AMF or the intoxication that caused the killing. (Dietschmann)

Question 6

Describe the defence of loss of control.

Answer 6

Comes from s54 Coroners and Justice Act 2009.
Partial special defence only for murder.
When successful murder subsisted for voluntary manslaughter, so the judge has full range of sentences.

Question 7

Explain the requirements for loss of control.

Answer 7

1) s54(1) - proof the defendant lost self-control this is decided by the jury. There is no maximum time between the trigger and the killing but this will influence whether the jury thins there’s a loss of self-control. s54(4) - not available for a revenge killing.
2) s55 - Caused by a recognised trigger, e.g. fear of serious violence (Ward), things said or done that the jury decides are sufficiently grave to cause D a justifiable sense of being seriously wronged (Zebedee). It cannot be self-induced, or caused by infidelity (Clinton) - there can however be other triggers.
s3) Standard of Control test - Jury applies the reasonable person test, would a person of the same age sex and with a normal degree of tolerance and self-restraint, in the same circumstances acted in the same way. - Voluntary intoxication isn’t considered (Asmalesh), infidelity may be considered (Dawes)

Question 8

Describe unlawful act manslaughter.

Answer 8

Common law offence.
When there is an unlawful killing but D has no MR for murder.

Question 9

Explain the AR elements for UAM.

Answer 9

1) D must have committed a criminal act not a tort, (Franklin), (Lamb).
Must be a positive act (Lowe).
Can be a crime against property (Goodfellow) or person (Mitchell)
Can be transferred malice (Larkin)
2) Unlawful act must be objectively dangerous. decided in Church test. Jury decide whether all sober, reasonable persons would recognise the risk of some harm (Dawson - caused fear not harm so not UAM), albeit not serious arising from D’s act. (Watson - V clearly frail) (JM & SM - in a fight some harm is foreseeable)
3) Must be factual and legal causation
Factual - decided with but for test (White)
Legal - must be more than a minimal cause of the death, does not have to be the only one (Kimsey) and must be a foreseeable consequence. Chain of causation must not be broken.

Question 10

Explain the MR for UAM.

Answer 10

D must have the MR for the unlawful act, can be reckless (Newbury V Jones)

Question 11

Describe the offence of gross negligence manslaughter.

Answer 11

Common law offence. Elements given in Adamako and explained in Broughton.
An unlawful killing where one party owes the other a duty of care and negligently breaches it.

Question 12

Explain the elements of gross negligence manslaughter.

Answer 12

1) D owed V a duty of care - same as in civil law (Robinson - look at existing precedent and if none exists use the Caparo test). Landlord-tenant (Singh), doctor-patient (Adamako), parent-child (Evans), captain-crew (Litchfield), criminals owe each other a duty of care (Wacker)
2) The duty was breached. Can be a positive act or omission (Evans), Jury decides this.
3) There must be causation, factual - D’s act must cause of death ‘but for’ test (White), Legal - must be more than a minimal cause of the death and that the chain of causation isn’t broken. Victim is taken as they are found
4)There must be a risk of death not just harm (Misra), Broughton - the breach of duty must have given rise to a serious and obvious risk of death. A mere possibility isn’t enough (Rose).
5) The negligence must be gross, and ordinary person would have foreseen a serious and obvious risk of death from the breach of duty. (Adamako - a wanton disregard for the victim’s life and safety). The breach must be so bad that it requires a criminal punishment.

Question 13

Describe the defence of insanity.

Answer 13

From common law. Created following public outcry at the decision in M’Nagthen.
Rarely used for murder (usually diminished responsibility instead)
Can be raised by the judge or the defence.
If successful the verdict is ‘not guilty by reason of insanity’, judge can then chose from a range of sentences (term in a mental institution etc.)
Defence given on the balance of probabilities.

Question 14

Explain the elements of the defence of insanity.

Answer 14

Element 1 - D must have a defect of reason. Must be a complete deprivation of powers or reasoning, not just forgetfulness, absentmindedness or confusion (Clarke)
Element 2 - This must be caused by a disease of the mind. Comes from case law
Kemp - Disease is physical and mental.
Sullivan - Epilepsy is, the defect can be only temporary.
Burgess - Sleepwalking is.
Hennessy - Must have an internal cause.
Element 3 - This must mean that D does not know the nature or quality of their act. Includes delusional states and psychotic episodes (Codere)
OR knowing the nature of their act but not that it was wrong
Wrong is legally not morally (Windle)
Byrne didn’t get the defence as he knew it was wrong but couldn’t stop himself.

Question 15

Describe the defence of automatism.

Answer 15

When the lack of control has an external cause.
Complete defence.
An act done by the muscles without any control by the mind - Bratty.

Question 16

Explain the elements of the defence of automatism.

Answer 16

Element 1 - D must have a complete loss of control not just partial, reduced or impaired control (AG’s Ref. No.2 (1992))
Element 2 - Must be caused by an external factor. Blow to the head (Bratty), swarm of bees (Hill V Baxter), PTSD (R V T), sneezing fit (Whoolley).
Element 3 - Must not be self-induced. Clarke - a diabetic with poorly controlled blood sugar not testing before driving is self-induced.
Bailey - If someone has an adverse reaction to medication and hasn’t taken it recklessly it isn’t self-induced. When it is self-induced the intoxication rules apply (Coley).

Question 17

Describe the defence of intoxication.

Answer 17

Common law defence.
Not a true defence but a lack of MR.
Rarely a full defence.
Effect of the defence varies on the type of offence.

Question 18

Describe the elements of the defence of intoxication.

Answer 18

Element 1 - The intoxicant must be recognised by the courts. Alcohol and recreational drugs (Majewski), solvents, prescription drugs (Hardie).
Element 2 - The intoxication must be so extreme that D is unable to form MR and has a complete absence of MR (Beard). Drunken intent is still intent (Sheehan & Moore), has to be no MR not just a loss of inhibitions (Kingston).
INVOLUNTARY INTOXICATION:
If spiked, prescription drugs taken correctly with an adverse reaction, taking soporific drugs for the right reasons (Hardie).
If the other elements are passed then this is a complete defence to all crimes.
VOLUNTARY INTOXICATION:
If chosen to consume (Majewski), consumed without knowing the strength (Allan), drank for Dutch Courage (Gallagher).
Majewski rules apply - Intoxication is a defence to all specific intent crimes (Beard), fall back rule will apply (murder swapped for manslaughter, s18 swapped for s20) No fall back for theft so will walk free.
Mistakes about self-defence from intoxication is no defence (O’Grady)
Mistake about criminal damage if D believes the owner would have consented is a full defence (Jaggard V Dickinson).

Question 19

Evaluate the defence of intoxication.

Answer 19

FAIR- Decision in Hardie is fair as he took medication for the right reasons despite not being prescribed it. Don’t want to criminalise non-criminals. This doesn’t give the right public policy message and the LC wanted to abolish this precedent.
INCONSISTENT - No fall back for theft. Goes against rule of law as it doesn’t apply to all people the same. Different from other defences. Jury often has to fantasise (Kingston). Goes against the rules of criminal law as there is no coincidence of AR & MR (Gallagher), assumes being intoxicated is reckless. Different to the policy in Australia (No MR, no crime).
ILLOGICAL - No clear definition of basic and specific intent crimes, the LC’s proposal to reform this was still unclear. Attempted definition given in Majewski but two judges gave different definitions.
PUBLIC POLICY - More important than justice. Required as a deterrence, allowing some the defence would open the floodgates (Allan). Over half of all violent crimes are done while intoxicated.
MORALITY - D having no knowledge isn’t enough. Harsh decisions given for public policy, unfair on individuals (Kingston).

Question 20

List specific and basic intent crimes.

Answer 20

Basic - Maslaughter (Lipman), s20 & s47 (Majewski), Rape (Fotheringham), Criminal damage.
Specific - Murder (Beard), s18, Theft, Robbery, Burglary, Attempted crimes.

Question 21

Describe the defence of consent.

Answer 21

Common law defence.
Defence of justification.
Full defence.
General defence but isn’t available for all crimes.

Question 22

Describe the requirements for the defence of consent.

Answer 22

Element 1 - Nature of the consent.
Can be expressed (Verbal or written (Locke - 50 shades of grey)) or implied (General hustle and bustle, a genuine mistake about implied consent is valid (Aitken)).
The consent is invalid if:
Given through fraud (Tabassum), given by someone without capacity (Burrell & Harmer), given through fear (Olugjoba), given through duress, or if the consent is not informed (Dica).
Element 2 - Is the defence allowed for the offence.
Generally available to all assaults and batteries (Collins V Wilcock)
Not normally available for s47 and s20 (Is if: properly conducted sport, legal surgery, legal chastisement of children, and legal public exhibitions (circus etc.) - Judges can add to this list as it is common law).
May be available for involuntary manslaughter (Slingsby).

Question 23

Evaluate the defence of consent.

Answer 23

Overly paternalistic - Sadomasochism, why should judges decide what people do in their private lives. Other laws protect the young and vulnerable. Society has changed since the decision in Brown. Allowed by the jury in Locke.
Protects the young and vulnerable - not everyone can give consent (Burrell & Harmer) - leads to unfair convictions. Young not protected in Jones. Horseplay can’t be hostile (DDP V P).
Inconsistent - decisions in Wilson and Brown different and in Richardson and Tabassum.
Informed consent - protects the public (different decisions in Clarence and Dica - because Clarence is Victorian, good that its in the common law so that the decisions can be different.)
There is no public interest in hurting others, consent or not - costs the NHS.

Question 24

Describe the basic principles of actus reus.

Answer 24

Doing part of the crime.
Crimes where the conduct itself is the crime are called conduct crimes. (Possession of a class A drug).
Crimes where the conduct causes the crime are called result crimes (murder).
The AR can be a positive act which is performed voluntarily, if it is involuntary it is often not a crime (Hill V Baxter).
State of Affairs crimes can be done involuntarily. (Larsonneur - Women deported, went to Ireland and was brought back to the UK).
The AR can also be an omission, especially if their is a duty of care (Gibbins & Proctor).

Question 25

Describe omissions as AR.

Answer 25

Parliament can create statutory offences where the AR can be an omission (like in the Road and Traffic Act 1988).
Also applies when there is a special relationship (Gibbins & Proctor), when D has volunteered to care for someone but fails to do so adequately (Stone V Dobbinson), when D has created a dangerous situation and fails to do anything about it (Miller - D set mattress alight with cigarette and just moved somewhere else), when D is contractually obliged (Pitwood), and when D fails to act when they are in a public office (e.g. policeman doesn’t help (Dytham))

Question 26

Describe causation.

Answer 26

There must be factual and legal causation for someone to be guilty of a result crime.
Factual - ‘but for’ test, would the consequence have happened but for D’s act. (White - D poisoned his mothers drink but she died before drinking it, not guilty of murder as there is no factual causation) (Pagett - pregnant girlfriend used as a human shield).
Legal - Is it fair and just to hold D responsible for the consequence. D’s conduct has to be more3 than a minimal cause for the result (Kimsey) but it doesn’t have to be the only cause.
The chain of causation mustn’t be broken, can be broken by the act of the victim, the act of a third party or an unexpected natural event. (Cheshire - doctor’s act will only break the chain of causation if it was so potent and separate from D’s act). Act of V won’t break the chain if it is foreseeable (Jordan)
The thin skull rule is the idea that V is taken as they are found (Blaue - Jevoah’s witness refused a blood transfusion that would’ve saved her, D still charged as the act was the cause of the death).

Question 27

Describe mens rea.

Answer 27

The mental part of the crime.
Direct intent - The consequence was D’s intention (Mohan).
Oblique intent - A type of intention made for specific crimes. The test comes from Woollin - the consequence was a virtual certainty and that D knew this.
Recklessness - when D recognises that there is an unjustifiable risk from his action but still does it decided with a subjective test from Cunningham and backed up in R V R & G.

Question 28

Describe coincidence of MR and AR.

Answer 28

The AR and MR must exist contemporaneously. Courts have developed exemptions to ensure conviction
D can have the MR before the AR (Thabo-Meli). AR can be done and then D forms the MR (Fagan).

Question 29

Describe transferred malice.

Answer 29

D can have the MR and does the AR against someone else they are still guilty. Must be person-person (Latimer) or property-property not person-property (Pembliton).

Question 30

Describe strict liability offences.

Answer 30

SLOs are crimes which don’t require an MR. The AR must be voluntarily performed (Winzar).
SLOs often are in areas about public protection like food hygiene (Callow V Tillstone), or environmental safety (Alphacell V Woodward). They also exist to protect the young and vulnerable (Shah & Shah).
They are mostly made by parliament and judges don’t like convicting people of them but there are some from older cases (Lemon & Whitehouse V the Gay News - editors and publishers of the gay news were convicted of blasphemy for suggesting Jesus and his disciples did things). Some newer ones invlude Gibson V Sylveine (Convicted of outraging public decency for having an artworl of a dried human foetus)..

Question 31

Describe the offence of assault.

Answer 31

Comes from the common law, charged and sentenced in s39 of Criminal Justice Act 1988.
Intentionally or recklessly causing the victim to apprehend the immediate infliction of personal violence.
AR 1) must cause V to fear that some force will be applied to them, no physical contact or harm needed. Can be words (Constanza), silence (Ireland). There must be some evidence that V thought there would be force applied to them soon (Smith V CC of Woking Police).
MR 1) D must either have direct intent (Mohan), or been subjectively reckless (Cunningham test - did D know there was a risk of doing it and still did it.
ALL ELEMENTS OF MR AND AR MUST BE SATISFIED AS WELL.

Question 32

Describe the offence of battery.

Answer 32

Common law offence charged in s39 of the Criminal Justice Act 1988.
Intentionally or recklessly applying unlawful force on the victim.
AR 1) There is no requirement for harm or injury, just the application of force - can be the slightest touch (Collins and Wilcock). but has to be more than the general hustle and bustle of everyday lige. It can be directly applied or indirectly through another person (Mitchell), through clothing (Roberts), or through an object (DPP V K). The application must be hostile.
MR 1) Direct intent (Mohan), or recklessness (Cunningham test - did D know there was a risk and did it anyway).
ALL ELEMENTS OF MR AND AR MUST BE SATISFIED AS WELL.

Question 33

Describe the offence of ABH

Answer 33

Comes from s47 of the Offences Against the Person Act 1861 - Assault occasioning actual bodily harm.
This is aggravated assault and battery.
MUST SATISFY THE AR AND MR OF ASSAULY OR BATTERY.
AR) actual bodily harm must have been caused. Miller - any hurt or injury which interferes with the health or comfort of the victim.
The injury can be more than transient but not serious or permanent, it could also be a psychiatric injury (depression etc.) (Chan Fook). Can be a period of unconsciousness (DPP V T). Can be cutting hair (DPP V Smith).
MR) D only has to have the MR for the original assault or battery. (Savage)(Roberts).
ALL ELEMENTS OF MR AND AR MUST BE SATISFIED AS WELL.

Question 34

Describe the offence of GBH without intent.

Answer 34

s20 OAPA 1861.
D unlawfully wounds the victim or inflicts GBH with the intention of recklessness about causing some harm.
AR) A wound is if all layers of the skin are broken, internal bleeding isn’t a wound (Eisenhower), it is serious harm not serious injury (Saunders), can include serious psychiatric conditions (Burstow_, it can be biological (Dica), multiple cuts or bruises could be s20 rather than s47 (Brown & Stratton).
MR) D must have direct intent to cause some harm but not serious harm or been reckless about causing some harm (Cunningham test - did D know there was a risk of the harm but still did it. If D didn’t see the risk than it is s47).
ALL ELEMENTS OF MR AND AR MUST BE SATISFIED AS WELL.

Question 35

Describe the offence of GBH with intent.

Answer 35

s18 OAPA 1861.
D unlawfully wounds the victim or inflicts GBH with the intention to cause serious injury.
AR) A wound is if all layers of the skin are broken, internal bleeding isn’t a wound (Eisenhower), it is serious harm not serious injury (Saunders), can include serious psychiatric conditions (Burstow_, it can be biological (Dica), multiple cuts or bruises could be s20 rather than s47 (Brown & Stratton).
MR) D had the intent to cause serious harm or injury can be direc tintent or oblique intent (Woollin).
ALL ELEMENTS OF MR AND AR MUST BE SATISFIED AS WELL.

Question 36

Evaluate the offence of assault.

Answer 36

Common law.
Wording is unclear and confusing, words not commonly used anymore or have changed definition.
The MR is satisfactory.
Law Commission report 2015 would replace assault with threatened assault to make it more modern and accessible.

Question 37

Evaluate the offence of battery.

Answer 37

Common law means its flexible and easily changed - both good and bad.
Language used is antiquated.
Difficult to know where to draw the line between battery and ABH.
Battery sentence is max 6mths and s47 is max 5yrs, too big a gap for not much difference in crime.
The AR is interpreted to mean a lot of different things.

Question 38

Evaluate the offence of s47.

Answer 38

OAPA 1861 - very old, doesn’t keep up with modernity, can’t be changed as is in statute. Many of the words used have multiple meanings and interpretations which makes it confusing.
MR and AR don’t have to match which goes against principles of fault or blame and goes against rule of law.

Question 39

Evaluate the offence of s20 & s18.

Answer 39

OAPA 1861 - very old, doesn’t keep up with modernity, can’t be changed as is in statute. Many of the words used have multiple meanings and interpretations which makes it confusing.
Wounding not defined and the decision in Eisenhower is ridiculous. GBH isn’t defined in the act developed through case law.

For s20: Constructed liability - AR and MR don’t match. Has the same sentence as s47 despite being significantly more serious.
Immoral to sentence recklessness?

Question 40

Describe the defence of self-defence.

Answer 40

Common law defence but is now in s76 Criminal Justice Act 2008.
Defence of justification.
Results in a full acquittal.
Controversial defence and very political.
Tries to balance the right of a person but not allow it as an excuse for criminal activities, vigilantism, or revenge

Question 41

Explain the defence of self-defence.

Answer 41

1) Did D believe that some force was necessary. Jury decides (s76(4)).
s76(4)(b) - a genuine sober mistake is allowed (Williams).
s76(5) - an intoxicated mistake isn’t allowed (O’Grady).
D can deal the first blow - Beckford (Jamaican case - persuasive precedent).
D doesn’t have to show an unwillingness to fight (Bird). s76(6A) - Jury considers if they could’ve got away and whether they should be allowed Bird.
D can make preparations in self-defence (AG’s Ref. 1984).
D can’t act in revenge or as a vigilante (Hussain).
D can make threats in self-defence (Cousins)
2) The force used must be proportionate to the threat. (s76(1)).
s76(6) - defence available for non-householders if the force is not disproportionate.
s76(5A) - defence available for householders if the force is not grossly disproportionate. (Has to be a dwelling and V must be a trespasser)
Jury decides this and the CPS said that no jury would not allow the defence for a homeowner.
s76(7)(a) - D isn’t expected to know the exact amount of force necessity (weigh to a nicety (Palmer)).
s76(7)(b) - If D acted honestly and instinctively this is good evidence for the defence.
If the force is disproportionate then the defence fails (Clegg) (Palmer).
The danger must not have passed (Clegg) (Martin).

Question 42

Evaluate self-defence

Answer 42

Trying to strike a balance between the rights of he victim and the rights of the defendant whilst trying to prevent vigilantism and revenge crimes.
The wording in the Act is vague - could be good as it is open to interpretation but could meant hat the law is unclear and doesn’t apply the same to everyone (goes against rule of law).
Intoxicated mistakes - fit for purpose as it is for public policy purposes. but unfair,
The amendment in Bird makes its use inconsistent as it is up to the jury - goes against rule of law.
Decision in Beckford is fair as you can’t wait to be killed to kill.
Hussain - Shouldn’t take the law into your own hands - fit for purpose, fair balance between rights of D and V.

Question 43

Describe the defence of duress.

Answer 43

Common law defence.
Complete defence, available for most crimes (not murder or attempted murder).
Excusatory defence - did not do it out of free will.

Question 44

Explain the defence of duress.

Answer 44

Element 1) There must be a threat of serious personal injury or death (Valderrama Vega) (not psychiatric injury). The threat must be towards D or someone D feels responsible for (Wright), not society at large (Shayler).
D must believe that the threat will be carried out almost immediately (Hasan).
For duress by threat: the threat must specify the crime (Cole - told to find get money so robbed a post office, didn’t get the defence as he wasn’t told to rob a post office).
Element 2) Not available if:
for murder (Howe) or attempted murder (Gotts).
there was a n opportunity to escape or seek police protection (Gill).
D is a part of a violent criminal gang or willingly associating with someone you knew to be violent (Hasan).
Element 3) Graham test.
part 1 - did D genuinely believe the threat, they can have made a mistake about it (Cairns).
part 2 - would a sober person of reasonable firmness, sharing characteristics of D have been able to resist the threat (Bowen).

Question 45

Describe and explain the defence of necessity.

Answer 45

When D has no choice but to commit the lesser of 2 evils.
Full defence.
Old defence (Mouse’s Case 1608 - man escaped burning prison).
Rarely succeeds nowadays - mainly in medical cases (Re A - conjoined twins had to be separated to save 1 or both die).
Element 1) The act is necessary to avoid an inevitable evil.
Element 2) The evil inflicted isn’t disproportionate (Quayle).

Question 46

Describe theft.

Answer 46

Rules set out in Theft Act 1968.
Defined in s1(1) - A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it.
Triable either way offence.

Question 47

Explain theft.

Answer 47

MR 1) s2 - dishonestly
Not defined in the act but gives 3 times when D is not dishonest: s2(1)(A) believe they have a legal right (Holden), s2(1)(B) believe the owner would have consented, s2(1)(C) D believes the owner cannot be discovered (Small).
Ivey test if these don’t apply. part 1 - consider the facts as D believes them, part 2 - is what D did dishonest by the standards of decent ordinary people. Civil test confirmed for criminal by Barton & Booth,
AR 1) s3 - appropriation.
assuming any of the rights of the owner, including selling (Pitham), or interfering with the owners rights (Morris).
Consent not relevant for this (Lawrence)
Does not have to be in possession (Pitham).
Accepting gifts dishonestly (Hinks).
Is not a continuing act (Atakpu & Abrahams - stole a hire care in EU and brought it to the UK, not appropriation as it happened outside UK.
AR 2) s4 - Property
Includes money, intangible things and things in action.
Not property: s4(2) - Land, s4(3) wild foliage, s4(4) wild creatures. Confidential info. (Oxford & Moss), corpses (Kelly) (Body parts kept for other things like research are property).
AR 3) s5 - belonging to another
is if any person has possession or control, or having any proprietary interest or right.
Can steal your own property (Turner - had his car fixed and took it back without paying).
MR 2) s6 - intention to permanently deprive.
d treats property as their own regardless of owner’s rights (Lavender - D switched 2 doors of 2 council houses).
Includes borrowing if it loses some of its goodness or virtue (Lloyd).

Question 48

Describe robbery.

Answer 48

s8 Theft Act 1968.
D steals and immediately before or at the time of, in order to steal, uses fore or seeks to put someone in fear of force.
Indictable offence.

Question 49

Explain robbery.

Answer 49

AR 1) There must be a theft (Guy). all elements of theft satisfied.
AR 2) D uses force or puts V in fear of force,
force has its dictionary definition and the jury decides if there is force (Dawson & James).
Snatching doesn’t satisfy this (RP & Others).
D doesn’t have to have fear as long as D intended this (B & R V DPP).
Can be applied directly or indirectly (Corcoran V Anderton).
AR 3) Immediately before or at the time of stealing, this can be a continuing act (Hale).
AR 4) Force can be on any person, towards V or someone close to V.
AR 5) In order to steal.
Opportunistic stealing doesn’t count (James), the forced must be used to steal - if not then it is theft and an OAP.
MR 1) D must intend to use force, can be direct (Mohan), or oblique (Cunningham).

Question 50

Describe burglary.

Answer 50

s9(1) Theft Act 1968
Entering a building without permission with the intention to commit theft or GBH or property damage.

Question 51

Explain burglary.

Answer 51

AR 1) Entry - not defined in the act. Must only be effective, doesn’t have to be substantial. (Ryan - got stuck in window trying to enter a house).
AR 2) Entry of a building, includes any inhabited vehicle or vessel (s9(4)).
Building is a structure with some permanence.
Doesn’t have to be a building (B & S V Leathley - lorry container not on wheels) - if on wheels then isn’t a building (Norfolk Constabulary v Seeking & Gould).
AR 3) D must be a trespasser
D can enter as not a trespasser but become one (Smith & Jones),
MR 1) D must intend or be reckless about trespassing.
D must enter the building and intended to do theft, GBH or criminal damage. D doesn’t have to have attempted to commit them yet.
OR
Having entered D has the MR to commit theft or GBH or attempted.

Question 52

Describe attempted crimes.

Answer 52

Criminal Attempts Act 1981.
Inchoate offence.
Not all offences have attempts (manslaughter).

Question 53

Explain attempted crimes.

Answer 53

AR) Must be more than merely preparatory.
decided by jury (Campbell).
D must have embarked on the crime proper (Gullefer).
D must have moved from preparation and planning to implementation and execution (Geddes).
When it is MTMP) Boyle & Boyle - found outside a premises with a broken lock, Tosti - D’s caught with lock cutting equipment looking at a lock.
D doesn’t have to have done the final act (Jones) (AG’s Ref. 1 of 1992 - couldn’t rape cos couldn’t get hard).
MR) D must have intention to commit the full offence.
Recklessness not usually sufficient (Millard and Vernon) - never recklessness to consequences, can be recklessness to circumstances (Khan). For murder the only intention is to kill (Whybrow).
For conditional theft the intention is to steal ‘contents’ (AG’s Ref)
IMPOSSIBILITY
s1(2) - can be convicted of attempting the impossible - can be legal or factual. Shivpuri - D tried smuggling cocaine but it was vegetable powder.
There is no defence of withdrawal (Toothill),